United States v. Clinton Bernard Frazier-El

judgment gether, to AEDPA’s effective date. The as implications well as to the court the district is therefore opinion Hughes Court’s Aircraft Attorney General’s decision in In re Sori- AFFIRMED. And, again only ano. insofar as I am LUTTIG, concerned, Circuit it Judge, concurring: should also address itself fully more than it did in its brief before I concur in the judgment very this court to the specific question of join opinion. and I in the I so court’s do whether the legal consequences of Tasios’ question of whether the district guilty plea were altered by the enactment we) (and jurisdiction, have I because 440(d). of section am opinion bound in Bow court’s rin Immigration v. United States & Natu (4th Service,

ralization 194 F.3d 483 Cir.

1999). join opinion I the court’s with re

spect to the retroactive effect of the enact 440(d) largely,

ment of AEDPA’s section

though exclusively, the Su

preme Hughes Court’s decision in Aircraft Schumer, Co. v. States rel. United ex America, UNITED STATES of L.Ed.2d Plaintiff-Appellee,

(1997), after which decided both this opinion court’s De Osorio v. United Immigration States & Ser Naturalization FRAZIER-EL, Clinton

vice, (4th Bernard Cir.1993), Defendant-Appellant. Attorney opinion in In General’s re Sori ano, (Feb. 21, 1997). 1996WL 426888 No. 98-4462. I that realize dis- United States United Court of Appeals, States agrees with this decision in Bow- court’s Fourth Circuit. rin, today’s and with decision the extent Bounin, that it I presume follows Argued Sept. rehearing United States will en seek today’s judgment jurisdiction banc of Decided March lay adjudicate in the district court to Tas- that, I presume

ios’ claims. if the rehearing

States seek en our does banc of

jurisdictional decision, it will seek likewise

rehearing judgment en banc of our on the 440(d)

merits that section is impermissibly applied petitioner

retroactive as Tasios. so, should, it

Should do insofar I am

concerned, more fully address itself than it

did in its brief before this court to those

portions the Supreme Court’s unani- opinion

mous in Hughes in which Aircraft explained the Court that our attention

must petition- be directed not conduct, primary

er’s any but also to rele- conduct,

vant secondary and distinguished

between merely statutes that address jurisdiction

which shall forum jurisdiction

statutes withdraw alto- Barrett,

ARGUED: Denise Charlotte Defender, Assistant Federal Public Balti- more, Maryland, Appellant. Tarra R. DeShields-Minnis, Assistant United States Attorney, Office of United States At- Baltimore, torney, Maryland, Appellee. Wyda, ON BRIEF: James Federal Public Defender, Jeffrey Risberg, E. Assistant Defender, Baltimore, Federal Public Ma- ryland, Lynne for Appellant. Battaglia, A. Attorney, States Office of the Unit- Baltimore, ed Attorney, Maryland, States Appellee. Before MURNAGHAN NIEMEYER, Judges, Circuit MAGILL, Judge Senior Circuit Appeals United States Court of Circuit, Eighth by designation. sitting opinion. Affirmed by published Judge opinion, NIEMEYER wrote the which motion, hearing joined. Judge April At the Judge MAGILL Senior court, prefer “I would told the dissenting wrote MURNAGHAN me at this Ms. Watts opinion. the dismissal of requesting I am time and my par- on these Risberg attorney as Mr. OPINION grounds and issues.” ticular NIEMEYER, Judge: Circuit he wanted to file dismissal explained that pos- convicted of Clinton Frazier-El was the fact that he “was motions based on felon, in by a violation session of a firearm under the a consecrated sheik ordained § to 188 922(g), and sentenced of 18 U.S.C. considered Risberg a fact that prophet,” an armed career imprisonment months stated, “I do Frazier-El also “irrelevant.” 924(e). § 18 U.S.C. On criminal under public a represented want to be not court he that the district appeal, contends that the defense defender who thinks (1) him to allow to dis- refusing erred in mental plead insanity I that have is attorney pro- court-appointed miss his court re- The district incompetency.” (2) se; jury on the instructing ceed your “I denied sponded, have motion § 922(g); requirement mens rea At Risberg Mr. with Ms. Watts.” replace career crimi- him as an armed sentencing that Ris- point that Frazier-El announced follow, that we af- nal. For the reasons represents speaks me or berg longer “no firm. Ris- The district court directed for me.” attorney as Frazier-El’s berg to remain I of this proceeding purpose “in this today.” hearing a 20- purchased Clinton Frazier-El depart- a Wal-Mart gauge shotgun from Blumberg, court-ap- Dr. Neil a After Catonsville, Maryland, ment store April testified at the pointed psychiatrist, 1996, indicating required on the November hearing that Frazier-El “was form that he had nev- firearms transaction that to stand trial” at time be- competent punishable a crime er been convicted of “schizophre- from suffering cause he was exceeding term one imprisonment for a type along with cocaine paranoid nia year. a routine examination When abuse,” abuse, history of Fra- prior cocaine records revealed Wal-Mart firearms sales zier-El stated: of a that Frazier-El had been convicted Risberg pro- Mr. this I dismissed before a term of five battery and sentenced to Dr. bringing started in terms of ceeding obtained a years, law enforcement officers have Blumberg to the witness stand and They arrest. ex- warrant for Frazier-El’s I at questions.... particu- him ask apart- at Frazier-El’s ecuted the warrant represent myself lar and I would point ment 1996. At the time of on December Blumberg Dr. like to cross-examine arrest, holding Frazier-El was myself in this representing I am since shotgun purchased that he had at Wal- hearing. told Mart a month earlier. He law en- “papers forcement officers that he had court, Frazier-El’s refusing grant The that, gun” while he knew he was explained the nature of hear- request, handgun, he prohibited possessing from a ing and then committed Frazier-El prohibited pos- did from not know was Attorney hospi- custody General gun.” sessing “long treatment, talization, evalua- and further that the the court indicated Following Frazier-El’s arrest and tion. When interest, in Frazier-El’s Risberg, a federal decision was best appointment Jeffrey “I case defender, think this public Risberg responded, as his an- properly more handled with psychiatric filed a evaluation could be motion for trial. defender.” competence public to stand other later, Eight position months after Frazier-El’s The Court: your any Is it that competency attorney hear- hospitalization, you a second would ask for —that during ing was conducted which the court attorney every new instance was competent attorney concluded where the would refuse to motions; adopted trial. The the con- file the your posi- to stand tion? “Camp clusions Butner Evaluation Team,” which evaluated and treated Frazi- H* H< H* # H* H* The report er-El. concluded that Frazi- position The Court: Your is that understanding er-El “has an of the adver- jurisdiction Court has no you, over sarial nature of criminal law and verbalizes right? is that That this court has understanding an accurate pro- criminal jurisdiction you; no over is that cess, procedural protection rights, your position? the roles personnel.” of courtroom Well, Frazier-El: yes, sir. indicated, however, report The that Frazi- words, Court: other if you persisted in er-El his view the United should represent yourself, you government authority States does that; argue would want to is that him over because “he is Moorish nation- correct? report explained: al.” Frazier-El: That would be one of the system do not We view his belief to be issues. nature, it loosely delusional as The Court: Just a minute. If I under- on based the doctrine the Moorish it, stand I have been advised this America, Temple recognized Science morning that in the event the Court organization in the States. Mr. United does not Mr. Risberg excuse appeared exaggerat- Frazier-El to have counsel, appoint you new want to ed, to, added the doctrine distorted represent yourself; am I correct? benefit to himself. attribute that We Yes, Frazier-El: to sir. personality behavior disorder and not to a severe mental illness. you Court: And would argue that jurisdiction, this Court no has During this Frazier-El hearing, spoke at yourself; representing is that cor- about the length fact that members of the rect? Temple subject Moorish Science were not Frazier-El: That would be one of the States courts and that the issues, yes, Judge, would. were “being Moors incarcerated and treat- ed as slaves as federal contraband proper- ^{[*] [*]} Hi H? ^{[*] [*]} ty.” complained that his at- The Court: If I do not dismiss Mr. torney Risberg worked the federal Risberg, you represent did want to government and in my had “never worked yourself?.... You want to repre- sought interest.” When he to have Ris- yourself? sent berg removed as the court denied Yes, Frazier-El: sir. the motion. present your The Court: to You want — At a motions hearing conducted on Jan- argument basic would be that this 20, 1998, uary day trial was scheduled jurisdiction you; Court has over no begin, again expressed is that right? with appointed dissatisfaction counsel. He Frazier-El: That is one of the basic that had complained Risberg refused to arguments. Frazier-El, arguing file motions that ‡ ‡ ‡ $ H* “an in the Moorish Science Tem- officer words, ple,” subject juris- court’s The Court: In if new other coun- colloquy The following diction. ensued: sel were appointed refused II Risberg, Mr. same as desired, you would way you principal argument appeal, As his counsel; is that another new want that the district court Frazier-El contends lawyer want a who correct? You himself him his denied position precisely will take of the Sixth Amendment. See violation morning; is you suggesting are 806, 819, California, v. U.S. Faretta you want? right? That is what (holding 45 L.Ed.2d 562 S.Ct. implicitly pro- that the Sixth Amendment Yes, If that is at Frazier-El: sir- self-represen- vides an affirmative possible. all tation). Frazier-El’s motion to The court denied Although the Amendment Sixth rep- and his substitute counsel “the As guarantees a criminal defendant so, doing resent himself. defence,” for his U.S. sistance Counsel that Frazier-El’s efforts to stated its belief Const, VI, Faretta held that it also amend. that, and, pro- failing substitute counsel right of protects implied inverse self- argue represented efforts “to ceed self-rep And the representation. permitted by matters which would generally must be honored resentation The court continued: the court.” that the even if the district court believes has no argue He would that this Court would benefit from the advice of jurisdiction and the Court has ruled counsel. See U.S. at is abso- argument that motion and that 2525; Wiggins, see also McKaskle lutely frivolous. 177 n. (1984). an exercise L.Ed.2d 122 Because in a position I think Mr. Frazier-El neces competent because of where he is not sarily right of the to coun entails a waiver represent made to arguments he has obviously enjoy cannot sel—a However, the abso- himself. Court is at trial —the exercise of the rights both un- lutely that Mr. Frazier-El convinced must be evalu right self-representation proceedings derstands the nature of the criteria by using many ated of the same able, if he desires —he is an and is so applied that are to determine whether a in de- intelligent man—to assist his own right defendant has waived the to counsel. fense, if he so desires. right self-represen An assertion trying I think Mr. Frazier-El to (1) un therefore must be clear and tation argue applicable legal in this Court Faretta, 835, 422 95 equivocal, see by taken an or- principles positions but Lorick, 2525; v. 753 S.Ct. United States very ganization position whose well (4th (2) 1295, Cir.1985); know F.2d 1298 country. known to the courts of this intelligent voluntary, and see Godinez ing, Therefore, motion, Frazier-El, Mr. 400-01, Moran, 113 v. 509 U.S. will be de- represent yourself again (1993); 2680, 125 L.Ed.2d 321 United you nied on the matters which based Singleton, v. 107 F.3d 1096 States presented. (4th Cir.1997); timely, see Lawrence, n. v. 605 F.2d 1325 States morning, Trial the next with commenced (4th Cir.1979). Risberg acting as defense counsel. On 22, 1998, January jury returned a ver- that a re- particular requirement court, guilty, having dict of and the deter- clear and quest con- prior necessary protect against mined that Frazier-El had three unequivocal is felonies,” right “violent sentenced inadvertent waiver of the victions for “an ‘occasional mus- by Frazier-El an armed career criminal counsel a defendant’s 924(e). self-representa- ings § under on the benefits of appeal This U.S.C. ” Arlt, v. 41 F.3d followed. tion.’ United States Cir.1994) (9th hand, in (quoting principles Adams Car- these we With Cir.1989)). (9th roll, 1441, 1444 875 F.2d now turn Frazier-El’s contention that against an protection This inadvertent improperly he was denied of self- especially to counsel is waiver of the representation Any this case. review of important “representation by against this contention must be considered merely ensure counsel does not tend to background overarch Frazier-El’s justice individual defen- criminal that, ing contention “officer in as an dant, process as fair and marks Temple,” Moorish Science he was not sub legitimate, sustaining public confidence ject jurisdiction to the of United States system the rule Sin- of law.” with very district court. Beginning gleton, at 1102. hearing, repeatedly first in structed his counsel to that defense assert that a requirement subpoena and to witnesses who were mem unequivo be clear the Temple. bers of His dissatisfaction taking cal also a defendant prevents from appointed mutual with his counsel resulted from advantage manipulating of and exclusivity rights to counsel and counsel’s advice to Frazier-El that his ar A vac self-representation. defendant who were guments meritless and irrelevant. illates at the trial places trial appointed And because this advice from position difficult because it “must ‘traverse counsel, alternatively sought ... a thin allow improperly line’ between representation counsel who would as ing se, to proceed pro the defendant there sert or self-representation. the defense right to im violating his properly having the defendant expression Frazier-El’s first counsel, thereby with violating his to represent his desire came at the himself Murray, self-representation.” Fields v. competency hearing, during first which he (4th banc) Cir.1995) (en F.3d repeatedly had insisted that he dismissed States, (quoting v. United F.2d Cross that he him counsel and would (11th Cir.1990)). ambiguous hearing. hearing, self at the howev This by a vacilla situations created defendant’s er, conducted for purpose the sole manipulation, tion or we must ascribe evaluating competence primacy” “constitutional expert stand trial. The court testi heard right counsel because this the serves both mony para that Frazier-El suffered from good, opposed individual and collective he schizophrenia noid and that was incom to the individual interests served trial petent to stand at that time. The protecting right self-representation. the of Supreme Court has made clear that the 1102; Singleton, 107 F.3d at id. at see also competence waiving of for coun standard 1096; Fields, 1029; F.3d 49 compe sel is identical to the of standard (4th Gillis, States v. Godinez, standing tence for trial. See Cir.1985). 396-97, Therefore, U.S. at S.Ct. 2680. bottom, right At the to Faretta permit the district court’s refusal to Frazi absolute, self-representation is not and represent er-El to himself until issue ensuring “the in government’s interest competency clearly was determined was integrity efficiency of times the trial at justified. in outweighs act the defendant’s interest competency At Frazier-El’s second ing lawyer.” as his own Court Martinez v. —Cal., again expressed he dissatisfaction U.S. -, hearing, Appeal of 684, him Risberg sought with to have re- (holding 145 L.Ed.2d Significantly, counsel. require crimi moved as Faretta does that a any nal him did not desire to represent express defendant be allowed to Frazier-El proceed se at this appeal). hearing. self direct Lawrence, A trial court F.2d at 1325. trial, Frazier-El day of Finally, on the distinguish between to permitted Risberg removed as must to have again sought particular present to manipulative effort appointed. counsel and substitute counsel dispense desire to and a sincere arguments the court elicited Through questioning, The circum of counsel. expres- Frazier-El’s with the benefits underlying motive purport surrounding coun- appointed with of dissatisfaction stances sion and the he felt as to counsel namely, the frustration waiver of his ed sel— to file without unwillingness proceed to Risberg’s assertion of his result manip on Frazier-El’s more a suggest motions based case frivolous this counsel Tem- unequivocal in the Moorish Science than an membership system ulation of the self-represen ple: to invoke his desire whole, see the record as words, Taking if coun- tation. In new The Court: other 1097, we are satis F.3d at Singleton, and refused appointed were sel justified, court was fied that the district proceed Risberg, Mr. same as vacilla with Frazier-El’s desire, want when confronted you would way you for substitute counsel; request his tion between is that cor- another new self-represen request and his will counsel lawyer want a who rect? You tation, insisting that Frazier-El you position precisely take Martinez, 120 counsel. See appointed is that with morning; suggesting are (in of an asserted at 691 the context you That is what want? right? recognizing govern right, Faretta Yes, If that is at sir.... Frazier-El: integrity “ensuring ment’s interest possible. all trial”). efficiency of the that Frazier- ascertained The court also self-represen- El’s alternative Frazier-El’s intermit denying for substitute tation —should himself, dis requests represent tent ef- manipulative counsel be denied —was that “Mr. trict court stated the defenses by Frazier-El to assert fort arguments competent ... said, “If I do not himself. Thus If this himself.” represent made to rep- Risberg, you did want dismiss Mr. in by the court was statement particular responded yourself?” resent for its refusal to explanation as an tended affirmatively, agreeing that he wanted se, as proceed pro permit Frazier-El present himself order to represent contends, an error it was Frazier-El now jurisdictional argument. Godinez, 399, 509 U.S. at of law. See (“[T]he that is re competence ex S.Ct. 2680 seeking to waive his of a defendant autonomy quired dignity affirm the ists “to waive competence right to counsel is presentation the accused and to allow competence occasionally, right, be the not the may, at least of what Faretta, himself’); 422 at 95 U.S. Wiggins, defense.” possible accused’s best (defendant’s legal 176-77, 944; technical S.Ct. 2525 104 S.Ct. 465 U.S. cf. to an assessment Martinez, knowledge “not relevant (noting that 120 S.Ct. at 689 to knowing exercise of availability compe of his with the increased himself’). But must assume we defend reasons tent the historical that Frazier-El the court’s statement have the that “do not recognizing exist, arguments force”). competent “not was The does same only refers represent himself’ delay, he made to a tactic for to be used as and the 1324-25; Lawrence, legitimacy F.2d at to see 605 advanced, than Frazi rather to Faretta, arguments n. 422 at 834 see disruption, election knowing make a ability to 2525; of the er-El’s for distortion coun and waiver of 1102; or Singleton, 107 F.3d at system, see confirmed what assumption is see sel. This process, the trial manipulation “Frazier-El under- court court said next: district instructed jury proceedings requirement the nature of the and is the mens rea stands able, § 922(g) an intelligent if he so desires—-he is as follows: defense, if assist in his own he so man—to government also prove must that desires.” Mr. knowingly. Frazier-El acted This

means possessed that he the firearm purposely voluntarily, and not Ill accident, or mistake carelessness. It also Frazier-El next contends that the dis- means that he knew that the weap- firearm, court on was a refusing give trict erred to we commonly use However, following proposed jury government instruction on the word. requirement required rea of 18 prove mens U.S.C. that Mr. Frazier- El 922(g): § knew that breaking he was the law. We believe that the district court’s instruc- government prove For the this ele- tion correctly stated mens rea re- doubt, beyond you ment a reasonable quired § for a 922(g). violation of Under must find that the knew that instruction, the district court’s while the possessed type the firearm he was of a jury would find have to that Frazier-El prohibited possessing. he was from firearm, knew that weapon was a it argues that was He this instruction neces- would not have to find that he knew the sary § 922(g) prohibit “because does not a possession aof firearm constituted a viola- possessing felon from all firearms.” tion of law. The conventional mens rea of Therefore, maintains, jury he statutes, criminal unless Congress clearly possessed find that knowingly he fire- otherwise, specifies requires not that a arm, required “it should have been find defendant know that his conduct was ille- he knew that firearm bore gal, but that he “know the facts that brought characteristics that it within the illegal.” make his Staples conduct v. Unit- i.e., 921(a)(3), § scope of the defen- States, 600, 605, ed 511 U.S. S.Ct. dant knew that the was of the type firearm (1994); L.Ed.2d see also prohibited possessing.” was from United States v. International Minerals & 558, 559, 562, Corp., Chem. 402 U.S. 922(g) any unlawful for Section makes S.Ct. 29 L.Ed.2d 178 (holding person any “who has been convicted that “knowingly violates” means knowl- of, a punishable by imprison- crime edge “specific acts or omissions exceeding year for a term one ... ment Act”). which violate the generally See commerce, possess affecting ... any or Wilson, United States v. ammunition; or or to any firearm receive (4th Cir.1997). 260-64 or which has firearm ammunition been case, shipped transported in interstate or for- may have mis- takenly § eign 922(g). shot-gun commerce.” 18 U.S.C. that his believed § “any “long gun,” “Firearm” is defined mean from weapon exempted 922(g). But (including a gun) ignorance provides starter which will or such of the law no de- designed readily may to or be converted fense to a statute’s violation. See Cheek v. States, 192, 199, expel projectile by the action of an ex- 498 U.S. 921(a)(3)(A). (1991). § plosive.” 18 U.S.C. That L.Ed.2d Section section, however, prohibits specifically 922(g) possession by excludes “an a felon firearms, antique of all except antique. firearm” from definition of this requirement Id. The rea firearm. mens case there is no assertion that Frazier-El 922(g) prescribes thought § was an shotgun antique. that the defendant act Be- “knowingly” committing requested jury in the violation. cause his instruction might 924(a)(2). § suggest jury 18 U.S.C. to the that Frazier-El had to 562 for violation of Md. Ann.Code the dis- conviction illegal, conduct was

know that his 27, 36, felony. § a violent refusing give in it. art. as did not err trict court prior To whether a con determine It reversible error to decline is felony, a sen viction constitutes a violent if the jury instruction requested a a tencing court must determine whether “(1) (2) correct; requested instruction necessary force prior offense involves substantially by covered was not a injury employing to another or risk (3) jury; to the dealt charge court’s (1) approach that relies on categorical important, point in the trial so with some (2) the definition of fact of conviction requested instruc give that failure to v. prior Taylor offense. See United seriously impaired the defendant’s tion 600, States, 575, 602, 110 S.Ct. ability to his defense.” United conduct (1990); 2143, 109 L.Ed.2d 607 (4th 991, Queen, v. 132 F.3d States Coleman, 199, 201-02 v. 158 F.3d States Cir.1997) Lewis, States v. (quoting United (4th Cir.1998) (en banc); United States (4th Cir.1995)). 29, In this 53 F.3d cf. (4th Cir.) Kirksey, case, requested if Frazier-El’s instruction (same 4B1.1), § analysis for U.S.S.G. cert. only “knowledge” interpreted to cover is denied, 849, 119 525 U.S. “firearm,” possessed a that the (1998). L.Ed.2d 98 adequately it was addressed the court’s hand, other if it is instructions. On the case, prior In this the 1984 conviction a knowl interpreted require “Deadly Weapon— that is issue was for violation, reject properly it was edge of Int/Injure” in violation of Md. Ann.Code law. ed as mischaracterization 27, § provides art. which relevant part: IV carry Every person who shall wear or Finally, Frazier-El contends knife, knife, any switchblade dirk bowie as an armed improperly he was sentenced sandclub, knife, knife, metal knuck- star 924(e). § criminal under 18 U.S.C. career les, razor, nunehaku, any or other dan- 924(e) § 4B1.4. Section See also U.S.S.G. kind, gerous deadly weapon any or 15-year minimum mandates a sentence upon whatsoever ... concealed or about imprisonment person convicted of a every person, person who shall person § if that 922(g) weapons offense ... carry any weapon wear or such convictions ... for a previous has “three openly purpose with the intent or felony drug or a serious offense.” violent any any injuring person unlawful 924(e)(1). felony § A violent U.S.C. manner, guilty shall be of a misdemean- any by more punishable defined as crime or, conviction, be fined upon shall year imprisonment than one $1,000 or imprisoned not more than (i) use, attempted jail, Maryland has as an element the or sentenced use, physical force Department or threatened use for not more of Correction another; or against person years. than three (ii) extortion, arson, in- burglary, or 36(a)(1). By § Md. Ann.Code art. its explosives, or otherwise volves use of terms, provision single creates a of presents conduct that a serious involves ways: “may fense that be committed two physical injury to anoth- potential risk of (1) concealed, weapon with the carried er. injure.” openly with the intent to El State, 924(e)(2)(B). dridge v. 329 Md. 619 A.2d § While Frazier- U.S.C. (1993). The district court found qualifying El that he has two concedes assault, was for a violation that the Frazier-El’s conviction argues convictions for i.e., carrying weap prong, his 1984 of the second improperly district court treated injure.* with the intent to from the weapon evidence that [the] upon by contends that the evidence relied ... carried with the purpose deliberate judge the district was insufficient to injuring make person the or destroying the life this determination. 36(a)(2), § of another.” Independently of 36(a)(1) § possession criminalizes of a To establish that Frazier-El was deadly weapon with the “intent or purpose openly carrying weapon convicted of with of injuring any person.” 36(a)(2), Section injure, intent to the district court relied on which imposes mandatory three-year Maryland court records that contained no sentence, only does so when weapon describing tations conviction was carried “with the deliberate purpose documents, separate two respectively, as of injuring person or destroying the “Deadly Weapon Int/Injure” and “D/W— — life of another.” While the distinction be- Int/Injure.” however, argues, tween an “intent or purpose injuring” clearly these notations do not indicate and a purpose “deliberate of injuring” may type weapon which charged. offense was elusive, it cannot be doubted that the He maintains that the reference to the Maryland legislature meant the latter to “Deadly conviction as Weapon—Int/In signify a culpable more level of intent. 36(a)(1) jure” § any describes violation and Cf. State, Mackall v. 283 Md. 387 A.2d could refer to either a concealed weapon (1978) 765-66 (analyzing “legislative open violation or an possession with intent scheme” as “language manifested in injure suggests violation. He that the 36). § structure” of compar- notation, part first of the “Deadly Weap atively short sentence could imply on,” refers to the prong concealment 36(a)(2) aggravating § factor of part, statute and that the second “Int/In was not found. But this conclusion pro- jure,” possession-with-intent- refers to the ground vides no for inferring that the cer- to-injure prong. argument, This tified upon by records relied the district belies statutory language. Both court misstated the basis 36(a)(1) conviction prongs §of require use of a “dan 36(a)(1). § under gerous or deadly weapon,” and the distinc tion between the prongs two turns on Finally, we that in note connection with weapon whether the is carried concealed the same conduct for which Frazier-El openly. or carried If concealment were 36(a), § was convicted under he was also offense, entry basis of the would theft, guilty found of both assault and “intent-to-injure” include the qualifier. concurrently sentences for which ran with Rather, the comparable entry would read 36(a) § the sentence for violation. “Deadly Weapon —Concealment.” conviction, This coupled assault with the 36(a) conviction, § argues

Frazier-El also length provides that the further evi of his sentence—89 dence that days Frazier-El’s 1984 conviction —indicates 36(a)(1) intent-to-injure use, use, § had “as an prong attempted element the could not have the basis been of conviction threatened use of physical against force 36(a)(2) § imposes three-year another,” person 18 U.S.C. mandatory 924(e)(2)(B)(i), § sentence “if it shall appear or involved conduct that * 924(e)(2)(B)] We do not address whether a conviction under falls under the [§ definition of 36(a)(1), prong carrying § the first Gilbert, felony"), violent and United States v. weapon, qualifying concealed would be a (11th Cir.1998) (same 924(e) predicate purposes § offense for be- 4B1.2(1)), § conclusion under U.S.S.G. cert. parties argue cause the did not the issue and - denied, -, yet this court has not had occasion to consid- L.Ed.2d 787 with States v. Whit split er it. The decisions of other circuits are (8th 1990) (risk field, 907 F.2d Cir. Hall, Compare on the issue. United States v. carrying others from weapon concealed "is (11th Cir.1996) (carrying F.3d present not so immediate” as to serious risk weapon poses concealed "is conduct that seri- physical injury). and, so, potential physical injury ous risk of Lawrence, timely. v. physi- See United States

“presents potential a serious risk Cir.1979). (4th n. 2 another,” injury 18 U.S.C. cal 924(e)(2)(B)(ii). § the con- majority articulates While the accurately, its char- stitutional framework conviction, Notwithstanding the assault attempted of Frazier-El’s acterization 36(a) § conviction Frazier-El’s is somewhat tenuous. waiver of counsel predicate offense for 18 would still be record, I the district court’s As read the 36(a) 924(e) § § violation U.S.C. because request self-rep- of Frazier-El’s denial only carry a requires not the intent mis- resentation rested on a fundamental the intent to dangerous weapon but also a de- understanding “competency” State, injure Anderson v. another. See waiving fendant must demonstrate before (1992). Md. 614 A.2d proceeding pro Recogniz- counsel and se. 36(a) § Indeed, Maryland’s enactment of ing futility affirming the on this fallible prompted by recognition was the such foundation, majority creates a legal presents injury, a serious risk of conduct post hoc rationalization for the district victim, targeted also to to a but majority ruling. accomplishes court’s The pub- unsuspecting general members infirmity in Frazi- by redescribing Anderson, A.2d at 965. We lic. See in- request, emphasizing er-El’s not his that the district court therefore conclude competence but his failure to waive counsel as an sentencing did not err Frazier-El At unequivocal” in a “clear and fashion. armed career criminal under the sentence points, majority engrafts also various 924(e). § provisions of enhancement “legitimacy” fourth criterion onto Faret- given, affirm the For the reasons we framework, three-part arguing that ta’s judgment of the district court. “legitimate” defendants must also AFFIRMED wanting “sincere” reasons for the case is se. This reformulation of MURNAGHAN, Judge, conceptually sophisticated Circuit more than the dissenting: approach. district applied court’s When case, however, the facts of Frazier-El’s majority correctly recites opinion majority’s analysis from modified suffers governing constitutional standards several difficulties. and the Sixth Amendment to counsel correlative under Faretta to waive I. proceed pro counsel and se. See Faretta profoundly Frazier-El was dissatisfied 806, 819, California, 422 U.S. 95 S.Ct. counsel, in court-appointed part with his (1975) (“Although L.Ed.2d 562 argue because his counsel refused to stated Amendment so [Sixth] jurisdiction the court lacked over Frazier- words, many self-representa El as “an officer in the Moorish Science personal tion—to own make one’s defense initially Temple.” sought ly necessarily implied by ... the struc —is appointment of new which the Amendment.”). ture of the fallback, court denied. As a responsibilities incum also identifies permit him to requested that undertaking upon bent defendants before proceed pro se. The court denied this self-representation. Defendants must exe request as well. cute waiver of their Sixth Amendment (1) determining why that is and un The threshold issue is to counsel clear Faretta, 95 the district court equivocal, see denied (2) 2525; knowing, intelligent, and whether a on that denial id.; voluntary, appropriate. also v. basis was The court ex- see see Godinez Moran, 389, 400-01, plained denying 509 U.S. (1993); and Frazier-El’s “Moorish national” 125 L.Ed.2d 321 ability argue he has the to understand the trial an effort “to

argument represented by permitted not be It is the threshold issue in proceedings.”). matters which would case; “I think The court continued: if every this court.” waiver of counsel where he is position is a Mr. incapable understanding defendant is arguments because of competent not adversary proceeding which he is However, himself. represent has made to involved, no trial much a possible, is less absolutely convinced that Mr. this court is conducting trial with the defendant his the nature of the Frazier-El understands representation. own able, if he so desires— proceedings and court, however, spoke The district in his intelligent an man—to assist he is ” “competence” Frazier-El’s lack of in the added). (emphasis .... own defense him ca- pronounced same sentence that a court’s conclusion reflects The district assisting own defense— pable his misunderstanding “competence” of the de- effect, stating, in that the defendant was under- must demonstrate before fendants proceed pro se competent even “Competency” taking self-representation. though competent he was to stand trial. of counsel context is co- the waiver so, improperly a doing applied In the court “competency” necessary extensive with the competency standard of heightened Godinez, at trial. See 509 U.S. to stand purposes, requiring waiver of counsel de- a (holding that defen- seeking representation fendants waives his to counsel need dant who legal an extra measure of ca- demonstrate defendant competent not be “more than a pacity exceeding the baseline standard for not, there is no reason to who does since competency to stand trial.1 The district that the decision to waive counsel believe as a matter court’s conclusion is incorrect higher mental requires appreciably law, given competency stan- ”); Faretta, 422 functioning .... see also symmetrical. in the two contexts are dards (while 835-36, a U.S. at 95 S.Ct. 2525 Faretta, at 95 S.Ct. 2525 See choosing self-representation judicial holding and (rejecting paternalism “competently intelligently,” do so and must respect a must a defendant’s legal “technical knowl- the defendant’s competent desire for determining “not relevant” to edge” is may conduct his own de- even when “he to waive his competent whether he is detriment”); ultimately to his own counsel). fense “Competency” represents the Arlt, also States v. see ability to the nature of minimal understand (“[T]he (9th Cir.1994) Supreme Court’s in one’s proceedings the trial and assist any forbids Godinez, explicitly decision in Godinez 509 U.S. at 401 own defense. See (“The compe- a defendant’s attempt to measure a n. focus of to counsel tency to waive the inquiry defendant’s competency is the ability himself evaluating is whether capacity; question mental actually spoken "whether the defendant Supreme of the determines 1. The Court has often “knowing intelligent” requirement significance as im and conse- understand the does posing “heightened” on defen standard quences particular decision and whether seeking self-representation. uncoerced”). dants See Godi the decision is nez, U.S. at 113 S.Ct. 2680. suggests did that Frazier-El The evidence Godinez, however, explained that the court significance and conse- understand the in fact heightened standard created waiving proceeding quences counsel and intelligent” requirement "knowing and "is se, satisfying heightened thereby competence." heightened standard of Thus, voluntary” requirement. “knowing and Instead, heightened it is a standard Id. confused about even if the district court was 12, 113 S.Ct. cognizance. See id. at 401 n. accidentally proper nomenclature and "competency inquiry” (holding that the inquiry “competency” and the conflated capacity” mental focuses on "the defendant's "knowing voluntary” inquiry, its denial of proceedings,” "ability to understand improper. was still voluntary” inquiry Frazier-El’s "knowing and whereas the sense].”)- effec- Frazier-El wanted to raise arguments The court a tactical [in desire trial than with certitude of his for a up ratchetted the standard tively Assum them on his behalf. to make own apply- valid waiver was for the moment that ing analysis heightened ing “competency” Fra clarity of indeed concerned about the reasons for scrutinized self-representation, zier-El’s rather than seeking pro representation nothing what about equivocal there the trial capacity to understand his basic said. It true that Frazier- rudimentary cogni- proceedings a that he request was conditional one El’s entail. would waiving zance of what counsel alternative,” making it phrased “in the credit, majority opinion cor- To its nuanced than waiver of more an orthodox court, rectly that when in (amorphous raised Arlt gestures toward a particular request whether for self-rep- self-representation leading to an inadver- Thus, complies resentation with Faretta. counsel) right tent waiver of the to are majority’s theory, every request on the simply present in the instant case. If in stated the alternative violates the “clear infirmity there is an in Frazier-El’s re- unequivocal” and requirement only that — quest, it must therefore lie elsewhere. requests sub-set of in stated the alterna- violating policies tive the requirement majority’s the The theory pro second is that embodies. requests se in stated the alternative are unequivocal” not “clear they when are

III. delay, a device disruption, for and distor- majority system. The seems to have -three tion of the majority op. differ- See why pro requests ent theories about 559. A defendant’s duplicitous motivations however, in stating pro request, stated for alternative violate the “clear unequivocal” requirement, vitiating nothing request’s to do with the clarity and request self-representa- unequivocality. suspect defendant’s for I majority (1) tion: requests engen- conditional increase the would counter that a se request (such by risk of inadvertent waiver of dered ulterior motives as the (2) distort) counsel; to requests delay, disrupt, conditional are desire or is not often a manipulative delay, unequivocal” tactic for dis- “clear and in the sense that it ruption, and system; agenda, distortion of the and is tainted with an rather than requests being pure, unalloyed request. conditional are often a strate- This is gic ploy gloss grounds unequivo- to create for reversible creative on the “clear and appeal. requirement. majority error on cal” What is however, really doing, grafting a fourth First, majority argues that a request “sincerity,” “legitimacy,” criterion onto stated in alternative may increase the trilogy governing of factors waiver of risk of “an inadvertent waiver of the right to counsel under Faretta. See by to counsel a defendant’s ‘occasional (“A majority op. at trial must musings on the self-representa- benefits of ” permitted distinguish manip- between a Arlt, tion.’ (quoting F.3d at 519 present particular argu- ulative effort to Adams, 1444). F.2d at In the instant dispense ments and a sincere desire to case, however, request for counsel.”) (emphasis with the benefits of self-representation deep-seated, reflected a added). conviction, persistently held not an “occa- musing” proceed- questionable majori- sional on the benefits of of the pedigree In ing pro separate pretrial proceed- ty’s “sincerity” se. thesis is best illustrated ings spread year, support out over the course of a the cases the cites in Instead, in it in- nothing

it. of the cases has to do with stated the alternative. One waiver of the to counsel at all. The repre- volved a a defendant to factually distinguishable two others are spheres sent himself certain trial example, case. For from the instant enjoying appointed while the benefits of Lawrence, majority cites United States case, counsel others. the instant (4th Cir.1979), 1324-25 as Frazier-El wanted either a new counsel or authority for claim that re- its alternative himself. The defendant quests are invalid Singleton, wanted both simulta- “delay.” when used as a tactic for Law- neously “intermediate accommoda- —an rence did raise concerns about the tenden- “selectively tion” employing] that involved delay cy self-representation requests attorney making while his own de- proceedings; trial but the court discussed system fense.” Id. The “distortion” of the the issue under the rubric of the “timeli- Singleton addressed therefore arose requirement, asking ness” whether courts entirely distinguishable from a scenario requests by honor should from Frazier-El’s conditional waive counsel se after the self-representation. majority’s effort trial has commenced. The Lawrence court export Singleton’s “distortion” rationale held that the requirement “timeliness” unavailing. to the instant case is therefore designed to strike a balance between problematic majority’s Most is the mis- defendant’s leading citation to footnote 46 of Faretta system’s minimizing and the interest proposition that defendants should disruptions, avoiding inconvenience pro requests not use se conditional as a delay, maintaining continuity the of system.” tactic for of the “disruption the trial. Id. Lawrence a is therefore case U.S. at 834 n. 2525. S.Ct. Footnote late, untimely requests about to proceed 46 has se, nothing pro to do with conditional pro pro not in requests about se stated Indeed, requests. se it has nothing to do the Consequently, alternative. it is a red propriety any type with the se herring majority’s analysis. pro in the More- over, Instead, request. “disrup- what little relevance footnote 46’s pos- Lawrence tion” clearly problems may sesses redounds to Frazier-El’s concerns focus on benefit, given that the in defendant Law- arise already granted a court has a after requested rence self-representation only pro request, se and a defendant who is year repeated pretrial a ap- court in untrained the rituals and conventions of after pearances, see id. at Frazi- whereas legal argumentation represents himself er-El request stated his from the outset of normalizing without the influence of a law- pretrial proceedings. the yer. empowers Footnote 46 of Faretta potential courts to deal with disruptions Equally misleading the majority’s ref- irregularities by preventing pro se Singleton, erence to United States making travesty defendants from a (4th of the Cir.1997), F.3d 1091 proposi- for the 46, however, proceedings. Footnote pro tion that requests se stated says nothing about whether a impermissible alternative defendant’s they are when disruptive making pro are an motivations for se system.” “instrument to distort the Lawrence, request legitimate Id. at Singleton 1102. Like constitute basis for pro was not a case about a denying it.2 case, majority distinguishable. 2. The relies question also v. Court In that Martinez Cal., - U.S. -, Appeal logic 120 S.Ct. before Court was whether the (2000), Faretta, proposition recognized 145 L.Ed.2d 597 which a Sixth Amendment trial, general, overarching right that trial have a courts at oneself also confers "ensuring integrity analogous rep- interest in effi an Sixth Amendment trial,” ciency "outweighs during appellate proceedings. which often resent oneself ("Our acting the defendant’s interest in id. as his own See 120 S.Ct. at 687 conclusion in Martinez, however, lawyer.” Id. at 691. Faretta extended to defendant’s consti- attacking is a weak Frazi- short, majority derives its second thesis basis (the “delay, disrup- sincerity-based arose theory request, er-El’s which not from dila- inap- from tion, argument) and distortion” tory disruptive stratagems but from a fact Notwithstanding the case law. posite sincere desire to conduct his own defense seeking a defendant’s motivation grant in the event the court would not him is irrelevant under the representation self appointed argument counsel. The new governing of factors waiver trilogy sought to advance on his major- three eases the right to (that jurisdiction lacked behalf “sincerity” its thesis ity support cites to national) him as a Moorish was in- over to do with the defendant’s nothing one. But Faretta makes deed frivolous in Law- sincerity at all. The defendant that, abundantly pro while clear se defen- lost because his rence practice decorum dants must basic while belated, it was insincere. defense, their conducting the tenuousness he Singleton lost because arguments deny- of their is not a basis for ground middle sought impermissible ing self-representation. them the represen- self-representation between 834, 836, See id. at 2525. problem was what tation counsel. wanted, it. Faretta why he wanted IV. nothing afield because it has is the farthest requests to do with though majority’s analytical Even all, sincerity much with which less “sincerity” through detour thesis is a requests. make such defendants end, yet dead has another theory why requests for as to conditional stronger moorings if it rele- Even had authority, “sincerity” amount to an insuffi- vant decisional Wiggins, to conduct his own defense. tutional (1984)). Finally, judge L.Ed.2d 122 the trial Accordingly, specific holding was con- our obligation provide is under no instruction to the to defend oneself at trial. fined proce- courtroom se defendant on question We now address the different wheth- any "legal perform 'chores’ for the dure or to holding reasoning support er the of that normally carry defendant that counsel would applies when the defendant becomes an also Martinez, (citing out.” 120 S.Ct. at 691 appellant persuad- and assumes the burden of McKaskle, 183-84, 944). U.S. at 104 S.Ct. 465 reviewing ing a court the conviction pro right, various on the se the These limits reversed.”). be the Sixth should Because explained, "gov- reflect the Court Martinez apply appellate pro- Amendment "does not to ensuring integrity ernment’s interest in the 690, "any ceedings,” Court held that id. at the trial,” efficiency "at and of the which will right self-representation ap- to on individual outweigh the defendant's interest in times peal autonomy principles be based on must lawyer.” acting as his own Id. 120 S.Ct. at grounded in the Due Process Clause.” Id. rationale, "integrity efficiency” and 691. The process inquiry, due the In the course of its with does not endow trial courts dicta, observed, right in that "the to Court power "sincerity” to the or the scrutinize self-representation not absolute ... [e]ven is "legitimacy” pro request, or a se as ma- at the trial level....” Id. at 691. The Court pro jority claims. The ex ante limit on se then enumerated the various limits on the unequivo- requests cal; they clear is that and pro right recognized Amendment se in Sixth timely. knowing voluntary; All and and example, Faretta. For the defendant’s standby (appointment the other limits "voluntary self-representation must be self-representa- and counsel termination intelligent” "timely.” judge commenced) The trial post are ex restric- tion once ap- "may terminate or also majority’s tions. The reliance on Martinez point 'standby counsel' —even over the defen- holding misplaced. The ultimate therefore Standby objection necessary.” pro right dant’s Id. se in an addressed Martinez —if trial, participate pro- may setting. counsel also in the trial appellate, rather than a And express ceeding, regarding "integrity consent of even without dicta the Court’s defendant, long participation right efficiency” pro as the on the se restriction seriously appearance judicial undermine the does not authorize does not trial context "sincerity” “legiti- repre- interrogation jury into the before the that the defendant is request. senting (citing macy” se id. McKaskle v. himself. See right “regretfted] cient waiver of the to counsel. Ac taking this action” and was cording majority, defendants like to even act as co-counsel “reluetan[t]” request pro represen Frazier-El often knowledge “since of the law [his] [was] express tation in the alternative for the contrast, By limited.” Id. at 1033. Frazi- purpose creating reversible error on requested self-representation er-El appeal. strategy majority im occasions, multiple beginning at the outset putes to in defendants like Frazier-El pretrial At proceedings. no time volves the defendant’s creation of a Catch- did express any reservations about his “ 22, forcing the to ‘traverse ... a se, ability or proceed pro his desire to thin line’ improperly allowing between the event the court unwilling grant was se, proceed thereby defendant vio primary request his newly appoint- counsel, lating his improperly ed counsel. having the defendant without Fields, furthermore, thereby violating to self- representation.” genuinely was not Murray, conducting Fields interested in (4th Cir.1995) 1024, F.3d (quoting his entire defense on his own. All he States, Cross v. United 1290 really wanted opportunity was the par- (11th Cir.1990)). Because the denial of the ticipate one discrete area of the trial: is a structural the cross-examination of the children he defect never amenable to error harmless assaulting. was accused of Id. at 1034. In analysis, see McKaskle v. Wiggins, 465 sense, proceed pro n. 104 S.Ct. really just pre-text for a different (1984), L.Ed.2d and Arizona v. Fulmi agenda. Because the court held that the nante, 279, 310, 499 U.S. defendant had no to cross-examine (1991), 113 L.Ed.2d majority personally, children it denied his re- concerned that artful criminal defendants quest self-representation, given that will manipulate the “mutual exclusivity of his pro parasitic se motion was on his rights to counsel and self-representa engage desire to in the forbidden cross- tion,” Fields, at F.3d examination. Id. purpose deliberate creating reversible ’ error on short, review. See op. 559. Fields discussion of the “re- versible error” scenario was not essential thesis, “sincerity” Unlike the the “re- to its holding. Interestingly, however, versible error” scenario discussed in Fields lends some credence to a variant Fields at least has a firmer doctrinal majority’s thesis, “sincerity” even grounding in unequiv- Faretta’s “clear and though the majority does not seem to Fields, requirement. ocal” See at recognize develop this fails to im- its (describing the “reversible error” sce- plications. The Fields court held that a nario as problems one of the the “clear and request must, to proceed pro se at a min- unequivocal” requirement helps to com- bat). imum, be Fields, unequivocal, clear and however, knowing distinguishable is and voluntary, timely. with, pro from Yet a se the instant case. To begin the fail, request held, could still if language “reversible error” in Fields is the underlying dicta. defendant’s The Fields court reasons for denied the defen- request seeking self-representation pro illegiti- dant’s for were representation se case, not because it a mate. Id. at 1034. In plot was to create the instant revers- ible the majority error but because the makes a similar only argument defendant requested self-representation when holding once over district court’s finding course of three regarding letters the court and Frazier-El’s “incom- subsequent several hearings. petence” single only referred legitimacy “the tendered, request moreover, he was a ten- of the request arguments and the ad- one, tative qualified by vanced, a comment that he rather than to Frazier-El’s abili- seeking pro represen- for self-rep- some reasons knowing election to make ty are not. legitimate See tation are others and waiver of counsel.” resentation added). Sidestepping conceptual these difficult is- (emphasis at majority op. that, possible three- sues is because there is narrow- Faretta’s suggestion is er, may straightforward grant- basis for framework more waiver of counsel part if request. Even “legitimacy” ing a fourth Frazier-El’s implicitly include however, argument improp- is the Moorish national argument, This criterion. er, clear that no criteria Frazier-El made was provides It question-begging. illegiti- only argument he would have ad- legitimate from distinguishing for course of his contem- seeking self-representa- during for vanced mate reasons the de- plated self-representation. it unanswered the Unlike tion. And leaves Fields, “that he namely, how to recon- fendant in who conceded question: toughest proceed pro for se for one intuition that certain reasons desired cile the improper id. at let the purpose,” are seeking argu- Faret- Moorish command of court know that his national with the unmistakable ta, merely of the issues” should not be ment was “one he which held that courts majority op. at trial. paternalistically second- would raise See in the business of statement, it light a defendant’s de- 557-58. of this was guessing the wisdom of se, more judge’s responsibility “even where ask thor- proceed pro sire to follow-up determine may ough questions ultimate conduct his de- arguing would be 422 U.S. at what else Frazier-El to his own detriment.” fense Instead, during self-representation. 2525. (or, precisely, judge more argument Moorish national Frazier-El’s judge) standing surrogate in as a for trial terms of clearly non-starter request Frazier-El’s glibly presumed that Nevertheless, report as the strategy. nothing more for was Frazi- suggested, competency Frazier-El’s manipulative than “a effort to assert loosely based on argument er-El’s “is himself.” The defenses [Moorish national] Temple Science doctrine of the Moorish quality his Moorish national tenuous America, in the recognized organization basis argument, improper was Frazier-El had United States.” While for self- denying his own “exaggerated” the doctrine for given planning that he was representation, benefit, report concluded competency and had other arguments make other was not delusional and argument that the se, wanting reasons of reli- in an established set grounded in Fields. unlike the defendant Fields, where the gious creeds. Unlike denying compelling court had a reason V. to cross-examine

the defendant’s assaulted, there allegedly the children revisiting, There is one final issue worth denying Frazi- comparable is no reason for argument majority’s with the and it deals to make his Moorish opportunity er-El the trying surreptitiously Frazier-El was simply because argument national phrasing reversible error to create judicial minds as enlightened strikes more in argued I request in the alternative. absurdity. utter error” that the “reversible prior section if it dicta. Even in Fields was inquiry, suggest I scenario To focus the dicta, however, are better there issue of was not that this court need not reach the the “reversible error” wanting ways to deal with Frazier-El’s reasons for whether rule, judicial ex to, by creating a problem than analogous se are proceed pro in ante, requests stated from, pro that all se in the situation distinguishable disfavored. presumptively alternative are certainly need not reach And we Fields. the “re- Indeed, to combat possible it is why thornier antecedent issue the even Adams, way versible error” scenario in a that undeniably both which inures to Fra- respects a defendant’s Faretta right given to zier-El’s paral- the obvious benefit — self-representation guards against its lels between the nature of the conditional abuse. The Ninth opinion pro requests by Circuit’s se made defendants Adams v. Carroll is instructive. Holding the two cases. that the conditional nature of a defendant’s majority Had the read Adams holistical-

request does not ly, fashion, piece-meal rather than in a equivocal, make it explained: court would have seen that the case offers some This conclusion is reinforced when test- simple antidotes to the “reversible error” against ed purposes underlying the majority Pandora’s Box that the is reluc- unequivocality requirement. Adams First, open. tant to suggests Adams seeking to waive the district court must conduct a thorough manner; thoughtless counsel in a and careful colloquy with the defendant to engaged trial court him in extensive dis- pin precisely down what the defendant’s regarding cussion pro- the difficulties of wishes are. If a making defendant is am- ceeding pro per. Adams nevertheless biguous gestures self-representa- toward persisted, choosing to fend for himself tion, the court must confront the defendant rather than rely on counsel whom he and force him to make a more exacting

mistrusted. Nor was his request a mo- statement, ensuring that the defendant un- mentary caprice or thinking the result of precisely derstands rights what his are loud; out he made the request same along with the serious consequences of over and again, over at nearly every waiving counsel. There is no reason that a opportunity. Had request been pro conditional se request should send the granted, appeal based on the denial district court analytical into disorientation. of the assistance of counsel would have flatly Rather than denying a request for frivolous, been in light of the earnest- self-representation because the form of the ness and frequency requests of his to request one, is a conditional represent himself. pur- None of the should simply frame the conditional re- poses requirement served would quest in clear terms and make the defen- by treating furthered a conditional dant acknowledge on the record equiv- properly has understood the request. ocal. example, For say the court should some- thing Id. 1445. to the defendant such as: “You want counsel; new deny that, but if I you you I also note the significance of the imme- then want to represent yourself. Is that diately preceding passage. Right before you correct? And understand that if I concluding that the defendant’s conditional deny your request for new counsel and was in fact “clear and un- grant your fallback request for self-repre- equivocal,” the Adams court raised con- sentation, you thereby your right waive cerns about defendants concocting a “re- counsel and cannot later come back and versible error” phrasing scenario their say my decision grant you self- requests in the alternative —the ex- representation was a your denial of act issue majority. so worrisome to the In you counsel. Do understand that? If fact, the language from Murray Fields v. so, you do still want represent your- majority that the cites to underscore its self?” “reversible error” concerns is lifted verba- Adams, tim from which was decided six Forcing defendants to articulate their years effect, earlier. position se- precise such step terms is one lectively language borrows from Adams toward combating the “reversible error” helps against it rule Frazier-El but scenario. The step second is even simpler. conveniently ignores the holding ultimate long As as the district court elicits the only the defendant ‘represents’ counsel request, of a defendant’s contours precise unacceptable legal through a tenuous argu- not countenance courts will appellate fiction,” it at 95 S.Ct. id. appeal on by defendants ments “defendant, and not his ultimately allowed them is improperly district State, will bear the lawyer [who] need or the district court pro se. The proceed a conviction.” manipu- consequences of personal defendants worry about clever not long as 2525. error” Id. at 95 S.Ct. into “reversible lating them job of a sufficient court does as the district antiquated argu- historical Unlike the the record. the defendant engaging self-representation, Faretta’s ment (“The Bartlett, entire 44 F.3d at 100 See to- “autonomy” compelling rationale is as intricate not requires procedure day ago as it was centuries is undi- intent, the defendant’s assessment ready availability of com- minished strong capacity, but knowledge, times. The counsel modern petent (internal well.”) as patience measure much, hold- recognized Martinez Court omitted). easier It is no doubt quotations repre- ing that “an individual’s decision simple re- makes a the defendant when by the longer compelled no sent himself is se, pro uncluttered quest necessity choosing By try- and fallback scenarios. conditions represen- incompetent or nonexistent over on the district things make easier ing to tation; rather, likely reflects a it more court, however, majority dangerously own cause to ‘conduct his genuine desire ” Faretta fundamental erodes defendants’ Martinez, 120 S.Ct. in his own words.’ seems, “a Zen-like rights by requiring, Faretta, 422 U.S. at (quoting at 689 mantra,” uttering single persistence 2525). (Ervin, J., Fields, at 1044 dissent- sure, not with- pro se To crisp le- “ability spout ing), and the free, Appellate courts are out limits. id., grant a a court will galese,” before however, layers superimpose additional self-representation. availability that reduce the of restrictions majority’s deci- pro right. se VI. that it is less con- suggests to do so sion nominal defer- pays While integ- analytical doctrinal cerned with right recognized ence eroding a surreptitiously rity than with Faretta, of its the unmistakable subtext right. disfavored constitutional and a a nuisance opinion is that the respectfully I dissent. courts anachronism constitutional For ex- possible. curtail whenever should for the majority cites Martinez

ample, the that, “with the increased avail-

proposition counsel, the historical

ability competent do recognizing

reasons for majority op. at force.”

have the same See

560. justification for original historical JOHNSON; Lorraine Caldwell is but one Joan right, Kay Baker; Danny Witherspoon legitimacy. its constitutional

source of Kay Boan; Smith; Deanna Edell Sara the Faretta court Equally important Epps; Frans; Darryl Andrew Bernard insight that the Walker; Nobles; Joseph Wil Chester respect “that grows out of Jr.; Harnett, Joseph Bruce liam the lifeblood of the individual which is Blay Bell; Faye (inter- Anderson; William 95 S.Ct. 2525 law.” Brown; Brewer; lock; Mike omitted). Mike “An unwanted quotations nal notes the district Nevertheless, re counsel: Frazier-El’s pro se request Frazier-El’s for denying represent perfectly quest to himself was representation, committed “an error intelligible. day people clear and Each the extent it its denial on law” to based requests in the alternative make countless argu- proposed feebleness Frazier-El’s (“I’d coffee, you’re if out of like some but legal these “incompetence” ments and tea”; prefer to coffee I’ll take some “I’d Instead of arguments allegedly reflected. movie, possible, a but if not we see that’s error, howev- reversing district court’s instead”). Many go can to the museum er, majority ration- provides post a hoc languages separate linguistic even Frazier- alization for court’s denial of to category subjunctive called mood request self-representation. El’s for sorts state express contingent these that “com- Recognizing the district court’s ments. Because such are “con statements analysis indefensible, petency” the ma- ... equivocal,” Adams v. Car ditional repackages Fra- jority the court’s denial of roll, (9th Cir.1989), F.2d 875 1445 pro request se on two resting zier-El’s as every other federal circuit to consider the (1) different foundations: Faretta’s first question has come the sensible conclu to that to requirement waivers of the requesting that as self-representation sion unequivocal,” be “clear counsel and or a primary “fallback” “alternative” to and a manu- request appointed for new counsel does that defen- requirement factured “fourth” automatically the alternative render legitimate dants have sincere reasons and request unclear or equivocal purposes seeking pro representation. Adams, of Faretta. See 875 F.2d at 1444- majority’s unequivocal” analysis “clear and (conditional request for self- nature of is an attack on of Frazier-El’s form representation equivocal does not make it request. anal- legitimate” Its “sincere and vacillation, provide evidence in view why an attack on Frazi- ysis is the reasons frequency [de of the “earnestness sought pro er-El se representation. himself’); requests represent fendant’s] Kelly, v. 216 n. Johnstone 808 F.2d II. (2d Cir.1986) (“A request proceed First, the request. form of Frazier-El’s equivocal it is an merely is not because majority district contends position, a fall alternative advanced as court denied for self- a primary request back to for different representation counsel.”) (citations Frazier-El re- omitted); Williams v. equivocated, vacillating Cir.1994) (“[A] peatedly Bartlett, (2d between counsel, appointed desire for new on one equivocat defendant is not deemed to have se, hand, and a desire in his ed desire for accurately the other hand. Whether this merely because he that view expresses simultaneously describes district court’s rationale is the alternative re [and] debatable, given quests appointment course of new counsel Baker, ”); more the kinds of .... seemed concerned with United States (10th Cir.1996) (rejecting repeatedly Frazier-El told F.3d the court that argument that did he wanted to government’s represent himself. At the initial unequivocal request; hearing regarding competency not make clear and trial, advisory counsel did not dimin- stand told the court sev- self-representation). ish eral times that he wanted to dismiss his lawyer himself. Frazier-El While the does not embrace the reasserted his position prevails common sense at the competency second hearing when he circuits, other federal I do not read its sought discharge Mr. Ris- opinion creating categorical rule that berg. Finally, before the pre- start of the every request stated in the alternative is trial hearing, again motions Instead, presumptively equivocal one. sought to represent himself repeatedly majority implies that courts must look responded “yes” when the court asked him to the policies underlying the “clear and if that was his desire. Thus the concerns unequivocal” requirement to determine

Case Details

Case Name: United States v. Clinton Bernard Frazier-El

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 2, 2000

Citation: 204 F.3d 553

Docket Number: 98-4462

Court Abbreviation: 4th Cir.