FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50269
Plaintiff-Appellee, D.C. No.
v. 3:08-CR-03679-
JORGE FARIAS, LAB-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
May 4, 2010—Pasadena, California
Filed August 20, 2010
Before: Betty B. Fletcher and Richard A. Paez,
Circuit Judges, and Donald E. Walter, District Judge.*
Opinion by Judge Paez
*The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
12483
12486 UNITED STATES v. FARIAS
COUNSEL
Janet C. Tung, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
George V. Manahan, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
OPINION
PAEZ, Circuit Judge:
Defendant-appellant Jorge Farias appeals his conviction of
one count of attempted entry after deportation, in violation of
8 U.S.C. § 1326. Farias argues that he was wrongly denied his
Sixth Amendment right to self-representation when, after he
timely invoked his right to proceed pro se and during the
Faretta colloquy, the district court informed him that the trial
would not be continued. Farias also argues that his sentence
was substantively unreasonable because it exceeded the maxi-
mum parsimonious sentence permitted by 18 U.S.C.
§ 3553(a). Because we conclude that Farias was denied his
Sixth Amendment right to self-representation, we reverse
UNITED STATES v. FARIAS 12487
Farias’s conviction. In light of that holding, Farias’s sentenc-
ing challenge is moot.
I
After numerous state and federal criminal convictions,
Farias was found deportable by clear and convincing evidence
at an in absentia hearing in 2008 and was ordered removed
to Mexico. Later that year, he was arrested and charged with
attempting to enter the United States after having been previ-
ously deported, in violation of 8 U.S.C. § 1326. His trial was
scheduled for January 13, 2009. On January 12, during a pre-
trial hearing, Farias expressed dissatisfaction with his attor-
ney, who he claimed had failed to file a collateral challenge
to his prior removal order. Farias then stated: “Now, if you’d
give me the opportunity, then, I would like to go pro se. I’m
asking you respectfully.” In response, the district court
replied, “You have a right to do that. . . . The Constitution’s
been interpreted by the Supreme Court to say if you want to
do that, you’ve got a right to do that. But it’s never good
advice to do that.” The district court then attempted to dis-
suade Farias from proceeding pro se, inquired as to why
Farias was displeased with his attorney, and imparted his own
favorable opinion of Farias’s attorney’s legal acumen. During
this colloquy, the district court stated:
Mr. Farias, you have a right to represent yourself.
I’m not going to tell you you don’t. I’d have to go
through some more discussion with you about that if
that’s what you choose to do. But your case is going
to go to trial tomorrow. We’re calling a jury in to try
the case tomorrow. And I don’t know if you’re ready
to try the case tomorrow. That’s when it’s set.
Shortly thereafter, the district court reiterated the warning:
Now, again, I’m trying to talk you out of it, but I
want to emphasize to you you have a right to do it
12488 UNITED STATES v. FARIAS
if that’s what you want to do. But it’s not going to
forestall your trial. Your trial is going to go forward
tomorrow.
I mean, if you feel like you’re ready to stand in
[your counsel’s] shoes and try your own case, then
that’s your decision to make. I have a little bit more
I want to talk to you about that and tell you what the
maximum penalty is and some other things, but I
would encourage [you] not to do it. I’m presuming
at this point that you’re not guilty of this charge, and
your lawyers are ready to fight for you in front of the
jury and say, “Look, he’s not guilty of this. He didn’t
do this. Don’t convict him of this.”
. . . You seem pretty passionate about this your-
self, but I just don’t know that you’re ready to step
into his shoes and do this.
Farias then responded: “You have a point. What’s that other
type of trial that you may have?” The district court then
moved on to discussing whether Farias wanted a jury trial or
a bench trial, and the issue of self-representation was not dis-
cussed again before the end of the trial.1
II
[1] The Sixth Amendment provides: “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
[a]ssistance of [c]ounsel for his defence.” U.S. Const. amend.
VI. The Sixth Amendment not only guarantees the right to
counsel, but also guarantees the converse right to proceed
without counsel at trial. Faretta v. California, 422 U.S. 806,
814-15 (1975). In order to invoke the right to self-
1
Farias renewed his request to proceed pro se after the conclusion of the
trial and before sentencing. He does not, however, claim an independent
violation of his Sixth Amendment right based on this second request.
UNITED STATES v. FARIAS 12489
representation, a criminal defendant must make a timely2 “un-
equivocal, voluntary, [and] intelligent” request. United States
v. Maness, 566 F.3d 894, 896 (9th Cir. 2009) (per curiam).
Once a defendant makes an unequivocal request to proceed
pro se, the court must hold a hearing—commonly known as
a Faretta hearing—to determine whether the defendant is
knowingly and intelligently forgoing his right to appointed
counsel. United States v. Mendez-Sanchez, 563 F.3d 935, 945
(9th Cir. 2009) (citing Faretta, 422 U.S. at 835). In this cir-
cuit, a Faretta hearing must make the defendant aware of “(1)
the nature of the charges against him; (2) the possible penal-
ties; and (3) the dangers and disadvantages of self-
representation.” United States v. Farhad, 190 F.3d 1097, 1099
(9th Cir. 1999) (per curiam).
It is plain, and the government does not dispute, that Farias
initially made a timely and unequivocal waiver of his right to
counsel when he stated: “Now, if you’d give me the opportu-
nity, then, I would like to go pro se. I’m asking you respect-
fully.” The district court judge’s response, “[y]ou have a right
to do that,” indicates that he understood Farias to be invoking
his right to self-representation. See United States v. Her-
nandez, 203 F.3d 614, 621 (9th Cir. 2000) (using the trial
judge’s response to a request to proceed pro se as evidence
that the request was unequivocal), overruled on other grounds
by Indiana v. Edwards, 554 U.S. 164 (2008). With this under-
standing, the district court then began to conduct the Faretta
hearing by advising Farias of the dangers and disadvantages
of self-representation.
The government argues that, during the course of the
Faretta colloquy, Farias equivocated on his request to pro-
ceed pro se by stating, “you have a point,” and that the district
court therefore acted within its discretion when it moved on
2
Under this circuit’s case law, a request is timely when it is made before
the jury is empaneled. United States v. Arlt, 41 F.3d 516, 519 (9th Cir.
1994). Neither party disputes that Farias’s request was timely.
12490 UNITED STATES v. FARIAS
to other topics without completing the advisements. Farias, on
the other hand, argues that he did not equivocate and that the
district court erred by failing to complete the Faretta hearing.
Moreover, Farias argues that even if he did equivocate, it was
only as a result of the district court’s admonition that the trial
would not be continued and that he would therefore have less
than a day to prepare for trial. Accordingly, Farias contends
that the district court committed reversible error by leading
him to believe he would not have adequate time to prepare
himself for trial which, he asserts, amounted to the outright
denial of his request to proceed pro se. We agree with Farias
that in so doing, the district court committed reversible error.3
III
[2] When a defendant makes an unequivocal, voluntary,
and intelligent request to proceed pro se, a district court may
refuse the request only in limited circumstances. Maness, 566
F.3d at 896. In fact, a timely request to proceed pro se—made
unequivocally, knowingly and intelligently—must be granted
so long as it is not made for purposes of delay and the defen-
dant is competent. Id.
[3] Here, Farias timely requested to proceed pro se before
the jury was empaneled, and the district court made no
findings—nor gave any indication—that Farias sought to
delay the impending trial by invoking his right to self-
representation. To be sure, as we explained in Fritz v. Spal-
ding, 682 F.2d 782, 784 (9th Cir. 1982), where a defendant
makes a request to proceed pro se on the eve of trial, “a show-
ing that his motion included a request for a continuance would
be strong evidence of a purpose to delay.” Even if Farias’s
request implicitly included a request for a continuance, how-
ever, the inquiry cannot stop there. Id. “The court must also
3
We therefore need not address Farias’s alternative arguments that
would require us to determine whether he indeed equivocated, or whether,
if he did, the district court was required to complete a full Faretta hearing.
UNITED STATES v. FARIAS 12491
examine the events preceding the motion, to determine
whether they are consistent with a good faith assertion of the
Faretta right and whether the defendant could reasonably be
expected to have made the motion at an earlier time.” Id. at
784-85.
[4] The district court here did not identify—nor can we
find in the record—any other circumstances that suggest that
Farias’s motion was made in bad faith for the purposes of
delay. Although Farias had appeared before the district court
in December 2008—nearly a month before he made his
request—and presumably could have made a similar request
then, he had not encountered the problems that motivated his
request at that point. Specifically, during the Faretta collo-
quy, Farias complained to the district court that: “[A]ll week,
I’ve been waiting for [my counsel] to come see me to explain
certain things to me. He hasn’t done that.” Although Farias
later admitted that his counsel had visited him within the prior
week, he was apparently still unhappy with the frequency of
counsel’s communication.
[5] Farias also complained that his counsel had failed to
file certain motions, including a challenge to his prior
removal. Again, although the district court assured Farias that
his counsel had filed motions attacking his deportation, Farias
persisted in his request to proceed pro se and complained that,
in any event, his counsel had failed to inform him of which
motions he had filed. As the circumstances motivating
Farias’s motion to proceed pro se only arose shortly before
the pretrial hearing at which he invoked his Sixth Amendment
rights, there is no additional evidence that Farias requested to
proceed pro se for purposes of delay. Apart from the time of
Farias’s request the day before trial, there is no other evidence
that Farias sought to delay the trial, nor did the district court
express any concern as to that possibility. In light of these cir-
cumstances, we conclude that Farias was entitled to proceed
pro se, provided he knowingly and intelligently waived his
right to counsel. Because the district court did not complete
12492 UNITED STATES v. FARIAS
the Faretta hearing, however, the court never determined
whether Farias’s request was made knowingly and intelli-
gently.
The government does not dispute that Farias was entitled to
proceed pro se if he met the Faretta requirements. Instead, the
government argues that, because the district court did not
explicitly deny Farias’s motion, Farias’s Sixth Amendment
rights were not violated. Specifically, the government argues
that Farias in fact equivocated in the midst of the Faretta col-
loquy, thereby abandoning his request. Thus, in the govern-
ment’s view, the district court had neither the obligation nor
the opportunity to rule on Farias’s request. That interpretation
of events is not without support in the record. Indeed, the dis-
trict court never told Farias that he would not be entitled to
proceed pro se. Rather, the district court explicitly told Farias
that, “as far as representing yourself, you have a right to do
that.” Nor did the district court ever make a formal ruling
denying Farias’s motion.
[6] This, however, reflects too limited an understanding of
Farias’s right to self-representation. A criminal defendant
does not simply have the right to represent himself, but rather
has the right to represent himself meaningfully. Meaningful
representation requires time to prepare. Milton v. Morris, 767
F.2d 1443, 1446 (9th Cir. 1985) (“[T]ime to prepare . . . [is]
fundamental to a meaningful right of representation.”)); see
also Powell v. Alabama, 287 U.S. 45, 59 (1932) (“It is vain
to give the accused a day in court with no opportunity to pre-
pare for it . . . .” (internal quotation marks omitted)); Armant
v. Marquez, 772 F.2d 552, 557-58 (9th Cir. 1985) (holding
that where a defendant had unequivocally invoked his right to
proceed pro se the day before trial, the district court’s denial
of his request for a continuance constituted an abuse of discre-
tion and “effectively rendered his right to self-representation
meaningless”); Barham v. Powell, 895 F.2d 19, 22 (1st Cir.
1990) (“If [the defendant] needed that extra time to exercise
his right to self-representation in a meaningful way, then
UNITED STATES v. FARIAS 12493
denying him the time effectively deprived him of the right and
may have been constitutional error.”). Although the district
court never expressly denied Farias’s request to proceed pro
se, it denied him the opportunity to prepare for trial and
accordingly denied him his right to meaningful self-
representation.
Here, during the Faretta hearing, the district court twice
made clear to Farias that if he chose to exercise his right to
proceed pro se, he would be expected to proceed to trial the
following day, with less than twenty-four hours to prepare.
The court first stated, “[Y]ou have a right to represent your-
self. . . . But your case is going to go to trial tomorrow. We’re
calling a jury in to try the case tomorrow. And I don’t know
if you’re ready to try the case tomorrow. That’s when it’s
set.” Shortly thereafter, the court reiterated, “Your trial is
going to go forward tomorrow.”
[7] Together, those two admonitions sent Farias the unmis-
takable message that if he chose to proceed pro se, he would
not be granted any additional time to prepare for trial. This
undoubtedly would have panicked Farias and left him with
too little time to meaningfully prepare for trial. Although we
need not decide precisely how much time Farias would have
needed to prepare for trial, we are certain that a single day’s
preparation was wholly insufficient.4 Thus, by making it clear
4
The government points out that eleven weeks had passed between
Farias’s indictment and his request to proceed pro se, and thus argues that
Farias had eleven full weeks to prepare for trial. That argument is not per-
suasive because it conflates the time that Farias had to prepare himself for
trial with the time his attorney had to prepare for trial. Under these circum-
stances, Farias could not have been reasonably expected to prepare him-
self for trial while represented by counsel. See United States v. Wilson,
690 F.2d 1267, 1278 (9th Cir. 1982) (Fletcher, J., dissenting)
(“Meaningful access for the pro se litigant involves, at a minimum, some
time to prepare and some means of getting prepared for trial. [Defendant]
had absolutely no time to prepare. Appointed counsel’s preparation to con-
duct the trial is not the equivalent of [defendant] getting himself pre-
pared.”)
12494 UNITED STATES v. FARIAS
that Farias would have no time to prepare if he chose to pro-
ceed pro se, the district court denied him his right to meaning-
fully represent himself.
[8] It makes no difference that Farias did not request, and
the district court therefore did not expressly deny, a continu-
ance in this case. We recognize that in a similar case, the dis-
trict court denied a continuance and required the defendant to
go to trial only one day after granting his request to proceed
pro se. Armant, 772 F.2d at 554-55. Here, by contrast, the dis-
trict judge merely warned Farias that he would deny any
request for a continuance were one to be made. We see no
reason to distinguish the two cases as a result of their different
sequence of events. The same rationale animates both: a right
to proceed pro se without adequate time to prepare renders
that right “meaningless.” Where a district court improperly
denies time to prepare for trial, as in Armant, or improperly
threatens to deny such time, as here, the harm is “no less than
the effective denial of [a defendant’s] Constitutional right to
self-representation.” Id. at 557.
[9] In concluding that the district court deprived Farias of
his Faretta right to proceed pro se, we emphasize that our
conclusion relies on the fact that the district court made no
findings that the purpose of Farias’s request was to delay the
trial and that the record contains no evidence of such purpose.
We express no opinion on whether, after finding that a defen-
dant seeks to proceed pro se for the purpose of delay, a dis-
trict court may refuse to grant the defendant additional time
to prepare. See Gonzalez v. INS, 82 F.3d 903, 908 (9th Cir.
1996) (“The decision whether to grant a continuance is in the
sound discretion of the trial judge and will not be overturned
except on a showing of clear abuse.” (internal quotation
marks omitted)). Nor do we express any opinion on whether
other circumstances might justify such a refusal. See United
States v. Robinson, 913 F.2d 712, 715 (9th Cir. 1990) (“A
criminal defendant may be asked to choose between waiver
and another course of action so long as the choice presented
UNITED STATES v. FARIAS 12495
to him is not constitutionally offensive.” (quoting United
States v. Moya-Gomez, 860 F.2d 706, 739 (7th Cir. 1998)).
Here, though, in the absence of any such circumstances, we
hold that, in foreclosing any possibility of a continuance, the
district court effectively denied Farias the right to meaning-
fully represent himself as guaranteed by the Sixth Amendment.5
IV
[10] The district court’s improper denial of Farias’s
request to proceed pro se is structural error and therefore
requires reversal. See McKaskle v. Wiggins, 465 U.S. 168,
177 n. 8 (1984) (“Since the right of self-representation is a
right that when exercised usually increases the likelihood of
a trial outcome unfavorable to the defendant, its denial is not
amenable to ‘harmless error’ analysis.”); Maness, 566 F.3d at
896 (“An improper denial of a request to proceed pro se . . .
is not amenable to harmless error analysis. The right is either
respected or denied; its deprivation cannot be harmless.”
(internal quotations marks omitted)). Therefore, Farias’s con-
viction is vacated, and this matter is remanded to the district
court for a new trial. Accordingly, Farias’s challenge to the
substantive reasonableness of his sentence is moot.
VACATED AND REMANDED.
5
Farias additionally argues that, by forcing him to choose between his
right to meaningfully prepare for trial and his right to proceed pro se, the
district court’s admonitions violated the doctrine of unconstitutional con-
ditions. The doctrine of unconstitutional conditions “limits the govern-
ment’s ability to exact waivers of rights as a condition of benefits, even
when those benefits are fully discretionary.” United States v. Scott, 450
F.3d 863, 866 (9th Cir. 2006). As we conclude that Farias’s Sixth Amend-
ment rights were violated and that his conviction must be vacated as a
result, we need not address this alternative argument.