In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐1417
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MILFORD J. CLARK,
Defendant‐Appellant.
___________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 11‐cr‐151 — Sarah Evans Barker, Judge.
____________________
ARGUED APRIL 15, 2014 — DECIDED DECEMBER 19, 2014
____________________
Before RIPPLE and WILLIAMS, Circuit Judges, and ST. EVE,
District Judge*
WILLIAMS, Circuit Judge. Milford Clark strolled into a
credit union wearing a two‐tone baseball hat and sunglasses,
walked out, and got into his blue Ford Crown Victoria. Five
* Of the United States District Court for the Northern District of Illinois,
sitting by designation.
2 No. 12‐1417
days later, a man fitting Clark’s description robbed a bank
wearing a two‐tone baseball hat and sunglasses and left in a
blue Ford Crown Victoria. Authorities interviewed and ul‐
timately arrested Clark for the robbery. Clark wanted to rep‐
resent himself and the magistrate judge found that Clark
waived his right to counsel for proceedings before that court.
The district court considered the issue anew on a motion
from the government and asked Clark questions about his
decision to proceed pro se. Ultimately, Clark decided against
self‐representation. He was convicted, and now argues on
appeal that the district court infringed on his Sixth Amend‐
ment right to proceed pro se because it improperly reconsid‐
ered an issue already decided by the magistrate judge. We
reject this argument because the district court could analyze
whether Clark’s waiver was valid since the magistrate
judge’s ruling was limited to “this juncture” of the proceed‐
ings, namely Clark’s initial appearance. Moreover, the addi‐
tion of DNA evidence to the government’s case gave the
court reason to question whether Clark fully understood the
perils of going pro se and the court properly alerted Clark
about how that evidence changed the nature of the case. We
also find the credit union evidence was properly admitted
for a non‐propensity purpose, to establish Clark’s identity.
Though we are troubled by the government’s introduction of
more evidence than necessary to show Clark’s identity, in‐
cluding a video and witness testimony that were used to
characterize Clark’s actions as “casing” the credit union, any
errors in introducing more than just a still photo and failing
to weigh the probative and prejudicial values of the evidence
on the record were harmless since Clark met the physical de‐
scription of the robber and his DNA was found at the Bank.
Therefore we affirm.
No. 12‐1417 3
I. BACKGROUND
On April 27, 2010, a man robbed the Regions Bank in In‐
dianapolis at gunpoint while wearing a two‐tone hat, dark
sunglasses, and a bandana covering the lower half of his
face. He threw three plastic grocery bags at the teller and or‐
dered him to fill the bags with money. The teller filled one,
which the robber took and fled, leaving the other two be‐
hind. The robber was described as a “stockier” Caucasian
male, approximately 5’9” between 40‐50 years old. Surveil‐
lance video from the drive‐thru showed a blue car drive
away. Early the next morning, police found a blue Ford
Crown Victoria less than half a mile from the Bank. An eye‐
witness confirmed that it was the same car she had seen
around the Bank right before the robbery. Both the car and
the plastic bags at the Bank were swabbed for DNA.
Five days earlier, Larry England visited a Harvesters
Credit Union in Indianapolis, asked for a deposit slip, and
left without conducting any business. A few minutes later,
England’s friend, Clark, got out of his blue Ford Crown Vic‐
toria and went into the same Harvesters. Clark, then fifty‐six
years old, is a Caucasian male who was wearing a T‐shirt
with sunglasses hanging off it and a two‐tone cap. He asked
for a deposit slip, was told the Harvesters did not use depos‐
it slips, and left without conducting any business. Finding
the acts troubling, Harvesters investigated and reported the
incident to the Sheriff’s Department.
The similarities between the Harvesters incident and the
robbery led the Sheriff to Clark. Clark identified himself on
the Harvesters video and it was later determined that some
of Clark’s DNA was in the car and on the plastic bags left at
the Bank. He was arrested and charged with bank robbery
4 No. 12‐1417
and using, carrying, and brandishing a firearm during and
in relation to a crime of violence.
In the first pretrial hearing, Clark’s appointed attorney
told the magistrate judge that Clark wanted to represent
himself. The magistrate judge explained the counts in the
indictment, potential sentences, and what happens during a
jury trial. The magistrate judge then inquired into Clark’s
educational and legal background, his age, personal and
criminal history, and cautioned Clark about the perils of pro‐
ceeding pro se. When Clark insisted that he wanted to repre‐
sent himself, the magistrate judge found the waiver of coun‐
sel valid and granted the motion “at this point, this junc‐
ture.” But he also appointed a federal defender as standby
counsel so that “at any time … if you desire … [he could]
take over.”
Before the district court, the government filed a “Motion
for Hearing Relating to Self‐Representation” noting that it
“anticipates offering evidence at trial of DNA comparisons
from two different locations.” The government admitted that
Clark “engage[d] in a colloquy with the presiding Magistrate
Judge” regarding self‐representation, but stated “it is vitally
important that the Defendant’s decision to forgo counsel be
made with all of the appropriate, formal cautions by the trial
court of record.” The district court granted the motion. At
the hearing, the district court judge inquired anew into
much of the same ground the magistrate judge had covered.
For the first time, the court also covered DNA evidence, not‐
ing it “requires some knowledge of that science” and “that’s
tricky evidence unless you’re a scientist who understands
DNA, or unless you’ve done substantial study.” Clark re‐
sponded by saying he was “reconsidering” self‐
No. 12‐1417 5
representation, but “I think I’m going to go pro se.” But, he
chose to wait until the end of the hearing to decide for sure.
The court next granted the government’s pretrial motion
and found evidence from the Harvesters incident was ad‐
missible non‐propensity evidence that went to establish
Clark’s identity. The court rejected Clark’s pro se objection to
the introduction of the evidence. It then returned to Clark’s
self‐representation. This time, Clark changed his mind and
accepted the appointment of counsel. Clark proceeded to tri‐
al, where the Harvesters evidence came in and he was con‐
victed on both counts. This timely appeal follows.
II. ANALYSIS
Clark asserts the district court’s decision to revisit his
waiver was an unconstitutional infringement on the initial
valid waiver made to the magistrate judge. Clark also argues
the Harvesters evidence violated Federal Rule of Evidence
404(b) because it did not go towards establishing identity,
was more prejudicial than probative, and the government
improperly used it to argue propensity.
A. Clark Was Not Deprived His Sixth Amendment
Right to Proceed Pro Se
Clark argues that the district court should have accepted
his first waiver of counsel as valid and that his Sixth
Amendment right was violated when it revisited the issue.
We disagree because the magistrate judge’s determination
was limited to the initial proceeding, so the district court
properly considered the issue. Moreover, the addition of the
DNA evidence raised the possibility that the initial waiver—
even if unequivocal—was no longer knowing, and the dis‐
trict court needed to bring that to Clark’s attention.
6 No. 12‐1417
Before addressing the merits, we briefly note Clark’s
well‐reasoned argument about our standard of review. We
have recently said we review a defendant’s waiver of his
right to counsel for an abuse of discretion. See, e.g., United
States v. Eads, 729 F.3d 769, 775 (7th Cir. 2013). However, as
Clark points out, there is also a line of cases in this circuit,
which has not been overruled, stating we review these deci‐
sions de novo. See, e.g., United States v. James, 487 F.3d 518, 527
(7th Cir. 2007); United States v. Hoskins, 243 F.3d 407, 410 (7th
Cir. 2001). Since Clark fails under either standard, we do not
decide the issue here. Additionally, we do not need to make
a determination as to whether a magistrate judge can find
that a defendant has properly waived counsel or whether the
district court erred here in purportedly reconsidering the
magistrate judge’s finding of waiver without an objection
from the government because, as we discuss below, the mag‐
istrate’s finding was limited.
The seminal case on a defendant’s right to proceed pro se
is Faretta v. California, 422 U.S. 806 (1975), in which the Court
held that a state may not compel defendants in criminal tri‐
als to be represented by attorneys. A defendant may invoke
his right to proceed pro se if he “knowingly and intelligently”
waives the right to counsel. Id. at 835 (quoting Johnson v.
Zerbst, 304 U.S. 458, 464–65 (1938) and citing Von Moltke v.
Gillies, 332 U.S. 708, 723–24 (1948) (Black, J., plurality opin‐
ion)). The waiver also must be voluntary and unequivocal.
United States v. Volpentesta, 727 F.3d 666, 676 (7th Cir. 2013);
United States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988). To as‐
sure the right is properly waived, we have stressed “the
need for a thorough and formal inquiry in which the court
‘asks the necessary questions and imparts the necessary in‐
formation.’” United States v. Sandles, 23 F.3d 1121, 1126 (7th
No. 12‐1417 7
Cir. 1994) (internal citations omitted). This has commonly
become known as a Faretta colloquy. As the Court noted in
Von Moltke, “a judge must investigate as long and as thor‐
oughly as the circumstances of the case before him demand.
… A judge can make certain that an accused’s professed
waiver of counsel is understandingly and wisely made only
from a penetrating and comprehensive examination of all
the circumstances under which such a plea is tendered.” 332
U.S. at 723–24 (Black, J., plurality opinion).
Clark argues Faretta held that a court may not revisit the
issue since the Supreme Court said a knowing and intelli‐
gent waiver “must be honored out of ‘that respect for the in‐
dividual which is the lifeblood of the law.’” Faretta, 422 U.S.
at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350–51 (1970)
(Brennan, J., concurring)). We do not read Faretta that way
and also reject the premise of Clark’s argument, namely, that
the district court revisited the issue. The magistrate judge’s
ruling was that Clark’s waiver of counsel was valid “at this
point, this juncture.” If the district court had not conducted a
Faretta colloquy, it is likely that Clark would now be arguing
that the magistrate judge’s ruling was unclear and that Clark
did not know whether his waiver was valid for the entire
proceedings or whether he had to revisit the issue later. In‐
stead, the district court judge took it upon herself to ensure
that the waiver was valid and not to accept the limited find‐
ing. The role of determining whether the waiver was valid
falls squarely on the judge, and she took that role seriously.
Von Moltke, 332 U.S. at 723–24. We commend the district
court in her efforts to protect that right and make sure it was
properly invoked.
8 No. 12‐1417
Further supporting our conclusion that the district court
properly delved into the waiver issue is that the nature of the
case had changed with the government’s statement that it
was anticipating that DNA evidence was going to be intro‐
duced. This is not necessarily the type of case with “a sub‐
stantial change in circumstances [that] will require the district
court to inquire whether the defendant wishes to revoke his
earlier waiver.” United States v. Fazzini, 871 F.2d 635, 643 (7th
Cir. 1989) (emphasis added); see also United States v. Erskine,
355 F.3d 1161, 1171 (9th Cir. 2004) (finding change in poten‐
tial sentences required renewed colloquy); Panagos v. United
States, 324 F.2d 764, 765 (10th Cir. 1963) (noting “unreasona‐
ble amount of” time between colloquies was substantial
change); Davis v. United States, 226 F.2d 834, 840 (8th Cir.
1955) (finding “an unreasonable lapse of time, newly discov‐
ered evidence which might require or justify advice of coun‐
sel, new charges brought, a request from the defendant, or
similar circumstances” constitute a substantial change).
However, just because she was not required to revisit the
waiver does not mean the district court judge was prohibited
from doing so. Clark has not pointed us to, nor could we
find, a single case in which the court erred by conducting
multiple Faretta colloquies. This court has affirmed the use of
multiple Faretta colloquies in a number of cases. See, e.g.,
United States v. England, 507 F.3d 581, 586 (7th Cir. 2007)
(questioning by “both the magistrate judge and the district
court adequately informed England of exactly what he was
waiving”); see also United States v. Oreye, 263 F.3d 669, 672
(7th Cir. 2001). Here, the characteristics of the trial changed
when the government wrote it “anticipates offering evidence
at trial of DNA comparisons from two different locations.”
The district court might have thought that an important ab‐
No. 12‐1417 9
sence from the magistrate judge’s colloquy which merited a
renewed inquiry, and it conducted extensive questioning on
how DNA and expert testimony would alter the proceed‐
ings. Cf. United States v. Hantzis, 625 F.3d 575, 581–82 (9th Cir.
2010) (finding no additional Faretta inquiry required since
pro se defendant “knew what the expert would testify to” re‐
garding tests he performed on drug evidence). This change
could very well have affected Clark’s understanding of the
dangers of self‐representation because expert testimony of‐
ten makes the trial more factually and procedurally compli‐
cated than it otherwise would be. The court was right to
make sure Clark understood the import of this new evidence
and testimony. Indeed, it is rare that all of the relevant in‐
formation that should go into a defendant’s decision to pro‐
ceed pro se will be available during the initial hearing in front
of the magistrate judge. In the normal case, the criminal de‐
fendant will not yet have received discovery, reviewed or
prepared motions in limine, or even necessarily come to
know all of his co‐defendants. The best practice would be to
follow the example of the district court judge in this case and
revisit the waiver issue, regardless of any proceedings in
front of the magistrate judge, to ensure that the decision to
proceed pro se truly is knowing, intelligent, voluntary and
unequivocal.
In affirming the district court’s actions, we reject Clark’s
contention that this DNA inquiry impermissibly took into
account his “technical legal knowledge,” which is “not rele‐
vant to an assessment of [a defendant’s] knowing exercise of
the right to defend himself.” Faretta, 422 U.S. at 836. The
judge’s statements were no more than warnings about the
nature of the proceedings, akin to discussing the purpose of
opening statements, possible strategies for cross‐
10 No. 12‐1417
examination, or the burdens of proof, all of which were part
of a line of inquiry we called “an impressive illustration.”
England, 507 F.3d at 587. DNA analysis does not require legal
knowledge—as the judge noted, it requires scientific
knowledge—and the court was also assuring itself that Clark
understood the complexities that come with expert testimo‐
ny. Had the court denied the waiver because Clark could not
state what qualifications an expert must possess or what ev‐
idence is admissible, we would have a different issue. See
Faretta, 422 U.S. at 836 (finding it error to reject waiver be‐
cause of “how well or poorly Faretta had mastered the intri‐
cacies of the hearsay rule and the California Code provisions
that govern challenges of potential jurors on voir dire”). That
is not the case here. The court did not err by conducting its
inquiry or discussing the impact of the DNA evidence on the
mechanics of the trial.
B. No Abuse of Discretion or Harmful Error In Admis‐
sion of Harvesters Evidence
Clark also argues the court erred in admitting, without
analysis, the Harvesters Credit Union evidence. He contends
it was not properly admitted to show his “identity” and the
government violated Federal Rule of Evidence 404(b) by us‐
ing it for improper propensity purposes. However, because
the identity of the bank robber was the key determination at
issue, the physical similarities between the man shown at
Harvesters and the Bank matched up, and any error was
harmless, we affirm.
The government argues that Clark waived this argument
because he only objected to use of the Harvesters photos, ra‐
ther than all of the evidence, in his pro se pretrial objection.
Since courts should liberally construe pro se briefs, Estelle v.
No. 12‐1417 11
Gamble, 429 U.S. 97, 106 (1976), and because Clark broadly
objected to the “governments 404B [sic] motion,” we find no
waiver. Moreover, because a ruling had already been made,
Clark’s counsel did not have to renew his objection to admis‐
sion of the evidence at trial, and so there was no forfeiture or
waiver. See United States v. Acox, 595 F.3d 729, 733 (7th Cir.
2010) (citing Fed. R. Evid. 103(a) and Wilson v. Williams, 182
F.3d 562, 565–67 (7th Cir. 1999) (en banc)). Therefore, we re‐
view for abuse of discretion. United States v. Gomez, 763 F.3d
845, 858 (7th Cir. 2014) (en banc).
Rule 404(b) prohibits the admission of evidence of other
crimes, wrongs, or acts for the purpose of proving a personʹs
character or propensity to behave in a certain way, but per‐
mits the use of this evidence for other purposes, including
identity. See id. at 852. Since the district court’s ruling, we
have abandoned our old four‐part test of admissibility under
Rule 404(b). Id. at 852–53. Under our new analysis, “[t]he
proponent of the evidence must first establish that the other
act is relevant to a specific purpose other than the personʹs
character or propensity to behave in a certain way …
through a chain of reasoning that does not rely on the for‐
bidden inference that the person has a certain character and
acted in accordance with that character on the occasion
charged in the case.” Id. at 860. If that is done, the court must
“assess whether the probative value of the other‐act evi‐
dence is substantially outweighed by the risk of unfair prej‐
udice,” and this “balancing should take account of the extent
to which the non‐propensity fact for which the evidence is
offered actually is at issue in the case.” Id.
Clark said he did not rob the Bank, and so the govern‐
ment sought to introduce evidence rebutting that contention.
12 No. 12‐1417
The government produced evidence from Harvesters that a
stocky Caucasian male, around 5’10” in his 40s or 50s wear‐
ing a two‐tone baseball hat and sunglasses walked in and
eventually left in a blue Ford Crown Victoria. It also pro‐
duced evidence from the Bank that a stocky Caucasian male,
roughly 5’9” in his 40s or 50s entered with a two‐tone base‐
ball hat and sunglasses and left in a blue Ford Crown Victo‐
ria. What makes the evidence especially relevant and proba‐
tive of identity is Clark’s admission that he was the individ‐
ual on the Harvesters video. So, knowing that was him, the
jury could compare the physical descriptions and images of
Clark as he appeared at Harvesters and the man in the Bank
and determine whether they matched up. The evidence went
towards identity, which is a non‐propensity purpose, and
was established through a non‐propensity chain of reason‐
ing. See, e.g., United States v. Robinson, 161 F.3d 463, 466–68
(7th Cir. 1998) (finding similarities between defendant’s
headwear, clothes, accessories, and getaway car from bank
robberies, among other things, made acts probative of identi‐
ty); United States v. Powers, 978 F.2d 354, 361 (7th Cir. 1992)
(noting similarities between defendant’s hat, clothes, acces‐
sories, among other things, went towards identity in bank
robbery case); cf. United States v. Seals, 419 F.3d 600, 607 (7th
Cir. 2005) (finding “generic” identification evidence that de‐
fendants “disguise[d] their identities, carr[ied] firearms, and
use[d] a stolen vehicle” inadmissible because of difference in
disguises, number of robbers and guns used).
However, we have concerns about the prejudicial effect
of some of the evidence. If it was only being admitted for
identity purposes and to compare the man at Harvesters
with the man at the Bank, there was no need to admit any
evidence other than the picture of Clark at Harvesters. The
No. 12‐1417 13
jury would not even have known that the picture was taken
at a credit union since there was nothing in the picture that
would have allowed the jurors to identify the generic look‐
ing lobby as part of a financial institution. The video, on the
other hand, showed the actions the government later termed
as “casing,” namely Clark looking around the room before
leaving. Moreover, there was no reason under the govern‐
ment’s rationale to have any employee testify that they
thought Clark was “casing” Harvesters or even to describe
his actions once inside. None of that was relevant to identity.
A witness could have laid the foundation for the picture of
Clark inside and images of the car outside without getting
into the thorny and problematic testimony about what Clark
did inside Harvesters. There was a risk of prejudice by in‐
troducing the witness testimony and videos since the jury
could have taken it as propensity evidence, namely that
Clark was considering robbing Harvesters before subse‐
quently robbing the Bank, and therefore had a propensity to
rob financial institutions. As Clark points out, even if the ev‐
idence was properly admitted in the first instance, the gov‐
ernment took advantage of this overkill by arguing that
Clark’s visit to Harvesters amounted to “suspicious behav‐
ior,” and Harvesters employees thought he was “casing” to
see if it “might be a good credit union for a bank robbery.”
See United States v. Richards, 719 F.3d 746, 763–64 (7th Cir.
2013) (noting properly admitted evidence cannot then be
used “in support of some other [improper] argument or in‐
ference,” especially a propensity argument).
Even though this is problematic, Clark put his identity at
issue by taking the stand and testifying that he did not rob
the Bank, see Gomez, 763 F.3d at 857, 860, and we do not find
that the prejudicial value substantially outweighed the pro‐
14 No. 12‐1417
bative value of this evidence. Fed. R. Evid. 404(b); see also,
e.g., United States v. Price, 516 F.3d 597, 603–04 (7th Cir. 2008)
(finding no error in admitting evidence of bank robbery five
months prior); Robinson, 161 F.3d at 468. Moreover, there was
a limiting instruction given to the jury about the use of the
404(b) evidence1 and such instructions help “in reducing or
eliminating any possible unfair prejudice from the introduc‐
tion of Rule 404(b) evidence.” United States v. Denberg, 212
F.3d 987, 994 (7th Cir. 2000).
Clark also correctly asserts that the district court did not
adequately spell out its reasons for admitting the Rule 404(b)
evidence. The district court told Clark that the government
has “narrowed the purposes of the evidence that [it] in‐
tend[s] to present to basically prove identity. … [A]pparently
[it has] witnesses who can put you there, and other evidence,
that at that time you were wearing a distinctive baseball cap,
and were seen in [the Victoria] by credit union employees.”
The court understood the non‐propensity purpose for which
the evidence was being admitted and its relevance. Howev‐
er, it did not explicitly weigh the probative and prejudicial
values on the record. Had the district court explicitly bal‐
anced the prejudicial effects and probative value on the rec‐
ord, as we have done here, it might have had the same con‐
cerns we have expressed and concluded that the volume of
identifying evidence was unnecessary and overly prejudi‐
1 The judge told the jury: “You have heard evidence of wrongful acts of
the defendant other than those charged in the indictment. You may con‐
sider this evidence only on issues of opportunity, preparation, plan,
knowledge, or identity. You must consider this evidence only for these
limited purposes.”
No. 12‐1417 15
cial. But it did not, which was an error. So now we ask
whether the error was harmless. See United States v. Miller,
688 F.3d 322, 328–30 (7th Cir. 2012) (finding error in not
weighing prejudice and probative values on the record, but
finding error harmless); United States v. Beck, 625 F.3d 410,
417 (7th Cir. 2010) (conducting harmless error test after find‐
ing evidence substantially more prejudicial than probative).
The test is, “whether, in the mind of the average juror, the
prosecutionʹs case would have been significantly less per‐
suasive had the improper evidence been excluded.” Gomez,
763 F.3d at 863 (internal quotation omitted). Since the DNA
evidence and the fact that Clark fit the description of the
robber provided strong evidence of guilt, we cannot say the
prosecution’s case would have been significantly less per‐
suasive had the evidence been excluded. To the extent that
the prejudicial effect substantially outweighed the probative
value and the court’s failure to weigh those effects on the
record was error, any error was harmless.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district
court.