United States v. Phillip Ductan

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4220

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PHILLIP DUCTAN,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:04−cr−00252−RJC−DSC−1)

Argued: May 13, 2015 Decided: September 2, 2015

Before MOTZ, SHEDD, and DIAZ, Circuit Judges.

Vacated and remanded by published per curiam opinion. Judge
Diaz wrote a separate concurring opinion.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Ross
Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Erin E. Comerford,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
PER CURIAM:

Phillip Ductan appeals his convictions for conspiracy to

possess with intent to distribute marijuana, possession with

intent to distribute marijuana (and aiding and abetting the

same), and carrying a firearm during and in relation to those

drug trafficking crimes, in violation of 21 U.S.C. §§ 841 and

846, 18 U.S.C. § 2, and 18 U.S.C. § 924(c)(1). Ductan contends

that the district court violated his Sixth Amendment right to

counsel when it (1) required him to proceed pro se after finding

that he had forfeited his right to counsel, and (2) subsequently

removed him from the courtroom and chose a jury in his absence.

We hold that the magistrate judge erred in concluding that

Ductan forfeited his right to counsel. And nothing in the

record supports the government’s alternate contention that

Ductan waived—either expressly or impliedly—that right. Because

the error is not harmless, we vacate Ductan’s conviction and

remand for a new trial.

I.

A.

In April 2004, a confidential informant told the Charlotte-

Mecklenburg Police Department (the “CMPD”) that Ductan had

offered to sell him 100 pounds of marijuana. In response to the

tip, the CMPD set up a controlled buy at a Cracker Barrel

2
restaurant in Charlotte, North Carolina. When the informant

arrived, he was met by Ductan and two other men, Mark Lowery and

Landis Richardson, who were seated in a Ford SUV. After Ductan

showed the informant a package of marijuana, CMPD officers moved

in to arrest the three men, prompting Ductan to throw a firearm

on the ground and attempt to flee. The officers discovered

other firearms at the scene, as well as a significant quantity

of marijuana in Lowery’s nearby SUV. Ductan was charged in

North Carolina state court with trafficking in marijuana and

carrying a concealed firearm, but the charges were dismissed.

B.

In September 2004, a federal grand jury indicted Ductan and

his co-conspirators on charges of conspiracy to possess with

intent to distribute marijuana (in violation of 21 U.S.C.

§ 846), possession with intent to distribute marijuana and

aiding and abetting the same (in violation of 21 U.S.C. § 841

and 18 U.S.C. § 2), and carrying a firearm during and in

relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)).

An arrest warrant issued, but Ductan was not arrested until May

2012.

At his initial appearance before the magistrate judge,

Ductan indicated that he had retained attorney Charles Brant to

represent him. Brant, however, soon moved to withdraw, citing

Ductan’s uncooperativeness, refusal to sign a discovery waiver

3
as a precondition for the government providing written

discovery, and lack of communication.

At the hearing on Brant’s motion, the magistrate judge

confirmed that Ductan no longer wanted Brant to represent him,

and asked Ductan whether he wished to hire another lawyer or

have the court appoint counsel. Ductan complained that it was

difficult to find counsel while incarcerated, but insisted that

he “d[id] not want to consent to having a lawyer appointed.”

J.A. 28. Ductan also told the judge that he did not want to

represent himself.

After the judge explained that Ductan’s options were to

represent himself, hire new counsel, or ask the court to appoint

counsel, Ductan began making nonsense statements, requesting “a

form 226 form” and informing the court that he was “a secured

party creditor.” J.A. 29. The judge then instructed the

prosecutor to summarize the charges and maximum penalties, but

after the prosecutor finished, Ductan stated, “I do not

understand what he is saying. I’m only here for settlement of

the account.” J.A. 33. The judge twice asked Ductan whether he

was “under the influence of any alcohol or drugs,” but Ductan

gave nonsense responses. J.A. 34. The judge then told Ductan

that he would not appoint a lawyer because “by making nonsense

statements,” Ductan could “be found to have waived [his] right

4
to counsel,” although he directed the Federal Defender to

appoint standby counsel. J.A. 35.

Following the hearing, the magistrate judge issued an order

granting Brant’s motion to withdraw and summarizing the

proceedings. United States v. Ductan, No. 3:04-CR-252 (W.D.N.C.

Oct. 5, 2012), ECF No. 142. Although the judge noted that

Ductan had not “knowingly and intelligently waived his right to

counsel,” he held that as a result of Ductan’s frivolous

arguments and evasive responses, Ductan had “forfeited his right

to counsel in this matter.” Id. at 2.

A month later, Ductan’s standby counsel Randy Lee moved to

withdraw. According to Lee, Ductan did not want Lee “to

represent him in any capacity” and also refused to sign a

discovery agreement. J.A. 42. Lee explained that he was unable

to adequately prepare for the case and would not be ready if

asked to assist at trial. Lee said that he would accept

appointment as full-time counsel, but was not comfortable

continuing as standby counsel.

At the hearing on Lee’s motion to withdraw, Ductan

complained that he did “not feel confident that [Lee] would

represent [him] adequately” because Lee had spent little time

meeting with him. The magistrate judge responded that Lee was

merely standby counsel and was not defending Ductan, because

Ductan had “waived [his] right to having an appointed attorney”

5
at the previous hearing and was therefore “representing

[him]self.” J.A. 49. Ductan replied that he did not want Lee

to remain in the case in any capacity, explaining that he was

“seeking private counsel,” J.A. 50, and “d[id] not want to

contract with the government at all, as far as counsel’s

concerned,” J.A. 57.

The magistrate judge denied Lee’s motion to withdraw. The

judge explained that while he understood the difficult position

Lee was in, Lee would not have to try the case because Ductan

“by his conduct . . . had waived his right to appointed

counsel[, s]o his option is to hire a lawyer or represent

himself.” J.A. 53. Before concluding the hearing, the judge

briefly explained to Ductan the risks of proceeding pro se,

emphasizing that Ductan was on his own unless he either “hire[d]

an attorney” or “allow[ed] Mr. Lee to help.” J.A. 59.

C.

Ductan thereafter appeared before the district court for

calendar call. The court advised Ductan on the advantages of

professional representation, noting that although Ductan had

waived his right to appointed counsel, he was free to hire

counsel. In response, Ductan said that he was a “secured party

creditor” and was seeking private counsel. Supp. J.A. 41.

Ductan also stressed that he “could not properly represent

[him]self.” Id.

6
 Jury selection began the following day, with Ductan

representing himself and Lee present as standby counsel. Ductan

told the district court that the “defense is not prepared right

now to move forward with any proceedings.” J.A. 64. Ductan

also repeatedly interrupted as the court attempted to call the

venire, demanding to know whether he was “in a contract court or

a criminal court,” asserting that he was “the beneficiary of a

trust,” and making other nonsense statements. J.A. 65–66. When

Ductan continued to speak after the court directed him to stop

interrupting, he was held in contempt and removed from the

courtroom.

The district court directed that Ductan be placed in a

holding cell from which he could observe the proceedings

remotely. The court told the potential jurors that Ductan was

representing himself and had opted not to be present for jury

selection. Although the court had Lee introduce himself, it did

not address his role in the jury selection process. The court

then continued with voir dire, during which the government moved

to strike several jurors for cause and exercised peremptory

strikes. Lee did not move to strike any jurors or otherwise

participate, except to join the government and the court at a

brief bench conference.

After the jury was empaneled, the district court brought

Ductan back into the courtroom and told him that it “would love

7
to have [him] participate” in the trial and would purge the

contempt citation if he was willing to obey the court’s

directives. J.A. 119. Ductan responded, “I do not want to

represent myself. I would like to seek private counsel.” J.A.

120. Ductan also confirmed that he did not want Lee to assume

duties as trial counsel, at which point the district court

concluded that it “appears . . . he’s choosing self-

representation then because we’re ready to go.” J.A. 121.

However, when Lee asked Ductan if that was a fair representation

of his choice, Ductan responded, “No, it is not,” and stated

that he “d[id] not want to be represented in this format.” J.A.

122. The district court then began the trial, instructing

Ductan that he was representing himself but could seek

assistance from Lee if he wished.

D.

Ductan’s trial proceeded uneventfully. Ductan waived his

opening statement but cross-examined several of the government’s

witnesses, recalled one witness during his case, and consulted

occasionally with Lee. Ductan also gave a closing argument,

emphasizing that there was reasonable doubt and arguing his good

character to the jury (over the government’s objections). The

jury found Ductan guilty on all three counts in the indictment.

At Ductan’s request, the court appointed an attorney to

represent him at sentencing. The court imposed a within-

8
guidelines sentence of 24 months in prison for the two drug

counts, in addition to a mandatory consecutive term of 60 months

for his conviction under 18 U.S.C. § 924(c)(1), for a total

sentence of 84 months.

II.

On appeal, Ductan argues that he was denied his Sixth

Amendment right to counsel on two occasions. First, he contends

that the magistrate judge erred by finding that he forfeited his

right to counsel by his conduct, and he also maintains that he

did not effectively waive that right, either expressly or by

implication. Second, he claims the district court further

deprived him of his right to counsel by removing him from the

courtroom during jury selection without appointing counsel,

leaving him unrepresented during a critical stage of his trial.

We agree with Ductan as to his first claim, which alone is

sufficient to vacate the judgment and remand for a new trial.

A.

1.

We begin our analysis by determining the appropriate

standard of review.

Ductan did not explicitly object to the magistrate judge’s

ruling that he had forfeited his right to counsel. Although

Ductan repeated throughout the proceedings that he planned to

9
hire private counsel, did not want to represent himself, and did

“not want to waive [his] Sixth Amendment right to private

counsel,” J.A. 123, we do not find that any of those comments,

even liberally construed, constitute an objection to the

magistrate judge’s ruling. This is particularly so in light of

Ductan’s insistence that he did not want appointed counsel.

A defendant's failure to object in the district court to an

alleged error would normally bar appellate review absent plain

error. United States v. Powell, 680 F.3d 350, 358 (4th Cir.

2012). As we explain, however, the circumstances here warrant

that we consider de novo the magistrate judge’s forfeiture

finding.

2.

The proper standard of review when a defendant fails to

object to a right-to-counsel waiver 1 is a question that has

divided our sister circuits. See United States v. Stanley, 739

1
The magistrate judge found that Ductan had forfeited his
right to counsel because of his misconduct. The parties,
however, alternatively describe the question before us as one
involving waiver of the right to counsel. The concepts are, of
course, quite different. “A waiver is an intentional and
voluntary relinquishment of a known right.” United States v.
Goldberg, 67 F.3d 1092, 1099 (3d Cir. 1995). In contrast,
“forfeiture results in the loss of a right regardless of the
defendant's knowledge thereof and irrespective of whether the
defendant intended to relinquish the right.” Id. at 1100.
While we will take care to distinguish between forfeiture and
waiver when considering the parties’ contentions, we think the
standard of review is the same in either case.

10
F.3d 633, 644–45 & n.2 (11th Cir. 2014) (collecting cases and

explaining that “[a]pproaches to this question differ across,

and even within, other circuits”); United States v. McBride, 362

F.3d 360, 365–66 (6th Cir. 2004) (observing an intra-circuit

conflict but stating that other circuits “uniformly apply a de

novo standard of review”).

Our approach has varied. Most recently, we have

acknowledged the uncertainty surrounding the issue but declined

to determine the appropriate standard of review. See United

States v. McAtee, 598 F. App’x 185, 186 n.* (4th Cir. 2015);

United States v. Parker, 576 F. App’x 157, 162 (4th Cir. 2014).

However, we have also applied de novo review without

elaboration, see, e.g., United States v. Curry, 575 F. App’x

143, 145 (4th Cir. 2014); United States v. Hickson, 506 F. App’x

227, 233 (4th Cir. 2013), as well as plain error review in our

lone published decision on the issue, United States v. Bernard,

708 F.3d 583, 588 (4th Cir. 2013).

Although the facts in Bernard are reminiscent of the

circumstances of this case, they are not analogous. In Bernard,

the defendant sought to discharge his counsel and proceed pro se

despite having a history of mental illness and initially being

found incompetent to stand trial. The district court held a

hearing to consider defense counsel’s motion to withdraw and the

defendant’s competency to waive counsel and represent himself.

11
 At the time of the hearing, the defendant was represented

by counsel, who was advocating for the defendant’s ability to

represent himself. 708 F.3d at 586 (quoting defense counsel’s

argument that “since th[e] standard has been met . . . you could

find that he is competent to waive counsel”). Even after the

court found the defendant competent and granted his counsel’s

motion to withdraw, counsel remained as standby and participated

in a bench conference with the court and the government on the

subject of the defendant’s competency.

In assessing whether there was a Sixth Amendment violation,

we stated that “we look to not only the defendant, but to his

counsel, who for much of the hearing actively participated with

full representational authority.” Id. at 588 n.7. Because

counsel bore “substantial responsibility for allowing the

alleged error to pass without objection,” we concluded that “his

failure to preserve the claim of invalid waiver warrants plain

error review.” Id. (internal quotation mark omitted).

In Bernard, the court made “no decision on defense

counsel’s motion to withdraw” until “late in the hearing,” after

the court had already undertaken the competency evaluation. Id.

In contrast, the magistrate judge here granted counsel’s motion

to withdraw early in the hearing, before later finding that

Ductan forfeited his right to counsel. See J.A. 27–28. Thus,

12
at the point the judge found a forfeiture, Ductan was very much

left “to his own devices.” 708 F.3d at 588 n.7.

As the Ninth Circuit has explained, “we do not expect pro

se defendants to know the perils of self-representation, and

consequently, we cannot expect defendants to recognize that they

have not been correctly and fully advised, let alone to point

out the court’s errors.” United States v. Erskine, 355 F.3d

1161, 1166 (9th Cir. 2004). In Erskine, the defendant

challenged the validity of his waiver of counsel after failing

to object to the district court’s Faretta inquiry below. In

contrast to Bernard, the district court in Erskine had

determined that the defendant validly waived counsel while he

was completely unrepresented. As a result, the Ninth Circuit

held that “plain error review would be inappropriate” and

reviewed the validity of the waiver de novo. Id. at 1165–67.

We find the Ninth Circuit’s reasoning persuasive, and

conclude that its holding applies equally to cases in which a

pro se defendant fails to object to a district court’s finding

of forfeiture. We therefore review de novo the magistrate

judge’s determination that Ductan forfeited his right to

counsel.

3.

The Sixth Amendment guarantees to a criminal defendant the

right to the assistance of counsel before he can be convicted

13
and punished by a term of imprisonment. U.S. Const. amend. VI;

Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963). The right to

counsel is fundamental to our system of justice; beyond

protecting individual defendants, it is “critical to the ability

of the adversarial system to produce just results.” Strickland

v. Washington, 466 U.S. 668, 685 (1984).

Nonetheless, it is equally clear that the Sixth Amendment

also protects a defendant’s affirmative right to self-

representation. As the Court explained in Faretta v.

California, “[t]o thrust counsel upon the accused, against his

considered wish, thus violates the logic of the [Sixth]

Amendment. . . . Unless the accused has acquiesced in such

representation, the defense presented is not the defense

guaranteed him by the Constitution, for, in a very real sense,

it is not his defense.” 422 U.S. 806, 820 (1975).

We have said that the right to self-representation is

inescapably in tension with the right to counsel. This is so

because invocation of the former “poses a peculiar problem: it

requires that the defendant waive his right to counsel.” Fields

v. Murray, 49 F.3d 1024, 1028 (4th Cir. 1995) (en banc); see

also United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005)

(“Th[e right to self-representation] . . . is mutually exclusive

of the right to counsel guaranteed by the Sixth Amendment.”);

United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997)

14
(explaining that the two rights are “essentially inverse aspects

of the Sixth Amendment and thus . . . assertion of one

constitutes a de facto waiver of the other”). Recognizing this

tension, we have clarified that because access to counsel

“affects [a defendant’s] ability to assert any other rights he

may have,” Fields, 49 F.3d at 1028 (internal quotation mark

omitted), “the right to counsel is preeminent and hence, the

default position,” Singleton, 107 F.3d at 1096.

Although other courts have held that the right to counsel

may be relinquished either intentionally or unintentionally, see

United States v. Leggett, 162 F.3d 237, 249–50 (3d Cir. 1998)

(explaining that the right to counsel can be waived by a knowing

and voluntary waiver or unintentionally forfeited as a result of

“extremely serious misconduct”), we have never held that counsel

can be relinquished by means short of waiver. Consistent with

our view that representation by counsel is the “default

position,” we have instead instructed lower courts to “indulge

in every reasonable presumption” against the relinquishment of

the right to counsel. Fields, 49 F.3d at 1029 (quoting Brewer

v. Williams, 430 U.S. 387, 404 (1977)). Accordingly, an

effective assertion of the right to self-representation (and

thus a waiver of the right to counsel) requires that a defendant

“knowingly and intelligently” forgo the benefits of counsel

15
after being made aware of the dangers and disadvantages of self-

representation. Faretta, 422 U.S. at 835.

The Supreme Court has not established precise guidelines

for determining whether a waiver is knowing and intelligent. We

have held that a “searching or formal inquiry,” while required

by some of our sister circuits, 2 is not necessary. Singleton,

107 F.3d at 1097. Still, before allowing a defendant to

represent himself, a district court must find that the

defendant’s background, appreciation of the charges against him

and their potential penalties, and understanding of the

advantages and disadvantages of self-representation support the

conclusion that his waiver of counsel is knowing and

intelligent. Id. at 1098–99.

In addition to requiring that a waiver be knowing and

intelligent as a constitutional minimum, we have imposed one

other requirement. In Fields, we noted the “thin line between

improperly allowing the defendant to proceed pro se, thereby

violating his right to counsel, and improperly having the

defendant proceed with counsel, thereby violating his right to

self-representation.” 49 F.3d at 1029 (internal quotation mark

omitted). Acknowledging that “[a] skillful defendant could

2See, e.g., United States v. Jones, 452 F.3d 223, 228 & n.2
(3d Cir. 2006) (requiring a “penetrating and comprehensive
examination of all the circumstances” but acknowledging that
such an inquiry “is not required in every court”).

16
manipulate this dilemma to create reversible error,” we held

that a waiver of counsel through the election of self-

representation must be more than knowing and intelligent: it

must also be “clear[] and unequivocal[].” Id. We explained

that this requirement “greatly aids the trial court in resolving

this dilemma” by allowing the court to presume that “the

defendant should proceed with counsel absent an unmistakable

expression by the defendant that so to proceed is contrary to

his wishes.” Id. (emphasis added). 3

Since our en banc decision in Fields, we have consistently

held that as between counsel and self-representation, counsel is

the “default position” unless and until a defendant explicitly

asserts his desire to proceed pro se. See, e.g., Bernard, 708

3
Other courts have come to the same conclusion. See, e.g.,
United States v. Jones, 778 F.3d 375, 389 (1st Cir. 2015)
(“[T]he court must make certain that the defendant states his
intent to relinquish his right to counsel in unequivocal
language.”) (internal quotation marks omitted); United States v.
Campbell, 659 F.3d 607, 612 (7th Cir. 2011), vacated, remanded,
and affirmed on other grounds, 488 F. App’x 152 (7th Cir. 2012)
(“[T]he requirement that a waiver of counsel be unequivocal is
necessary lest a defendant attempt to play one constitutional
right against another.”) (internal quotation marks omitted);
United States v. Long, 597 F.3d 720, 725 (5th Cir. 2010)
(finding no valid waiver where the defendant “made a request to
fire his appointed attorney, but not a clear and unequivocal
request to represent himself”); Jones, 452 F.3d at 231
(requiring a “clear and unequivocal” selection of self-
representation in order to validly waive counsel). But see
United States v. Oreye, 263 F.3d 669, 670–71 (7th Cir. 2001)
(allowing waiver of the right to counsel by conduct in the
absence of an express waiver).

17
F.3d at 588 (“[A] person may waive the right to counsel and

proceed at trial pro se only if the waiver is (1) clear and

unequivocal, (2) knowing, intelligent, and voluntary, and (3)

timely.”); Bush, 404 F.3d at 271 (noting that invocation of the

right to self-representation, and thus waiver of the right to

counsel, must be clear and unequivocal); Singleton, 107 F.3d at

1096 (“[T]he right to counsel may be waived only expressly,

knowingly, and intelligently . . . .”). And while some courts

have found that a defendant can validly waive the right to

counsel by conduct or implication, see, e.g., King v. Bobby, 433

F.3d 483, 492 (6th Cir. 2006), Fields and its progeny preclude

such a result in our circuit, see United States v. Frazier-El,

204 F.3d 553, 558–59 (4th Cir. 2000) (explaining that because it

necessitates a waiver of counsel, selection of self-

representation must be clear and unequivocal “to protect against

an inadvertent waiver of the right to counsel” and to create a

presumption “[i]n ambiguous situations created by a defendant’s

vacillation or manipulation”).

4.

It is against this backdrop that we turn to Ductan’s first

claim. Ductan argues that the right to counsel cannot be

forfeited by misconduct, and also maintains that no waiver

occurred because he did not “clearly and unequivocally” elect to

proceed pro se and waive counsel as required under our case law.

18
Ductan also contends that even if he had expressed a desire to

represent himself, his waiver was not knowing and intelligent

because the magistrate judge did not complete the inquiry

required by Faretta.

Ductan stresses that at no point in the initial hearing

before the magistrate judge did he clearly and unequivocally

elect to represent himself or waive his right to counsel.

Indeed, throughout the proceedings, Ductan never wavered in his

desire to retain counsel, while complaining that it was “almost

impossible to do that being incarcerated.” J.A. 28. When the

magistrate judge asked Ductan if he wanted to represent himself,

he responded “No.” J.A. 28. 4 But Ductan also adamantly refused

appointed counsel, repeatedly stating that he did “not want an

attorney appointed to [him],” J.A. 30, and did “not want to

contract with the government at all, as far as counsel’s

concerned,” J.A. 57.

4 Ductan remained steadfast in his opposition to proceeding
pro se. At a later docket call, Ductan stated that he was
seeking private counsel and added that he “could not properly
represent [him]self” and that “it would be impossible for me to
prepare a case tomorrow.” Supp. J.A. 41. On the first day of
trial, Ductan continued to object to proceeding pro se, telling
the district court that the “defense is not prepared right now
to move forward with any proceedings.” J.A. 64. After being
returned to the courtroom following jury selection, he
reiterated, “I do not want to represent myself. I would like to
seek private counsel,” J.A. 120, “I do not want to waive my
Sixth Amendment right to private counsel,” J.A. 123, and he
responded “No” when asked if he was choosing self-
representation, J.A. 122.

19
 Based on this record, the magistrate judge correctly

determined that Ductan had “not . . . knowingly and

intentionally waived his right to counsel,” citing Frazier-El

for the proposition that an assertion of the right to self-

representation must be “(1) clear and unequivocal; (2) knowing,

intelligent and voluntary; and (3) timely.” Ductan, No. 3:04-

CR-252, ECF No. 142, at 2 (emphasis added). But the judge

concluded nonetheless that Ductan had “forfeited his right to

counsel in this matter” by his “frivolous arguments and answers

to questions.” Id. We hold that this was error.

While some circuits have held that a defendant can forfeit

the right to counsel, see, e.g., United States v. McLeod, 53

F.3d 322, 325–26 (11th Cir. 1995), we have never endorsed that

notion. Moreover, at least four Justices of the Supreme Court

have concluded that while “[s]ome rights may be forfeited by

means short of waiver . . . others may not,” and identified the

right to counsel as one that can only be relinquished

intentionally. Freytag v. Comm’r of Internal Revenue, 501 U.S.

868, 894 n.2 (1991) (Scalia, J., concurring) (citing Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)). And even those circuits

holding that a defendant may forfeit his right to counsel have

done so only in truly egregious circumstances. See, e.g.,

McLeod, 53 F.3d at 325–26 (finding that defendant forfeited the

right to counsel by threatening to harm his counsel, verbally

20
abusing him, and ordering him to engage in unethical conduct).

This is not such a case.

To be sure, Ductan was uncooperative when discussing the

issue of counsel with the court. By resisting both appointed

counsel and self-representation, he essentially rejected all of

his options, putting the magistrate judge in an undeniably

difficult position. However, despite Ductan’s obstructive

behavior, he never engaged in the type of egregious conduct that

other courts have concluded justifies a finding of forfeiture.

See, e.g., United States v. Thompson, 335 F.3d 782, 785 (8th

Cir. 2003) (death threat); Leggett, 162 F.3d at 250 (unprovoked

physical assault).

Nor do the facts support a finding that Ductan waived his

right to counsel. In Frazier-El, we considered a situation in

which the defendant sought to fire his court-appointed attorney

because the attorney refused to make a frivolous argument.

Frazier-El also said that he would continue to request the

removal of any attorney who so refused, and even stated that he

would prefer to represent himself in order to make the argument.

204 F.3d at 557. The district court denied Frazier-El’s request

to fire his attorney and proceed pro se, and we affirmed.

Confirming that invocation of the right of self-

representation must be “clear and unequivocal,” we found that

the district court acted appropriately by forcing the defendant

21
to continue with appointed counsel when he “vacillat[ed]”

between a desire for counsel and a desire for self-

representation. 204 F.3d at 559–60. Although Ductan’s case is

arguably stronger than Frazier-El’s because Ductan never

expressed any desire to proceed pro se, Frazier-El counsels that

a court must insist on appointed counsel against a defendant’s

wishes in the absence of an unequivocal request to proceed pro

se, or when the basis for the defendant’s objection to counsel

is frivolous.

The government contends that Ductan’s waiver of counsel was

constitutionally adequate, citing to our decision in United

States v. Gallop, 838 F.2d 105 (4th Cir. 1988). In Gallop, the

defendant sought to fire his court-appointed lawyer but also

objected to proceeding pro se. When the district court found

that there was no cause to replace the defendant’s appointed

lawyer, the defendant indicated that he had “no choice” but to

fire his lawyer and represent himself. Id. at 107.

We found that the defendant validly waived counsel because

“[a] refusal without good cause to proceed with able appointed

counsel is a voluntary waiver.” Id. at 109. The government

seizes upon this holding to conclude that “a defendant’s

unjustified, dilatory tactics can result in an implied waiver

even absent an express assertion of the right to self-

representation.” Appellee’s Br. at 30.

22
 Gallop, however, predated the “clear and unequivocal”

requirement that the en banc court adopted in Fields. Thus,

although we have continued to rely on Gallop for its approach to

Faretta inquiries and the determination whether a waiver is

“intelligent, knowing, and voluntary,” it does not provide

correct guidance on whether a waiver of counsel is clear and

unequivocal.

In this case, there was no clear and unequivocal waiver of

counsel or election of self-representation. Because neither

Gallop nor the out-of-circuit cases cited by the government

account for this post-Fields requirement, we do not find them

controlling or persuasive here, except as they relate to the

issue of whether Ductan’s waiver was intelligent, knowing, and

voluntary. 5

In any event, even if Ductan had clearly and unequivocally

elected self-representation, no valid waiver of counsel occurred

because the magistrate judge did not complete the Faretta

5 For the proposition that counsel can be waived by
implication, the government also cites United States v. Davis,
958 F.2d 47, 49 (4th Cir. 1992). Like Gallop, Davis predates
Fields, but is also readily distinguishable. In Davis, the
defendant refused to allow the court to inquire into his
financial status, preventing the court from determining whether
he was even eligible for court-appointed counsel. Because the
defendant bears the burden of proving that he lacks the means to
retain counsel, id. at 48, Davis has no bearing on this case, in
which there is no debate that Ductan is indigent and eligible
for appointed counsel.

23
inquiry. Although the judge attempted to conduct such an

inquiry, directing the government to summarize the charges and

potential penalties for Ductan and asking whether Ductan was

under the influence of drugs or alcohol, Ductan’s nonsense

responses prevented him from fully exploring Ductan’s

understanding of the proceedings and the dangers of proceeding

pro se. Thus, as the magistrate judge acknowledged, Ductan did

“not . . . knowingly and intentionally waive[] his right to

counsel.” Ductan, No. 3:04-CR-252, ECF No. 142, at 2. In these

circumstances, our default rule required that counsel be

appointed for Ductan until he either effected a proper waiver or

retained a lawyer.

In sum, the magistrate judge erred in finding that Ductan

forfeited his right to counsel, and we decline to find an

effective waiver of that right on this record. Because the

magistrate judge’s error is not subject to harmless error

review, see United States v. Gonzalez-Lopez, 548 U.S. 140, 148–

50 (2006) (holding that denial of counsel is a “structural

error . . . bear[ing] directly on the framework within which the

trial proceeds”), we vacate Ductan’s conviction and remand for a

new trial.

VACATED AND REMANDED

24
DIAZ, Circuit Judge, concurring:

The court correctly grants Ductan a new trial based on his

first claim of error. I write separately to explain why, in my

view, what occurred during jury selection provides an

independent ground for that relief. Ductan asserts that the

district court erred by removing him from the courtroom for his

disruptive behavior while he was proceeding pro se and selecting

a jury in his absence. He argues that by not appointing counsel

in his absence, the court left him unrepresented during a

critical stage of his trial. I believe he is correct.

I.

Because Ductan failed to make a specific objection to the

district court’s action, I review his claim for plain error. 1

See United States v. Ramirez-Castillo, 748 F.3d 205, 215 n.7

(4th Cir. 2014) (holding that forfeited errors are subject to

plain error review in this circuit, even when those errors are

1Ductan says that he lodged a proper objection when, while
being removed from the courtroom, he shouted, “Does anybody have
any claims against me? I object to this whole proceeding.” J.A.
67. We, however, have consistently held that general objections
are insufficient to preserve claims for appeal. See, e.g.,
United States v. Benton, 523 F.3d 424, 428 (4th Cir. 2008).
Because Ductan’s statement that he “object[ed] to this whole
proceeding” was typical of his consistent viewpoint that the
court had no jurisdiction over him, it did not “reasonably . . .
alert the district court of the true ground for the objection,”
id., and thus was not sufficiently specific to preserve his
claim.

25
structural). Thus, to warrant relief, Ductan must demonstrate

that there was error, the error was plain, and it affected his

substantial rights. United States v. Slade, 631 F.3d 185, 190

(4th Cir. 2011). An error is plain when it is “clear or

obvious,” meaning that “the settled law of the Supreme Court or

this [Court] establishes that an error has occurred,” or in rare

cases, when authority from other circuits is unanimous. United

States v. Carthorne, 726 F.3d 503, 516 & n.14 (4th Cir. 2013).

Even then, we will only notice the error if it affects the

“fairness, integrity, or public reputation of judicial

proceedings.” Slade, 631 F.3d at 192 (quoting United States v.

Olano, 507 U.S. 725, 736 (1993)). I conclude that Ductan has

met his burden.

II.

I begin by emphasizing that the district court acted

appropriately by removing Ductan from the courtroom. Although

the Supreme Court has held that removal of a defendant from his

own trial is “not pleasant” and even “[d]eplorable,” Illinois v.

Allen, 397 U.S. 337, 346–47 (1970), Ductan was disruptive,

refused to obey the court’s instructions, and repeatedly

interrupted the court as it attempted to begin jury selection.

Under those circumstances, the court had discretion to address

Ductan’s “disruptive, contumacious, [and] stubbornly defiant”

26
conduct by removing him from the courtroom. Id. at 343. Ductan

does not contend otherwise, but he does say that the district

court’s failure to appoint counsel in his absence constitutes

plain error. I agree.

It is well established that jury selection is a “critical

stage” of a criminal trial to which the right to counsel

attaches. Gomez v. United States, 490 U.S. 858, 873 (1989).

Thus, the absence of counsel during jury selection constitutes a

“breakdown in the adversarial process,” James v. Harrison, 389

F.3d 450, 456 (4th Cir. 2004), and we have made clear that

“[t]he presumption that counsel’s presence is essential requires

us to conclude that a trial is unfair if the accused is denied

counsel” at jury selection, United States v. Hanno, 21 F.3d 42,

47 (4th Cir. 1994) (quoting United States v. Cronic, 466 U.S.

648, 659 (1984)). This fundamental principle applies with equal

force when a defendant represents himself. Cf. Mayberry v.

Pennsylvania, 400 U.S. 455, 468 (1971) (Burger, C.J.,

concurring) (explaining that “the presence and participation of

counsel, even when opposed by the accused,” protects a

defendant’s Sixth Amendment rights “when the accused has refused

legal assistance and then [brings] about his own removal from

the proceedings”).

Of course, the right to self-representation is “not

absolute.” Fields, 49 F.3d at 1035. Thus, a pro se defendant

27
who is disruptive in the courtroom may forfeit his right to

self-representation. Faretta, 422 U.S. at 834 n.46 (“[T]he

trial judge may terminate self-representation by a defendant who

deliberately engages in serious and obstructionist

misconduct.”). In these cases, the proper course of action is

to revoke the defendant’s right to self-representation and

appoint counsel. See, e.g., United States v. Mack, 362 F.3d

597, 601 (9th Cir. 2004) (“A defendant does not forfeit his

right to representation at trial when he acts out. He merely

forfeits his right to represent himself in the proceeding.”);

United States v. Pina, 844 F.2d 1, 15 (1st Cir. 1988)

(suggesting that a trial judge “employ his or her wisdom to

appoint standby counsel” to represent a defendant who is removed

or discharges counsel); see also United States v. West, 877 F.2d

281, 287 (4th Cir. 1989) (affirming the defendant’s conviction

where the district court found him incompetent to represent

himself and immediately appointed his standby counsel to replace

him). 2

2 The parties cite to two post-conviction cases that
affirmed convictions after a pro se defendant was removed from
the courtroom and not replaced by appointed counsel, but both
explicitly did so because of the highly deferential standard of
review in 28 U.S.C. § 2254 habeas cases. See Thomas v. Carroll,
581 F.3d 118, 127 (3d Cir. 2009) (“If this appeal had come
before us on a direct appeal from a federal court presented with
a defendant who waived his right to counsel and then absented
himself from the courtroom, we might hold differently.”); Davis
(Continued)
28
 When the district court held Ductan in contempt and removed

him from the courtroom, Ductan was representing himself. He was

placed in a holding cell from which he could see and hear the

proceedings, but could not participate in any way. Moreover,

nothing in the record supports the government’s assertion that

standby counsel Lee was thereafter “representing [Ductan].”

Appellee’s Br. at 43. Although Lee was in the courtroom and

present for a brief bench conference, he did not move to strike

any jurors, object to any of the government’s strikes, or

otherwise participate in jury selection. Nor did the district

court appoint Lee as counsel, or otherwise indicate that Lee was

in any way authorized to act on Ductan’s behalf. See United

States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991) (explaining

the “limited role” of standby counsel and clarifying that

“standby counsel is not counsel at all, at least not as that

term is used in the Sixth Amendment”).

v. Grant, 532 F.3d 132, 144 (2d Cir. 2008) (“[I]f we were
reviewing the issue on a blank slate, we might be inclined to
conclude that . . . the Sixth Amendment requires that a
defendant who is involuntarily removed from the courtroom must
be provided with replacement counsel during his absence.”).
The government argues that our decision in James v.
Harrison, 389 F.3d 450 (4th Cir. 2004) reaches a similar
conclusion, but I find the deprivation in James—in which the
defendant was represented by co-defendant’s counsel instead of
his own during voir dire and jury selection—significantly less
severe and thus distinguishable from what happened here.

29
 Because Ductan was entirely unrepresented during jury

selection, conducting this critical stage of his trial in his

absence and without appointed counsel was plain error. The

principle enunciated by the Supreme Court in Gomez and followed

by this court in Hanno and James makes it “clear” and “obvious”

that complete denial of counsel during jury selection is a

constitutional violation, and no Supreme Court or Fourth Circuit

case suggests that this general rule does not apply to

defendants proceeding pro se. To the contrary, the weight of

the cases makes it plain that when a pro se defendant is

involuntarily removed from the courtroom, no “critical stage” of

the trial may be conducted in his absence without the

appointment of counsel.

I also conclude that the other prongs of the Olano test are

satisfied. The absence of counsel during jury selection

constitutes a “breakdown in the adversarial process” that

necessarily affects a defendant’s substantial rights. James,

389 F.3d at 456. Moreover, because errors that result in a

“breakdown of the adversarial process” are precisely the types

of deprivations that affect the fairness and integrity of

judicial proceedings, the error provides an independent ground

for vacating Ductan’s conviction and remanding for a new trial.

30
 III.

I do not take lightly the predicament that district courts

face when confronted by a contumacious criminal defendant. But

in these admittedly challenging situations, a court may not, as

the first choice, find forfeiture or waiver of the right to

counsel on the basis of a defendant’s dilatory conduct or

otherwise by implication or process of elimination. Instead, as

the court reasserts today, “[i]n ambiguous situations created by

a defendant’s vacillation or manipulation, we must ascribe a

constitutional primacy to the right to counsel because this

right serves both the individual and the collective good, as

opposed to only the individual interests served by protecting

the right of self-representation.” Frazier-El, 204 F.3d at 559

(internal quotation mark omitted).

Of course, when a defendant does assert his right to self-

representation, that right “is not a license to abuse the

dignity of the courtroom.” Faretta, 422 U.S. at 834 n.46. When

a pro se defendant acts out or engages in serious misconduct

such that his choice to represent himself cannot be reconciled

with the need to maintain the efficiency and order of the

proceedings, the district court enjoys ample discretion to

terminate that self-representation and appoint counsel. But in

no case may a critical stage of a defendant’s trial take place

after he is removed, in the absence of any representation.

31
 I therefore join the court’s decision to vacate Ductan’s

conviction and remand for a new trial.

32