United States v. Mendez-Sanchez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 08-30044
v. D.C. No.
ROBERTO MENDEZ-SANCHEZ, aka  CR-06-00425-MJP-
Carlos Lopez; aka Alberto; aka 003
Pecas; aka Beto, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
March 11, 2009—Seattle, Washington
Filed April 23, 2009
Before: William A. Fletcher, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Gould
4721
4724 UNITED STATES v. MENDEZ-SANCHEZ
COUNSEL
Nancy L. Talner, Seattle, Washington, for appellant Roberto
Mendez-Sanchez.
UNITED STATES v. MENDEZ-SANCHEZ 4725
Jeffrey C. Sullivan, Helen J. Brunner, and Matthew D. Diggs,
U.S. Attorney’s Office, Seattle, Washington, for appellee
United States of America.
OPINION
GOULD, Circuit Judge:
We consider the relationship between a motion to substitute
counsel and an invocation of a defendant’s Faretta rights. We
hold that while a defendant may invoke his or her self-
representation rights after a denial of a motion to substitute
counsel, the invocation must be unequivocal. A request to
represent oneself made while at the same time stating a pref-
erence for representation by a different lawyer and rearguing
the change of counsel motion is insufficient to invoke Faretta.
I
A federal grand jury returned an indictment against Defen-
dant Roberto Mendez-Sanchez (“Mendez-Sanchez”) accusing
him and several other defendants of participating in a conspir-
acy to distribute, possessing with the intent to distribute, and
distributing both methamphetamine and cocaine.1 Several of
the charged crimes carry a mandatory minimum of ten years
of imprisonment. The district court appointed William Hines
(“Hines”) to represent Mendez-Sanchez and set trial for June
4, 2007.
Before trial Hines filed a motion to withdraw as counsel at
Mendez-Sanchez’s request. At the ex parte hearing on the
motion, Hines stated that Mendez-Sanchez had accused Hines
of “threatening him” whenever Hines discussed the evidence
that would be presented at trial, and that Mendez-Sanchez did
1
An immigration charge was dismissed on the government’s motion.
4726 UNITED STATES v. MENDEZ-SANCHEZ
not believe Hines on several points of law. Judge Pechman
inquired whether Hines believed that Mendez-Sanchez had
any mental health issues, and Hines responded that he did not
believe so. Hines also detailed the plea negotiations: the gov-
ernment had offered to drop an enhancement for his leader-
ship role in exchange for a plea. This deal would make
Mendez-Sanchez eligible for a ten-year mandatory minimum
sentence. Hines advised Mendez-Sanchez that he was facing
twenty years if he went to trial because of his prior felony
drug conviction. The plea negotiations were at an impasse
because Mendez-Sanchez would not accept any offer of ten
years or more but the government would not offer a sentence
lower than ten years without Mendez’s Sanchez’s coopera-
tion.
Judge Pechman then questioned Mendez-Sanchez, who
stated that his lawyer was always threatening him with ten
years imprisonment. Judge Pechman told Mendez-Sanchez
that Hines could not dictate the terms of the plea agreement,
he could only communicate the government’s offers. Mendez-
Sanchez responded: “but the other thing is — that we’ve
never really talked about very clearly is how am I going to go
to trial? There isn’t any evidence against me. There have to
be recordings; there have to be pictures. How can it be based
on just someone’s words?” Judge Pechman explained: “There
is no requirement that one have pictures or recordings” to be
convicted of these crimes. Mendez-Sanchez finally stated that
he would like another lawyer because he was looking for less
than ten years, but if he could not receive a better offer,
maybe he would “sign off on it.” The court granted his
request for new counsel, and set a new trial date in November.
After the hearing, Judge Pechman appointed Michael Kolker
(“Kolker”) to represent Mendez-Sanchez.
On August 16, 2007, the district court granted Kolker’s
request for a second attorney, appointed Michael Schwartz
(“Schwartz”) to represent Mendez-Sanchez with Kolker, and
moved the trial date to January 7, 2008.
UNITED STATES v. MENDEZ-SANCHEZ 4727
Mendez-Sanchez moved to substitute counsel again on
December 21, 2007. Assistant United States Attorney Doug
Whalley (“Whalley”) opposed the motion on behalf of the
government. Whalley stated that there would be no further
plea offers; that eight co-conspirators had pled in this case and
were awaiting sentencing, some of whom would likely be
released with time served; and that one DEA agent was travel-
ing from Central Asia to testify. Finally, Whalley detailed the
volume of evidence that he would present: about sixty tran-
scripts of recorded telephone conversations, several co-
defendants’ testimony, and evidence of undercover drug pur-
chases from Mendez-Sanchez. Any new counsel would
require a continuance to prepare for trial, which would cause
witnesses to languish in jail and fail to accommodate the DEA
agent traveling from Central Asia.
After this discussion, the district court cleared the court-
room and asked Mendez-Sanchez’s attorneys, Schwartz and
Kolker, about the attorney-client relationship. Kolker said that
he had visited Mendez-Sanchez many times, but whenever he
tried to go over evidence, Mendez-Sanchez would leave the
room. Mendez-Sanchez, according to Kolker, was convinced
that the date on the search warrant demonstrated that it was
a forgery and insisted Kolker call the magistrate as a witness
to testify to the forgery. Kolker said that he had requested a
second lawyer on the case because of his difficulties commu-
nicating with Mendez-Sanchez. He further stated that
Mendez-Sanchez continued to insist that the videotaped depo-
sitions would not be admissible at trial, despite Kolker’s
advice to the contrary. Kolker’s statements prompted Judge
Pechman to ask whether Kolker was concerned about
Mendez-Sanchez’s competency. Kolker responded: “No. He
understands who I am and he understands what my job is. I
think he just doesn’t want to hear what I’m telling him. And
he just doesn’t want to talk about it, basically.”
The district court next asked Kolker’s co-counsel,
Schwartz, about his impressions of Mendez-Sanchez and their
4728 UNITED STATES v. MENDEZ-SANCHEZ
relationship. Schwartz said that there were times when
Mendez-Sanchez had listened closely and had responded to
what he was saying, but there were other times when he had
simply changed the subject, especially when he did not like
what Schwartz was saying. Schwartz also asserted that
Mendez-Sanchez had understood the complex concepts of a
jury, his constitutional right to have a jury decide all counts,
and the government’s burden of proof. Schwartz explained
that, following a discussion of these concepts, Mendez-
Sanchez had waived his right to a jury on the immigration
count. Kolker noted that “[t]he difficulty became when we
were discussing things that I think are much more difficult for
him not to grasp or understand, but probably to sort of admit
to himself.” He concluded by saying that he did not believe
the problems with Mendez-Sanchez could be resolved by
assigning new counsel, that Mendez-Sanchez insisted on a
trial, and that Schwartz had no reservations about defending
him.
The district court next questioned Mendez-Sanchez, who
began by telling the court that he did not trust his attorneys,
that they were “in cahoots” with the prosecutor, and that he
did not want them in the hearing. When Judge Pechman asked
why Mendez-Sanchez believed his attorneys were colluding
with the prosecutor, Mendez-Sanchez explained that he knew
that the police did not have a warrant and his attorneys
claimed that they did. Mendez-Sanchez stated that when he
asked the police if they had a warrant at the time they arrested
him, they responded for him to “shut up.” From this response
he concluded that there was no warrant. He also detailed that
the warrant his lawyers showed him had a different date origi-
nally and that the date had been changed. Judge Pechman
asked Mendez-Sanchez if he knew what the government’s
final offer had been, and he responded “ten years.”
Mendez-Sanchez then commenced his ambiguous Faretta
demand: “Well, I don’t want any lawyer anymore. What —
I told them I want the paper to sign and that tell me how long
UNITED STATES v. MENDEZ-SANCHEZ 4729
I’m going to be in jail. But they are — they’re aware that I’m
not guilty of all the things that they are saying.” Judge Pech-
man asked if he was stating he wanted to sign a plea agree-
ment, and Mendez-Sanchez responded: “Yeah, yeah. What’s
the point of getting another lawyer?” But then, in response to
the same question asked again, Mendez-Sanchez answered:
“No, no, I rather go to trial. That’s my right. But not with
[these] lawyers.” The court asked what Mendez-Sanchez
thought another lawyer could do for him, and he responded
that he knew his current lawyers would not do anything, and
then he began discussing the warrant and its apparent discrep-
ancy in dates.
The district court asked Mendez-Sanchez’s counsel to
explain what issue Mendez-Sanchez had with the warrant.
According to Kolker, it was a warrant that Magistrate Judge
James Donohue had signed on November 29, 2006. Judge
Donohue had begun to write “November” in the space for the
date by which the warrant would have to be served, he then
crossed that out, initialed it, and wrote the warrant must be
executed by December 9, 2006. Kolker stated that Mendez-
Sanchez thought this warrant was improper and that there was
another secret warrant that Kolker was not showing him.
Judge Pechman reviewed the warrant in question and
explained to Mendez-Sanchez that, from the face of the war-
rant, and because she knew Magistrate Judge Donohue’s sig-
nature, she could tell that the warrant was not a forgery. She
stated that it seemed as if the magistrate judge had just acci-
dentally begun to write November but he had initialed his
mistake and therefore the warrant was, on its face, valid. The
court next informed Mendez-Sanchez that his lawyers were
obligated to explain what was likely to happen at trial and to
help him make decisions based on that information.
Mendez-Sanchez responded “But I don’t want these law-
yers. I’m not going to risk my life with these lawyers.” The
court asked if he was asking to represent himself, and he
replied that self-representation would be better and that he did
4730 UNITED STATES v. MENDEZ-SANCHEZ
not trust these lawyers. The court deferred the full Faretta
colloquy until the prosecutor had come back into the room.
Once the prosecutor was present, the court denied Mendez-
Sanchez’s motion to substitute counsel. The court explained
that it had appointed for Mendez-Sanchez both Kolker and
Schwartz after his initial problems with Hines, even though
“it was [her] clear belief at the time that Mr. Mendez-Sanchez
did not like the message that was being delivered by the gov-
ernment and was in fact assuming some other counsel would
change that message.” The court also stated that there were
several defendants who could not be sentenced until after
Mendez-Sanchez’s trial was completed; that a witness was
flying in from Asia; that the relationship problems between
Mendez-Sanchez and his counsel were not personal problems
but stemmed from Mendez-Sanchez’s refusal to face his cur-
rent situation; and that his counsel felt prepared for trial.
The district court next conducted a full Faretta colloquy.
During the colloquy, Mendez-Sanchez responded in a coher-
ent manner, demonstrated familiarity with the charges against
him, and acknowledged that Judge Pechman did not think it
was a good idea for him to represent himself. In response to
Judge Pechman’s ultimate question, “Is it still your desire to
represent yourself?” Mendez-Sanchez equivocated: “Well, not
with this lawyer, no. If you assign me a different lawyer, yes,
I will go with the lawyer.” Mendez-Sanchez then said “I
understand that [a] lawyer knows more than I do. But this
lawyer that are present here, they have done nothing for me
ever, and from the beginning I knew that.” Judge Pechman
tried to clarify, asking “[s]o let me understand. You would
prefer to have a lawyer, you do not want to represent your-
self?” Mendez-Sanchez replied “I think [it] would be better if
a lawyer will help me. But I hope that it would be a good law-
yer, not like these guys.”
Based on these responses, the district court found that
Mendez-Sanchez had not unequivocally invoked his Faretta
UNITED STATES v. MENDEZ-SANCHEZ 4731
rights, and therefore, Kolker and Schwartz continued to repre-
sent him.
The jury found Mendez-Sanchez guilty on all counts. The
court sentenced him to 240 months, the mandatory minimum.
He filed a timely notice of appeal.
On appeal, Mendez-Sanchez argues that Judge Pechman
abused her discretion when she denied Mendez-Sanchez’s
motion to substitute counsel, that Judge Pechman should have
offered Mendez-Sanchez a stand-by attorney during the
Faretta colloquy, and that Judge Pechman plainly erred by
not ordering, sua sponte, Mendez-Sanchez to undergo a com-
petency evaluation.
II
We review the denial of a motion for substitution of coun-
sel for abuse of discretion. United States v. Prime, 431 F.3d
1147, 1154 (9th Cir. 2005). Under our established rule, we
consider: (1) the timeliness of the motion; (2) the adequacy of
the district court’s inquiry; and (3) whether the asserted con-
flict was so great as to result in a complete breakdown in
communication and a consequent inability to present a
defense. Id.[1] Applying this rule, the first salient fact is that Mendez-
Sanchez’s motion to substitute Kolker and Schwartz was not
timely. Mendez-Sanchez made the motion little more than
two weeks before trial—a trial that had been continued twice
and involved significant discovery. A new counsel, if permit-
ted, would have required additional time to prepare for trial.
While timeliness is not dispositive, and sometimes a defen-
dant would be unable to make a motion until shortly before
trial—such as in a case where a defendant realized his or her
counsel was not prepared—that was not the case here. See id.Mendez-Sanchez filed this motion on the same day as his plea
deadline. This timing supports the district court’s finding that
4732 UNITED STATES v. MENDEZ-SANCHEZ
this motion stemmed from Mendez-Sanchez’s unhappiness
with his plea offer, and not because of a legitimate or new
breakdown in communication.
[2] The second prong in our analysis is our conclusion that
the district court’s inquiry was adequate. The inquiry must be
“adequate to create a sufficient basis for reaching an informed
decision.” United States v. Musa, 220 F.3d 1096, 1102 (9th
Cir. 2000) (quotation omitted). Judge Pechman extensively
questioned Mendez-Sanchez and his attorneys. The court was
able to surmise from Mendez-Sanchez’s statements that
Mendez-Sanchez refused to accept the consequences of his
crimes. Moreover, while some of the court’s questions were
open-ended, many questions were targeted toward under-
standing the crux of the disagreement between Mendez-
Sanchez and his attorneys. See United States v. Franklin, 321
F.3d 1231, 1238 (9th Cir. 2003) (holding that open-ended
questions were not inadequate where the questions allowed
defendant and counsel to sufficiently detail the reasons for the
request to substitute counsel). The court was therefore able to
make an informed decision regarding the motion and the
inquiry cannot be faulted. See United States v. Mitchell, 502
F.3d 931, 983 (9th Cir. 2007).
[3] Mendez-Sanchez centers his argument on the third fac-
tor to be assessed under our rule— i.e., the extent of the con-
flict between Mendez-Sanchez and his attorneys. To meet this
prong, a defendant must show that there was an “extensive,
irreconcilable conflict” between himself and his appointed
counsel. United States v. Smith, 282 F.3d 758, 763 (9th Cir.
2002). This conflict must have led to “a significant break-
down in communication that substantially interfered with the
attorney-client relationship.” United States v. Adelzo-
Gonzalez, 268 F.3d 772, 779 (9th Cir. 2001).
Doubtless here there was some level of conflict. Kolker
stated that Mendez-Sanchez would leave the room or change
the subject when his lawyers were speaking about something
UNITED STATES v. MENDEZ-SANCHEZ 4733
Mendez-Sanchez did not want to discuss. Mendez-Sanchez
asserted that he would prefer to represent himself instead of
Kolker and Schwartz and continued to say so throughout the
Faretta colloquy.
Mendez-Sanchez relies on Adelzo-Gonzalez. In Aldelzo-
Gonzalez, the defendant moved to substitute counsel because
of a conflict between himself and his attorney. 268 F.3d at
774. For example, Adelzo-Gonzalez’s counsel had used bad
language, had threatened to “sink [Adelzo-Gonzalez] for 105
years” if he refused to accept a plea, had tried to prevent him
from filing motions, and even accused him of being a liar. Id.
at 774-75. Adelzo-Gonzalez also said that he would prefer to
represent himself rather than continue with current counsel.
Id. at 778. We reversed the district court’s denial of Adelzo-
Gonzalez’s motion to substitute counsel because we deter-
mined that the breakdown in the attorney-client relationship
was severe. Id. at 779.
[4] While there are some facial similarities between Adelzo-
Gonzalez and this case, there are important distinctions.
Mendez-Sanchez had already requested and received new
counsel. He and his former counsel had experienced the same
conflict over the plea negotiations and the validity of the war-
rant. When Mendez-Sanchez stated that he did not trust his
attorneys, the court properly inquired into why and told him,
though he still did not believe it, that the attorneys were cor-
rect: the warrant was not a forgery, his attorneys could only
relay to him the deals that the government offered, and there
is no requirement that video evidence be introduced in a trial.
Kolker and Schwartz demonstrated no animosity toward
Mendez-Sanchez, unlike the attorney had in Adelzo-Gonzalez.
When Mendez-Sanchez and his attorneys discussed issues
that did not involve the evidence against him, such as waiving
a jury on the immigration count, Mendez-Sanchez was able to
have a productive conversation with them. The relationship
between Mendez-Sanchez and his attorneys does not exhibit
4734 UNITED STATES v. MENDEZ-SANCHEZ
the same sort of “striking signs of serious conflict” that
occurred in Adelzo-Gonzalez. See id. at 778.
[5] In United States v. Smith, we affirmed a district court’s
denial of a motion to substitute counsel and held that the con-
flict between Smith and his attorney arose out of “general
unreasonableness or manufactured discontent.” 282 F.3d 758,
764 (9th Cir. 2002). Smith quarreled with his attorney about
the wording of a discovery motion, and when Smith’s attor-
ney would not use his wording, Smith unilaterally cut off con-
tact, stating that he did not want to “meet and discuss
something and have nothing be done about it again.” Id. at
763. Smith, like Mendez-Sanchez, had already received one
substitute counsel. Id. at 762. While having already been
granted a motion to substitute counsel once does not preclude
Mendez-Sanchez receiving another lawyer, the fact that this
was the same breakdown in communications that had
occurred with his previous lawyer is significant. The nature of
the conflict demonstrates that it may have been based on
Mendez-Sanchez’s general unreasonableness. It is unclear
what could have been done differently: Mendez-Sanchez had
three lawyers tell him what he did not want to hear, he had
not listened to any of them, and the judge herself had told him
the same thing. If Mendez-Sanchez had received other coun-
sel, it is likely that the same conflicts would have arisen.
Finally, whatever conflict Mendez-Sanchez had with his
counsel was not extensive or irreconcilable. See id. at 763.
Mendez-Sanchez was able to communicate with his attorneys,
they bore him no ill-will, and he stated that they were never
rude to him. There must be limits on the ability of a defendant
to gain new counsel when the defendant is acting unreason-
ably and especially where appointing new counsel would
require a continuance with a consequent disruption to the
court process. Here, we conclude that the district court did not
abuse its discretion in denying the motion for new counsel.
UNITED STATES v. MENDEZ-SANCHEZ 4735
III
Mendez-Sanchez also challenges aspects of the district
court’s Faretta colloquy, and specifically contends that he
should have been told that he could have standby counsel.
[6] In determining whether a defendant has made a know-
ing and intelligent waiver of counsel, the record must show
that the defendant has been made aware of the nature of the
charges against him, the possible penalties, and the risks of
self-representation. United States v. Hernandez, 203 F.3d 614,
624 (9th Cir. 2000), abrogated in part by Indiana v. Edwards,
128 S.Ct. 2379 (2008), as recognized in United States v. Fer-
guson, No. 07-50096, 2009 WL 792485 (9th Cir. Mar. 27,
2009). Whether a defendant knowingly and voluntarily
waives his Sixth Amendment right to counsel is a mixed ques-
tion of law and fact reviewed de novo. United States v. Marks,
530 F.3d 799, 816 (9th Cir. 2008). A district court’s finding
that a defendant’s waiver is equivocal is a finding of fact
reviewed for clear error. Id.[7] Faretta v. California, 422 U.S. 908 (1975) presented
the Supreme Court with a question of dueling rights of major
consequence in our criminal justice system. In a series of
hard-fought decisions, the Supreme Court had recognized that
“the help of a lawyer is essential to assure the defendant a fair
trial.” Faretta, 422 U.S. at 832-33 (citing Arserginger v.
Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S.
335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938); Powell
v. Alabama, 287 U.S. 45 (1932)). Any right to proceed with-
out an attorney stood in juxtaposition. The Court acknowl-
edged the “strong argument . . . that the whole thrust of [the
right to counsel] decisions must inevitably lead to the conclu-
sion that a State may constitutionally impose a lawyer upon
even an unwilling defendant.” Faretta, 422 U.S. at 834. Yet,
the Court concluded that based upon the text, structure, and
history of the Sixth Amendment, an independent and individ-
ual right to self-representation existed. Id. at 818-32. Conse-
4736 UNITED STATES v. MENDEZ-SANCHEZ
quently, the Supreme Court recognized and respected the
accused’s choice to proceed without an attorney, even though
this may lead to his or her own detriment. Id.; see also id. at
834 (“It is undeniable that in most criminal prosecutions
defendants could better defend with counsel’s guidance than
by their own unskilled efforts . . . . [However,] although he
may conduct his own defense ultimately to his own detriment,
his choice must be honored out of ‘that respect for the indi-
vidual which is the lifeblood of the law.’ ”) (quoting Illinois
v. Allen, 397 U.S. 337, 350-51 (1970)).
Because the rationale of Faretta permitted self-
representation, even if it was likely to have been harmful,
when there was a knowing and intelligent waiver, we recog-
nize this constitutional right only where demanded after
advice on the hazards of self-representation. See id. at 835
(requiring a knowing and intelligent waiver of the right to
counsel before allowing self-representation). The Supreme
Court held that a defendant must be told of the dangers of
self-representation to permit an intelligent waiver of the right
to counsel. Id. Otherwise, in the absence of candid advice
from the trial court on the dangers and practical risks of a self-
representation, we would have no confidence that a knowing
and intelligent waiver had been made.
[8] While “the Constitution does not force a lawyer upon
a defendant,” Faretta, 422 U.S. at 814-15 (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279 (1942)), it
requires that a defendant who wishes to waive his or her right
to counsel do so unequivocally. See Adams v. Carroll, 875
F.2d 1441, 1444 (9th Cir. 1989). This principle of our circuit
law has often been followed. See, e.g., Sandoval v. Calderon,
241 F.3d 765, 774 (9th Cir. 2000); Hernandez, 203 F.3d at
621.
The requirement that a self-representation demand be
unequivocal follows from the nature of the dueling rights at
stake in Faretta and the need to make a sensible accommoda-
UNITED STATES v. MENDEZ-SANCHEZ 4737
tion of the individual and societal interests raised. Faret-
ta itself makes clear the view that self-representation in most
cases will have negative consequences. 422 U.S. at 834. But
despite the potential ill-consequence of self-representation,
we permit it because of our society’s respect for individual
dignity, once the individual has been fairly advised of conse-
quences and has made a knowing and intelligent decision.
Because the exercise of self-representation cuts off the exer-
cise of the right to counsel, often to individual detriment, we
recognize the right only when it is asserted without equivoca-
tion.2 However, “[i]f [the defendant] equivocates, he is pre-
sumed to have requested the assistance of counsel.” Adams,
875 F.2d at 1444.
After being advised of the hazards of self-representation in
the Faretta colloquy, the criminal defendant must make a
choice with eyes open. We will recognize a choice for the
self-representation right when made knowingly and intelli-
gently and when expressed without equivocation.
[9] A conditional waiver can be stated unequivocally, as for
example when a defendant says in substance: “If I do not get
new counsel, I want to represent myself.” There is a condi-
tion, but the demand is unequivocal. In Adams, we held that
a defendant who invoked his Faretta rights after the court
denied his motion to substitute counsel, later asked for coun-
sel after proceeding pro se, was then re-appointed his previous
attorney, and then re-asserted his right to self-representation
2
We have previously noted that the requirement that a defendant invoke
his or her right to self-representation without equivocation serves two pur-
poses. “First, it acts as a backstop for the defendant’s right to counsel, by
ensuring that the defendant does not inadvertently waive that right through
occasional musings on the benefits of self-representation.” Adams, 875
F.2d at 1444. Second, “[i]t prevents a defendant from taking advantage of
the mutual exclusivity of the rights to counsel and self-representation.” Id.We avoid placing the district court in the impossible position of effectuat-
ing both rights at once by “forcing the defendant to make an explicit
choice.” Id.4738 UNITED STATES v. MENDEZ-SANCHEZ
had made an unequivocal waiver. Adams, 875 F.2d at 1445.
We stated that “[w]hile his requests no doubt were condi-
tional, they were not equivocal.” Id.; see also Hernandez, 203
F.3d at 621-22 (determining the following request was
unequivocal: “if you can’t change [my attorney], I’d like to
represent myself, with an interpreter”). The key fact in Adams
was his re-invocation of his Faretta rights after learning that
he would not receive a different lawyer. See id. We have held
in other contexts that a conditional waiver was equivocal, as
for example where a defendant says: “If the court will appoint
standby counsel, I would like to represent myself.” For
instance, in Salemo and Kienenberger, we upheld two defen-
dants’ convictions after each one asserted his right of self-
representation while also asking for standby counsel. United
States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996); United
States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994).
“ ‘Standby’ counsel refers to the situation where a pro se
defendant is given the assistance of advisory counsel who
may take over the defense if for some reason the defendant
becomes unable to continue.” Locks v. Sumner, 703 F.2d 403,
407 n.3 (9th Cir. 1983). In Kienenberger, we determined that
because Kienenberger asked to represent himself with standby
counsel, he never knowingly and voluntarily relinquished his
right to be represented by counsel. Kienenberger, 13 F.3d at
1356. Salemo also did not waive his right to counsel and
assert his right of self-representation when he asked for
standby counsel and that standby counsel be compensated.
Salemo, 81 F.3d at 1460.
[10] Within this framework we examine Mendez-Sanchez’s
Faretta invocation and colloquy. During the hearing on the
motion to substitute counsel, Mendez-Sanchez stated that he
wished to go to trial, “but not with [these] lawyers,” and then
several minutes later he stated “I don’t want these lawyers,
I’m not going to risk my life with [these] lawyers.” This time
Judge Pechman asked if Mendez-Sanchez wished to represent
himself, and Mendez-Sanchez stated that “that would be bet-
ter.” However, several minutes into the subsequent colloquy,
UNITED STATES v. MENDEZ-SANCHEZ 4739
Mendez-Sanchez acknowledged that “I think [it] would be
better if a lawyer will help me. But I hope that it would be a
good lawyer, not like these guys.” This statement, made after
Judge Pechman had denied substitute counsel, does not
unequivocally demand self-representation and is insufficient
to invoke the right of self-representation permitted by Far-
retta. See Jackson v. Ylst, 921 F.2d 882, 889 (9th Cir. 1990).
The district court did not clearly err when it found that
Mendez-Sanchez’s waiver was equivocal.
IV
[11] Mendez-Sanchez also argues that Judge Pechman
should have offered to appoint him standby counsel during
the Faretta colloquy. We can see why Mendez-Sanchez might
prefer a standby counsel if he represented himself, but under
our established precedent there is no right to the assistance of
standby counsel. Locks, 703 F.2d at 407-08; see also McK-
askle v. Wiggins, 465 U.S. 168, 183 (1984) (“Faretta does not
require a trial judge to permit ‘hybrid’ representation . . . .”).
Moreover, we have held that a defendant who wishes to repre-
sent himself or herself and also asks that he or she be afforded
standby counsel has not unequivocally asserted his or her
right to self-representation and waived his or her right to
counsel. See Kienenberger, 13 F.3d at 1356. The purpose of
the Faretta colloquy is to inform the defendant of his or her
rights and determine whether, the defendant still wishes to
represent himself or herself with eyes open. Faretta, 422 U.S.
at 835. To require that a court conducting a Faretta colloquy
inform a criminal defendant that he or she may or may not
receive a standby counsel would do nothing to focus the
inquiry for the defendants knowing and intelligent decision.
Because there is no right to have a standby counsel appointed
during self-representation, it follows that there is no right to
have the court advise about the possibilities of standby coun-
sel during the Faretta colloquy.
We hold that the district court’s Faretta inquiry was suffi-
cient and that the district court did not clearly err in finding
4740 UNITED STATES v. MENDEZ-SANCHEZ
that Mendez-Sanchez had not unequivocally waived his right
to counsel.
V
We next address Mendez-Sanchez’s argument that the dis-
trict court erred by not ordering sua sponte a competency
evaluation. Because the issue of Mendez-Sanchez’s compe-
tency is raised for the first time on appeal, we review the dis-
trict court’s decision for plain error. Marks, 530 F.3d at 814.
“Plain error is (1) error, (2) that is plain, and (3) affects sub-
stantial rights.” United States v. Waknine, 543 F.3d 546, 550
(9th Cir. 2008) (internal quotation marks omitted). “If these
three conditions are met, we may then exercise our discretion
to grant relief if the error seriously affects the fairness, integ-
rity, or public reputation of judicial proceedings.” Id. (internal
quotation marks omitted).
[12] “ ‘Due process requires a trial court to hold a compe-
tency hearing sua sponte whenever the evidence before it
raises a reasonable doubt whether a defendant is mentally
competent.’ ” United States v. Mitchell, 502 F.3d 931, 986
(9th Cir. 2007) (quoting Miles v. Stainer, 108 F.3d 1109, 1112
(9th Cir. 1997)). In determining competence to stand trial, we
ask whether the defendant has sufficient ability to consult
with his lawyer with a reasonable degree of rational under-
standing and both a rational and a factual understanding of the
proceedings against him. See Marks, 530 F.3d at 550. A court
considers the defendant’s irrational behavior, his demeanor in
court, and any prior medical opinions. Drope v. Missouri, 420
U.S. 162, 180 (1975). An appellate court reviewing the failure
to order a competency evaluation looks “to see if the evidence
of incompetence was such that a reasonable judge would be
expected to experience a genuine doubt respecting the defen-
dant’s competence.” Mitchell, 502 F.3d at 986 (quotation
omitted). There must be “substantial evidence of incompe-
tence” to hold the district court plainly erred by not initiating
a competency evaluation. Id.UNITED STATES v. MENDEZ-SANCHEZ 4741
[13] Judge Pechman asked Mendez-Sanchez’s attorneys
whether his behavior could possibly be linked to incompe-
tence on more than one occasion. Each time, however,
Mendez-Sanchez’s attorneys said no, that they believed
Mendez-Sanchez could assist them. Nothing in these inquiries
or in the responses of counsel would have prompted the dis-
trict court sua sponte to convene a hearing on Mendez-
Sanchez’s competence to stand trial. Moreover, Schwartz’s
discussion of Mendez-Sanchez’s ability to understand the
arguments in favor of waiving a jury on the immigration
count, and his decision to waive that charge being decided by
the jury shows that he understood the nature of the legal pro-
ceedings. Further, Mendez-Sanchez stated that he knew that
the government had offered him ten years imprisonment in
exchange for a guilty plea, and he demonstrated an under-
standing of the nature of the proceedings against him during
the trial court’s Farretta colloquy. We cannot say, on this
record, that Judge Pechman plainly erred by not ordering
Mendez-Sanchez to undergo a competency evaluation.
[14] Finally, Mendez-Sanchez argues that while he may
have been competent to go to trial, he was not competent to
reject a plea offer. Under our precedent, there is no difference
between the level of competence needed to plead guilty and
that to stand trial. See Godinez v. Moran, 509 U.S. 389, 399
(1993) (“If the Dusky standard is adequate for defendants who
plead not guilty, it is necessarily adequate for those who plead
guilty.”). Mendez-Sanchez relies upon Indiana v. Edwards,
128 S. Ct. 2379, 2384 (2008), in which the Supreme Court
established higher levels of competency necessary for self-
representation than are necessary to stand trial. However,
Edwards does not address competency to reject a plea offer
and it does not overrule or undermine the Supreme Court’s
prior precedent of Godinez, which forecloses Mendez-
Sanchez’s argument that he was not competent to reject the
plea offer.
4742 UNITED STATES v. MENDEZ-SANCHEZ
VI
For the foregoing reasons, we hold the district court did not
abuse its discretion by denying Mendez-Sanchez’s motion to
substitute counsel. We further hold that his waiver of counsel
under Faretta and his demand for self-representation were not
unequivocal and therefore he did not properly invoke his right
to self representation. Further, we hold that the district court
was not required to advise Mendez-Sanchez that standby
counsel may be made available to him if he represented him-
self. Finally, we hold that the district court did not err by not
initiating sua sponte a competency evaluation with regard to
Mendez-Sanchez’s competency to stand trial or to refuse to
enter a plea agreement.
AFFIRMED.