United States v. Henry Underwood

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1303
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HENRY UNDERWOOD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 20-CR-33 — Holly A. Brady, Chief Judge.
____________________
ARGUED DECEMBER 1, 2023 — DECIDED DECEMBER 18, 2023
____________________
Before WOOD, ST. EVE, and LEE, Circuit Judges.
ST. EVE, Circuit Judge. Henry Underwood chose to repre-
sent himself at trial on a felon in possession of a firearm
charge. After taking the stand to testify in his own defense, he
attempted to invoke his Fifth Amendment right to silence
when the prosecutor questioned him on cross-examination.
For his continued refusal to answer the prosecutor’s question,
the judge held him in criminal contempt. Separately, the jury
found him guilty of the charged offense. He now asks us to
2 No. 23-1303
find that his pretrial waiver of counsel was not knowing and
voluntary, and that the criminal contempt finding was im-
proper. We reject both arguments.
I. Background
In December 2019, Underwood was involved in an alter-
cation culminating in shots fired outside of a Fort Wayne, In-
diana home. Later, police detained Underwood after he exited
a vehicle they suspected had been on the scene of the shoot-
ing. Under his seat, they discovered a loaded semi-automatic
pistol with an extended magazine; they also recovered addi-
tional ammunition from the pocket behind the driver’s seat.
Underwood was arrested and, because of a previous felony
conviction, later indicted in 2020 on a felon in possession of a
firearm charge in violation of 18 U.S.C. § 922(g)(1).
In February 2022, several months before trial, Under-
wood’s court-appointed attorney moved to withdraw, citing
differences of opinion over defenses, motions, and filings and
explaining that Underwood had requested to proceed pro se.
At a hearing conducted by the assigned magistrate judge a
few days later, the judge first permitted counsel to withdraw.
Then, after a reminder from the prosecutor, the judge in-
formed Underwood of the difficulties of proceeding pro se,
inquired into his training and experience, and asked again if
he would like new appointed counsel or standby counsel. Un-
derwood reaffirmed his desire to represent himself but re-
quested the assistance of standby counsel. The judge thus
granted Underwood’s request.
Representing himself, Underwood actively participated in
pretrial proceedings, filing and responding to motions and is-
suing subpoenas. At trial, he cross-examined witnesses and
No. 23-1303 3
called several others on his own behalf while regularly con-
ferring with standby counsel.
Witnesses gave conflicting testimony at trial about
whether Underwood had a gun at the December 2019 alterca-
tion. Some reported seeing Underwood with a gun, which he
later handed to someone else. Others asserted that Under-
wood never had a gun. Taking the stand in his own defense,
Underwood testified that he never possessed a gun on the day
of the shooting, nor did he own the firearm police found in
the car. It was someone else, he claimed, who had the gun.
Naturally, the prosecutor asked Underwood the name of
that person on cross-examination. But Underwood refused to
answer, pleading the Fifth and stating that he did not want to
be a “snitch.” The judge intervened, first calling a sidebar and
then declaring a recess. She questioned Underwood about his
refusal to testify, informed him that the Fifth Amendment
could not protect him from incriminating someone else, and
warned him of the consequences if he did not answer the
question, including the criminal contempt consequences. De-
spite the judge’s repeated warnings, Underwood refused to
answer, although he admitted his response would not incrim-
inate himself.
At the trial’s conclusion, the jury found Underwood
guilty. A few months later, the district court judge issued a
summary contempt order under Fed. R. Crim. P. 42(b). She
later sentenced Underwood to 96 months for his violation of
§ 922(g)(1) and an additional 6-month consecutive sentence
for criminal contempt.
4 No. 23-1303
II. Analysis
On appeal, Underwood requests a new trial on the basis
that his pretrial waiver of the Sixth Amendment right to coun-
sel was not knowing and voluntary. He also appeals his crim-
inal contempt conviction.
A. Waiver of Right to Counsel
We review a district court’s legal determination that a de-
fendant waived his right to counsel de novo and its underly-
ing factual findings for clear error. United States v. Johnson, 980
F.3d 570, 576 (7th Cir. 2020) (citing United States v. Balsiger, 910
F.3d 942, 951–52 (7th Cir. 2018)).
The Sixth Amendment ensures a criminal defendant’s
right to representation by an attorney. Faretta v. California, 422
U.S. 806, 807 (1975). But a defendant can waive that right and
choose to represent himself when that choice is made know-
ingly, intelligently, and voluntarily. Id. at 835; see also Iowa v.
Tovar, 541 U.S. 77, 88 (2004). Because legal representation is so
crucial in the criminal process, we “indulge every reasonable
presumption against the waiver.” United States v. Jones, 65
F.4th 926, 929 (7th Cir. 2023) (quoting United States v. Belanger,
936 F.2d 916, 919 (7th Cir. 1991)). Despite that presumption,
however, “[w]hen such a [knowing and voluntary] waiver is
timely made by a competent defendant, a trial court may not
deny it.” United States v. Banks, 828 F.3d 609, 614 (7th Cir.
2016).
Importantly, the right to proceed pro se is not contingent
upon the defendant’s abilities or likelihood of success, but on
whether he waived the right knowingly and voluntarily.
“Both savvy and foolish defendants have a constitutional
right to self-representation.” Johnson, 980 F.3d at 578. It is the
No. 23-1303 5
defendant’s awareness of the challenge of proceeding pro se,
not his capability in overcoming it, that we must assess when
evaluating whether the district court properly permitted the
defendant to exercise that right.
We consider four factors when evaluating whether a de-
fendant knowingly and voluntarily waived the right to coun-
sel, considering the record as a whole. Id. at 577 (citing United
States v. Eads, 729 F.3d 769, 775 (7th Cir. 2013)). “We look first
to the extent of the district court’s formal inquiry into the de-
fendant’s waiver of counsel, if any; next to other evidence in
the record showing the defendant understood the dangers
and disadvantages of self-representation; then to the defend-
ant’s background and experience; and finally to the context of
the choice to proceed pro se.” Jones, 65 F.4th at 929.
Underwood argues that the magistrate judge’s formal in-
quiry was deficient and that the other factors do not overcome
that deficiency. We disagree.
1. Formal Inquiry
We have emphasized the importance of “a thorough and
formal inquiry,” referred to as a Faretta colloquy, “in which
the court asks the necessary questions and imparts the neces-
sary information.” United States v. Clark, 774 F.3d 1108, 1112
(7th Cir. 2014). This inquiry requires judges to walk a “razor’s
edge.” See United States v. Oreye, 263 F.3d 669, 672 (7th Cir.
2001) (“If the judge exaggerates either the advantages of being
represented or the disadvantages of self-representation, he
will be accused of having put his thumb on the scale.”). On
the one hand, “[i]f a Faretta colloquy is too cursory, it may be
insufficient to guard against an unknowing waiver of the right
to counsel.” United States v. Stapleton, 56 F.4th 532, 539 (7th
6 No. 23-1303
Cir. 2022). On the other hand, “if the colloquy is too exacting,
it risks depriving the defendant of his right to represent him-
self” by relentless questioning that ultimately causes the de-
fendant to give up the right he sought to exercise. Id.Here, the magistrate judge’s inquiry, though not as thor-
ough as it might have been, adequately informed Underwood
of the dangers of self-representation. It would have been pref-
erable for the magistrate judge to have reiterated the penalties
Underwood faced to underscore the gravity of his decision.
Nevertheless, the magistrate judge did warn Underwood that
proceeding pro se “is nearly always unwise,” that he “may
conduct a defense to [his] disadvantage,” that the government
had professional attorneys, and that he too could have a
knowledgeable and professional attorney. He also admon-
ished Underwood that he would not be treated more leniently
or held to a different standard with respect to rules of law and
procedure simply because he was representing himself, and
he would be expected to know and comply with those rules.
The judge also asked Underwood if he was aware that he
would have the opportunity to present defenses and mitigat-
ing circumstances, to which Underwood replied in the affirm-
ative. On appeal, he contends that the judge should have
listed specific defenses for him, citing the Supreme Court’s
decision in Von Moltke v. Gillies, 332 U.S. 708, 724 (1948) (Black,
J., plurality opinion). In that case, the Court noted that at the
guilty plea stage, a defendant’s waiver of the right to counsel
“must be made with an apprehension of … possible defenses
to the charges and circumstances in mitigation thereof.” Id.This statement does not require judges to list the specific de-
fenses a pro se defendant should consider. In fact, the Von
Moltke Court itself noted that the inquiry will depend upon
No. 23-1303 7
“the circumstances of the case.” Id. at 723. Aware that differ-
ent circumstances may require variations in inquiry, we will
not adopt a formulaic script here. Indeed, it would be unwise
to require district court judges to step in as defense attorneys,
especially when they are only generally aware of the facts of
a given case and potential defenses that may be available. The
magistrate judge did not fall short by simply informing Un-
derwood that he would be able to present defenses on his own
behalf.
Although not mandated for a Faretta colloquy, we remind
judges that the Benchbook for United States district court
judges provides the relevant questions and topics about
which criminal defendants seeking to represent themselves
should be informed. To be sure, “we do not read any of this
court’s decisions to hold that the litany is prescribed in every
case or that advice about any particular disadvantage of self-
representation is essential; such a reading would put us at
odds with the Supreme Court.” United States v. Hill, 252 F.3d
919, 928 (7th Cir. 2001). Yet “asking the Benchbook questions
may ensure that the defendant has his eyes open.” Id. We en-
courage presiding judges to rely on this list of questions as a
guide.
2. Other Factors
Besides the formal inquiry, the other three factors rein-
force our conclusion that Underwood knowingly and volun-
tarily waived his right to counsel.
Evidence of Understanding. First, Underwood’s active
participation at trial and regular consultation with standby
counsel indicate that he knew the choice he was making when
he elected to proceed pro se. Reliance on standby counsel
8 No. 23-1303
“reflect[s] ‘an appreciation for the difficulties of self-
representation.’” Balsiger, 910 F.3d at 954 (quoting United
States v. Todd, 424 F.3d 525, 533 (7th Cir. 2005)). Active
participation at trial by making motions, offering evidence,
conducting cross-examinations, and impeaching witnesses is
further evidence that a defendant’s waiver was made
knowingly and intelligently. Todd, 424 F.3d at 533.
Underwood’s activity at trial indicates an appreciation for the
task he took on when he elected to represent himself.
Background and Experiences. Second, Underwood’s back-
ground demonstrates that he comprehended the challenges
he faced by proceeding pro se. We examine a defendant’s
background “not in hopes of finding adequate legal training,
but merely to gauge whether he appreciated the gravity of his
waiver.” United States v. Volpentesta, 727 F.3d 666, 677 (7th Cir.
2013). Underwood’s experience with the legal system, includ-
ing two prior felony convictions and one murder acquittal by
a jury, indicates he possessed knowledge of the complexities
of procedure and trial sufficient to make him aware of the task
he was undertaking.
Reason for Waiver. Finally, Underwood chose to proceed
pro se after a disagreement with his appointed counsel over
his defense and trial strategy. “A defendant who waives his
right to counsel for strategic reasons,” including the decision
to proceed without counsel due to differences in opinion re-
garding defense strategy, “tends to do so knowingly.” United
States v. Harrington, 814 F.3d 896, 900 (7th Cir. 2016). We there-
fore presume Underwood’s choice in this instance to have
been strategic and intentional.
No. 23-1303 9
* * *
Considering all factors here, including the formal inquiry,
Underwood’s performance at trial, his background experi-
ence, and the reason for his decision to represent himself, we
find ample evidence that Underwood knowingly and volun-
tarily waived his Sixth Amendment right to counsel.
B. Criminal Contempt
Underwood also challenges the district court’s summary
disposition of criminal contempt. We “give careful and metic-
ulous consideration to the trial court’s decision that summary
disposition is appropriate.” F.T.C. v. Trudeau, 606 F.3d 382, 386
(7th Cir. 2010) (quoting United States v. Moschiano, 695 F.2d
236, 252 (7th Cir. 1982)). But once “the literal requirements of
the summary disposition rule are met, we review the district
judge’s decision to impose it for an abuse of discretion.” Id.Federal Rule of Criminal Procedure 42(b) permits sum-
mary disposition or punishment of criminal contempt if the
contemptuous conduct happened in the judge’s presence and
if “a compelling reason for an immediate remedy” exists “or
time is of the essence.” United States v. Britton, 731 F.3d 745,
749 (7th Cir. 2013) (cleaned up). A witness’s improper refusal
to testify is one such compelling reason. United States v. Wil-
son, 421 U.S. 309, 316 (1975).
Because Underwood improperly refused to testify on
cross-examination in the judge’s presence, the literal require-
ments of Rule 42(b) are met. He already had waived his Fifth
Amendment right against self-incrimination by choosing to
testify. Once he took that step, he could not validly refuse to
answer questions relevant to his testimony, including the
prosecutor’s question about the name of the person he
10 No. 23-1303
claimed had the gun that day in December 2019. See Kansas v.
Cheever, 571 U.S. 87, 94 (2013). A witness may not self-select
which questions he will answer and which ones he will not.
See Mitchell v. United States, 526 U.S. 314, 322 (1999). The ques-
tion was relevant because Underwood had denied possession
of the gun in question and asserted that an unidentified per-
son on the scene had it instead. His own testimony regarding
the events and culpability of some other person opened the
door to the prosecutor’s question.
Even if Underwood could have invoked his Fifth
Amendment right against self-incrimination here, he
repeatedly admitted the answer he refused to give would not
incriminate himself. The answer, he explained, might
incriminate someone else instead, and he refused to be a
“snitch.” But the Fifth Amendment does not protect against
incriminating others; when properly invoked, it only shields
the witness from being forced to testify to relevant
information that might be self-incriminating. United States v.
Kuehn, 562 F.2d 427, 430 (7th Cir. 1977) (“The privilege against
self-incrimination is personal; it may not be asserted to
protect another.”); see also United States v. Bennett, 874 F.3d
236, 246 (5th Cir. 2017) (“Fifth and Sixth Amendment rights,
like Fourth Amendment rights, are personal in nature and
cannot be asserted vicariously.” (quoting United States v.
Fortna, 796 F.2d 724, 732 (5th Cir. 1986))). Cf. United States v.
Ins. Consultants of Knox, Inc., 187 F.3d 755, 759–60 (7th Cir.
1999) (holding that because the privilege against self-
incrimination is personal, it cannot be asserted on behalf of a
collective entity). Accordingly, failing to answer the
prosecutor’s question was contemptuous conduct, and a
summary disposition was appropriate.
No. 23-1303 11
Because the requirements of summary criminal contempt
are met, we review the judge’s decision to find Underwood in
contempt for abuse of discretion.
The district court judge warned Underwood multiple
times of the consequences he might face if he continued to re-
fuse to answer the question, including the possibility of crim-
inal contempt, fines, and a sentence of up to six months. In the
context of summary contempt, due process requires no more.
See Pounders v. Watson, 521 U.S. 982, 988 (1997). Given Under-
wood’s pro se status, the court could have encouraged him to
consult with standby counsel before holding him in contempt.
But here, Underwood had regularly consulted with standby
counsel throughout the trial, usually without any prompting
from the judge. There is no reason to believe he could not have
done so here as well. Consequently, the judge did not abuse
her discretion by finding him in contempt.
III. Conclusion
Underwood knowingly and voluntarily waived his right
to counsel, and the district court did not abuse its discretion
by summarily finding him in contempt for refusing to answer
the prosecutor’s question once he took the stand in his own
defense.
* * *
The judgment of the district court is
AFFIRMED.