United States v. Peppers

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit

8-21-2002

USA v. Peppers
Precedential or Non-Precedential: Precedential

Docket No. 01-2348

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PRECEDENTIAL

Filed August 21, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2348

UNITED STATES OF AMERICA

v.

RONNIE PEPPERS,
Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 00-cr-00105)
District Judge: Honorable Sylvia H. Rambo

Argued: March 4, 2002

Before: ALITO, RENDELL, and HALL,*
Circuit Judges

(Filed: August 21, 2002)

Daniel I. Siegel, Esq. [ARGUED]
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant

_________________________________________________________________

* Honorable Cynthia Holcomb Hall, Senior Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.

Theodore B. Smith, III, Esq.
[ARGUED]
Office of United States Attorney
Federal Building, Suite 220
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

On November 28, 2000, a federal jury found Ronnie
Peppers guilty of the first degree murder of a drug dealer,
Jorge ("Cuban George") Drake, conspiracy to distribute and
possess with the intent to distribute controlled substances,
use of a firearm during and in relation to a drug trafficking
crime, and being a felon in possession of a firearm. Before
us, Peppers raises three allegations of error: that the
prosecution failed to adduce sufficient proof of all of the
elements of the alleged crimes, that the District Court erred
in not allowing Peppers to proceed pro se after he requested
to do so, and that the District Court erred in its
determination that the victim’s identification of his
assailant was not admissible as a dying declaration. For the
reasons set forth below, we find Peppers’ challenge to the
sufficiency of the evidence to be without merit. We do,
however, agree with Peppers that the District Court erred in
its handling of his request to proceed pro se . We will
accordingly remand for a new trial. Additionally, we find
that the District Court had the discretion to admit or
preclude the proffered statement of identification, and,
while perhaps it could have expressed the basis for its
ruling more clearly, we do not find that it abused its
discretion in refusing to admit the out of court statement.

I. Statement of Facts

Lisa Watson lived with her mother in Harrisburg. Her
brother, John, lived close by. On August 13, 1997, at

2

approximately 2:00 a.m., Jorge Drake was taking Lisa
Watson home, and had stopped the car near her residence.
A man wearing a black ski mask and dark clothing
approached the driver’s window and shot Drake in the head
at close range, causing blood and brain matter to spatter
upon Lisa Watson, who was sitting in the front passenger
seat. According to eyewitnesses, the shooter reached into
the car and removed something, yelled to Lisa Watson to
get out, and then ran away. Drake did not die immediately.
In fact, later that night, though heavily sedated and
partially paralyzed, he responded to an inquiry as to who
shot him with the single word, "Jun."1 When subsequently
asked by police who Jun was, Drake stated that he was
"his boy," but refused to provide further details. Drake’s ex-
wife told police that, on the day after he was shot, Drake
told her that John Watson had shot him. Another person
who visited Drake in the hospital also told police that Drake
had said "Juney and John" when asked who shot him.2
Although it appeared that Drake might recover, after being
transferred to a rehabilitation facility he died from his
injuries on September 10, 1997. Peppers was charged in a
seventeen count indictment, and he pled not guilty to the
offenses charged. On October 20, 2000, Peppers wrote to
the District Court, requesting permission to file a pro se
interlocutory appeal and to represent himself. He also
requested a hearing to address his requests. The District
Court responded by letter on October 25, 2000,3 stating
only:

Please be advised that your correspondence to me
dated October 20, 2000, has been forwarded to your
counsel of record. I do not entertain motions, or
requests that could be deemed motions, from litigants
who are represented by counsel.
_________________________________________________________________
1. Counsel has informed us that "Jun" is pronounced "June."

2. It is not clear from the record whether Drake said "Juney" and "John"
or "Juney and John." For the purposes of our analysis the distinction is
immaterial.

3. Although the letter is dated October 25, 2000, it was docketed
September 24, 2001.

3

On November 2, 2000, Peppers was arraigned on the
Second Superseding Indictment, and a hearing was held on
Motions in Limine by the government to exclude Drake’s
statements identifying "Jun" as the person who shot him.
During the course of that hearing, the government
represented that it had been unable to locate Drake’s ex-
wife, Josephine Williams, one of the persons to whom
Drake had identified the shooter. Shortly thereafter,
Peppers’ counsel indicated that Peppers desired to address
the Court. The following exchange took place.

Mr. Welch: Mr. Peppers has asked that he be allowed
to address the Court. As Your Honor is aware, he sent
a letter to the Court asking to be able to proceed pro
se. I have no idea what he wants to speak to right now,
Your Honor.

The Court: Go ahead, Mr. Peppers.

Mr. Peppers (misidentified in the transcript as Mr.
Welch): I just wanted to speak not to the letter, but
with reference to some of the witnesses. I wanted to
speak in reference to Josephine Williams and some
other witnesses that they are looking for.

On November 6, 2000, just before jury selection was to
begin, Peppers orally requested to proceed pro se. The
District Court proceeded with jury selection and then
conducted a colloquy with Peppers. On November 15, the
District Court issued a written order denying Peppers’ oral
request. On November 16, the District Court granted the
government’s motion in limine to exclude Drake’s
statements. On November 20, trial began.

The witnesses at trial included -- among others-- Lisa
Watson, the two persons who were with Peppers the night
of the murder, one of whom claimed to be his lookout,4 and
two neighbors who were eyewitnesses to the shooting. The
identification testimony was not entirely consistent.
Testimony was also presented that Drake had been a drug
dealer who dealt in "ass kicker" heroin, and that Peppers
_________________________________________________________________

4. After the preliminary hearing and prior to trial, Waters, the person
claiming to be his lookout, died. The preliminary hearing testimony was
read into the record at trial.
 4

was also a drug dealer, dealing primarily in crack cocaine.
The thrust of Peppers’ defense was that, while he was in
the vicinity of the shooting at the time in question, he did
not commit the murder. Peppers was convicted on all
counts, and was sentenced to life imprisonment plus five
years. He filed a timely appeal.

II. Statement of Jurisdiction

The District Court had jurisdiction pursuant to 18 U.S.C.
S 3231. Because Peppers is appealing from a final judgment
of conviction, we have jurisdiction pursuant to 28 U.S.C.
S 1291.

III. Peppers’ Claims on Appeal

A. Sufficiency of the Evidence as to Each Element of the
Crime

1. Standard of Review

We apply a "particularly deferential" standard of review to
a challenge to the sufficiency of evidence supporting a jury
verdict. United States v. Cothran, 286 F.3d 173, 175 (3d
Cir. 2002) (quoting United States v. Dent, 149 F.3d 180, 187
(3d Cir. 1998)). If "any rational juror" could have found the
challenged elements beyond a reasonable doubt, viewing
the evidence in the manner that is most favorable to the
government, neither reweighing evidence, nor making an
independent determination as to witnesses’ credibility, we
will sustain the verdict. Id. Further, Peppers concedes that
he did not preserve an objection to the sufficiency of the
evidence. We will therefore examine the record only for
plain error. United States v. Wolfe, 245 F.3d 257, 260-61
(3d Cir. 2001) (citing United States v. Turcks , 41 F.3d 893,
898 (3d Cir. 1994)). Thus, Peppers must establish that the
error prejudiced the jury’s verdict, and even if it did, we
may -- but are not mandated -- to correct the error.
Turcks, 41 F.3d at 897. In determining whether to correct
the error, we consider the impact of the error on the
"fairness, integrity or public reputation of judicial
proceedings." Id. We do not need to go so far here, however,
for we find that there is evidence -- though not

5

overwhelming or entirely consistent -- from which the
jurors could have found each element of the challenged
offense.

2. Discussion

The government’s charge that Peppers violated S 924(j)
(Count I of the Second Superseding Indictment) alleged that
he
 did intentionally and knowingly unlawfully cause the
death of Jorge Drake through the use of a firearm that
the defendant, Ronnie Peppers, used and carried
during and in relation to a drug trafficking crime for
which he may be prosecuted in a court of the United
States, that is conspiracy to distribute and possess
with the intent to distribute controlled substances.

Peppers now claims that even if the evidence at trial
permitted the jury to find that Peppers shot and robbed
Drake, there was no evidence that the killing was in any
way related to a conspiracy to distribute or to possess with
the intent to distribute controlled substances. There was
abundant testimony in the record that Peppers was a drug
dealer.5 But Peppers argues that the government’s strongest
evidence that he ever conspired with someone to distribute
controlled substances related to events that took place after
Drake had died, namely, a purported agreement between
Peppers and David Miller to distribute crack cocaine to a
person in Lancaster in November 1997. There was no
testimony presented to link Miller to Drake. However, Miller
testified that Peppers had provided him with substances for
distribution over the course of six months, even though the
only testimony about an express agreement between the
two to distribute controlled substances occurred in
November 1997. We have little difficulty concluding that the
jury could infer from Miller’s testimony that an agreement
to distribute with Miller had been in effect for some time
prior to Drake’s death. Further, and perhaps more
importantly, there was evidence directly related to a
_________________________________________________________________

5. For example, Detective Heffner testified at trial that during an
interview with Peppers, Peppers had stated "that he was selling drugs
during this time, that he was selling a lot of drugs."

6

conspiracy with Waters, the lookout during Drake’s
shooting, to distribute controlled substances on the night
in question. Waters testified at a preliminary hearing prior
to his death, so the preliminary hearing testimony was read
into the record at trial. He testified that he and Peppers had
seen Drake on the afternoon of Drake’s death, and Peppers
had arranged for Waters to act as lookout while Peppers
robbed Drake. On cross-examination, Waters was asked
what Peppers said to him specifically. He replied,"I’m going
to do a stick-up, watch my back, you get half the money
and the drugs." Also on cross-examination, Waters testified
that Peppers was going to "hit" Drake that night, and that
"hit means rob." When asked if details were discussed,
Waters replied: "Just rob him, take his drugs." In his direct
testimony, Waters stated that after the murder, Peppers
gave him "three bags of crack." On cross-examination, the
following exchange took place:

Q All you got out of it was some crack cocaine?

A Yeah.
 Q Did you see that crack cocaine?

A I tricked with it.6

Q How much was it worth?

A $60.

Q Is that all you got out of this?

A Yeah.

Q So a man was killed and all you got out of it was
$60?
_________________________________________________________________

6. At trial, the attorneys held a conversation at sidebar that reflected two
different understandings of the term "tricked" in Waters’ testimony.
Defense counsel indicated that he had interpreted the phrase as
referring to Waters’ attempt to "solicit the affections" of the young
woman who was in the car with Peppers and Waters. The prosecution
stated that he would "clarify this through Detective Heffner. When
Michael Waters referred to tricking, my understanding is he was
referring to doing drugs with somebody as opposed to being involved in
some sort of amorous situation." The meaning of"tricking" was not
clarified in Heffner’s subsequent testimony.

7

A Yes, sir.

The two neighborhood eyewitnesses both testified that
they saw the shooter reach into the car and remove
something. This testimony would clearly support a finding
that one of the purposes of the robbery was to take drugs,
that Peppers had promised Waters that he would share the
proceeds from the robbery with him, and that Peppers had
taken drugs from Drake, had given part of those drugs to
Waters, and Waters had in turn sold those drugs for $60.
Thus, we find that any rational juror could have found that
Peppers caused Drake’s death "intentionally and knowingly
unlawfully . . . through the use of a firearm that[he] used
and carried during and in relation to a drug trafficking
crime for which he may be prosecuted in a court of the
United States, that is conspiracy to distribute and possess
with the intent to distribute controlled substances."
Accordingly, Peppers’ challenge to the sufficiency of the
evidence is without merit.

B. Should Peppers Have Been Allowed to Proceed pro se?

1. Standard of Review

As the issue is whether there was a knowing and
intelligent waiver, the legal conclusion as to whether the
record so indicates is subject to plenary review. United
States v. Stubbs, 281 F.3d 109, 113 n.2 (3d Cir. 2002)
(citing Virgin Islands v. Charles, 72 F.3d 401, 404 (3d Cir.
1995)). As we recognized in Charles, when our review is as
to facts found by the Court, we employ clearly erroneous
review. 72 F.3d at 404 (citing Miller v. Fenton , 474 U.S.
104, 112 (1985)). The right of a defendant to represent
himself is structural; as such, "its denial is not amenable to
‘harmless error’ analysis. The right is either respected or
denied; its deprivation cannot be harmless." McKaskle v.
Wiggins, 465 U.S. 168, 177 n.8 (1984).

2. Discussion

Peppers claims that he raised the issue of proceeding pro
se three times: on October 20, 2000, in his letter to the
court; on November 6, 2000, just prior to jury selection;

8

and in his post-trial motions. In his October 20 letter,
Peppers stated:7

(1) After numerous unsuccessful attempts to get my
attorney, Allen Welch, to have client/attorney
consultation meetings with me, so that we can prepare
for trial and have, if not, a effective defense, then at
least an adequate defense. Mr. Welch, however, did
finally meet with me on the above mentioned date,
which is hardly adequate to prepare for trial which
commence in two weeks, November 6, 2000.

(2) Defendant and counsel have numerous conflicts
of interest, from unfiled requested Pre-Trial motions,
motions to the court for release of evidence that is in
the custody of the government for forensic testing,
requested exhibit’s for trial, to counsel’s refusal to seek
permission from the court to file a interlocutory appeal
of the courts ruling.

(3) Counsel failing to keep defendant informed of
the status of his case so that defendant can make
intelligent decisions concerning general strategy, and
informed decisions regarding the representation.

(4) Counsel failing to inform defendant of any
motions submitted to the court in defendants behalf
and/or consult with defendant prior to the filing of Pre-
Trial motions.

(5) Counsel failing to submit requested Pre-Trial
motions in defendants behalf.

(6) So defendant can locate witness’ where counsel,
thus far has made no effort to locate/interview defense
witness’ that are on the defense witness list that was
supplied to counsel by defendant.

Finally, defendant request that the court conduct a
hearing consistent with this correspondence, permit
defendant to file a Pro Se, interlocutory appeal, and/or
permit defendant to represent himself.
 Your Honor, I believe that for the foregoing reasons
_________________________________________________________________

7. The text has been replicated precisely as it appeared in the original.

9

that it would not be in the interest of justice to conduct
court when such issue’s are before the court, and when
counsels competence is in question.

(Emphasis added).

The Court responded to Pepper’s letter by forwarding it to
his counsel, and writing to Peppers, informing him that it
would not entertain "motions, or requests that could be
deemed motions from litigants who are represented by
counsel." On November 2, Peppers’ counsel -- but not
Peppers himself -- raised the issue of Peppers’ proceeding
pro se. Through his counsel, Peppers reiterated his desire
to proceed pro se on November 6, 2000, just prior to jury
selection. The following interchange took place at sidebar.

Mr. Welch: Mr. Peppers just this instant came in and
sat down beside me and said he wants to represent
himself.

The Court: No, he is not going to.

Mr. Welch: I understand.

The Court: Tell him he can raise the matter again
after I have finished jury selection. I have another one
after this. I don’t want to do it in front of the panel. I
need to put a colloquy on the record.

Mr. Welch: I understand.

After dismissing prospective jurors for lunch, the following
colloquy took place.

The Court: Mr. Peppers, your counsel indicated that
you told him that you preferred to proceed in this
proceeding pro se. That is without counsel. Do you still
wish to advise the Court as to whether this is your
position?

The Defendant: Yes, it is, Your Honor.

The Court: Mr. Peppers, you have some very, very
serious charges against you in this matter. You have
had no experience in doing this before. Conspiracy is a
complicated matter. So is the killing of an individual in
the course of a drug transaction.

10
 You also have a lot of witnesses that the government
needs to obtain on your behalf. He is out there able to
do that. You are confined. You will have every
opportunity to convey your wishes to Mr. Welch, to
present questions to him to present to the jury.

You may place on the record your request. Do you
want to put it on the record now?

The Defendant: To represent myself?

The Court: Yes.

The Defendant: Yes, I would like to do that.

The Court: Put the microphone in front of you,
please. I need to know why.

The Defendant: Why?

The Court: Yes.

The Defendant: Well, a lot of the details with a lot of
the pretrial issues, I felt didn’t get done. And I felt that
those areas were neglected. Therefore, I am not sure
about my defense being neglected.

The Court: What in this case has been neglected, and
how do you presume you will be able to rectify it?

The Defendant: Well, I feel that I can best serve my
defense by me questioning the witnesses. I don’t
believe that Mr. Welch knows what type of information
to cross-examine to elicit from these witnesses.

The Court: Why is that? Have you told him what to
elicit?

The Defendant: I haven’t seen --

The Court: Wait a minute. Wait a minute. Go ahead.

The Defendant: I haven’t seen my attorney. I haven’t
seen him. None of my correspondence was responded
to. I don’t know exactly where my defense lies and
exactly what strategies are going to be used for my
defense.

The Court: Well, this case is scheduled for the 20th.
There are two weeks in between. I am directing Mr.

11

Welch to sit down with you and go over the strategy
that he intends. You can certainly supply him with the
questions that you want him to address to your
witnesses.

You will have the opportunity while you are sitting
 there at trial to present -- you will have a pad and
paper. You can pass over to him questions. Of course,
it is up to him to decide whether or not the question is
relevant and whether or not it would be objected to.

Do you understand that?

At the Court’s prompting, Peppers listed other areas of
dissatisfaction with his attorney, including the failure to
test evidence, to prepare a map as a trial exhibit, to file a
pretrial motion challenging Count VII, and to file an
interlocutory appeal of the Court’s refusal to admit Drake’s
statements. The Court discussed these areas with Peppers
and his counsel, and then stated:

The Court: All right. I will take his motion under
advisement. It is not likely to be granted. I will let you
know today. Court is in recess until two o’clock.

On November 14, the District Court issued an order
denying Peppers’ "oral motion" to represent himself. After
summarizing the colloquy, the Court concluded that
because Defendant had "no legal training or expertise," and
since, at the time of the Court’s determination, there was
less than one week before trial, Peppers’ request would be
denied. The Court noted that "to allow Defendant to
represent himself is equivalent to allowing him to stand
trial with no representation at all."

On post-trial motions, Peppers again raised the issue of
the denial to proceed pro se. The Court prefaced its
statement by noting that "there was never a formal motion
presented." It further noted that since Peppers had not
pursued the issue at the November 2 hearing, "there was
no basis for the court to grant the request."

We conclude that the District Court misapprehended the
nature of its duty in response to Peppers’ initial request to
proceed pro se. Its responsibility was to assess whether the
defendant’s assertion was unequivocal, and, if so, whether

12

his waiver of his constitutional right was done voluntarily,
knowingly, and with an understanding of the ramifications
and consequences. We view this aspect of a district court’s
duty to be very important and challenging, yet one as to
which there is little guidance. We write so as to explore this
issue based on our caselaw.

a. The Nature of the Right

The right to counsel embodied within the Sixth
Amendment carries as its corollary the right to proceed pro
se. These rights are both respected within our
jurisprudential tradition, although, since a person cannot
secure the right to proceed pro se without sacrificing the
right to counsel, we have required defendants to assert the
right to proceed pro se affirmatively and unequivocally, and
we have placed on the court the burden of establishing that
the defendant who does so acts voluntarily, and that he
understands both the scope of the right sacrificed and the
restrictions and challenges that he will face. Peppers has
asserted the right to proceed pro se.

As the Supreme Court explained in the seminal case in
this area, Faretta v. California, 422 U.S. 806, 820 (1975),
the Sixth Amendment

speaks of the ‘assistance’ of counsel, and an assistant,
however expert, is still an assistant. The language and
spirit of the Sixth Amendment contemplate that
counsel, like the other defense tools guaranteed by the
Amendment, shall be an aid to a willing defendant--
not an organ of the State interposed between an
unwilling defendant and his right to defend himself
personally.

Id. "An unwanted counsel ‘represents’ the defendant only
through a tenuous and unacceptable legal fiction. 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."8
_________________________________________________________________

8. Despite this broad language, however, the District Court’s
characterization of defendant as "entitled to counsel of his own choosing"
is not completely accurate. See, e.g., Wheat v. United States, 486 U.S.

13

Id. at 821. Thus, a defendant who chooses to represent
himself must be allowed to make that choice, even if it
works "ultimately to his own detriment." Id. at 834.

In Faretta, the court had initially, though reluctantly,
allowed the defendant to proceed pro se, but reserved the
right to revoke Faretta’s "privilege" to represent himself if "it
later appeared that Faretta was unable adequately to
represent himself." Id. at 808, 811 n.4. After querying the
defendant as to the number of exceptions to the hearsay
rule and the number of and grounds for challenging jurors
for cause, the court concluded that "the ends of justice and
requirements of due process require that the prior order
permitting the defendant to represent himself in pro per
should be and is hereby revoked." Id. at 811 & n.4.

Noting that the right of self-representation "has been
protected by statute since the beginnings of our Nation,"
the Supreme Court found that the right of self-
representation was supported by both the structure of the
Sixth Amendment itself and the jurisprudence that gave
rise to it. Id. at 812, 818. It specifically rejected the trial
court’s paternalistic determination that it should ensure
that the defendant was capable of defending himself well in
order to be allowed to defend himself.

We need make no assessment of how well or poorly
 Faretta had mastered the intricacies of the hearsay
rule and the California code provisions that govern
challenges of potential jurors on voir dire. For his
technical legal knowledge, as such, was not relevant to
an assessment of his knowing exercise of the right to
defend himself.

Id. at 836.

The Court noted approvingly that Faretta’s request was
made "weeks" before trial and was clear and unequivocal,
_________________________________________________________________

153, 159 (1988) ("Thus, while the right to select and be represented by
one’s preferred attorney is comprehended by the Sixth Amendment, the
essential aim of the Amendment is to guarantee an effective advocate for
each criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers.").

14

and that it was evident from the record that Faretta was
"literate, competent, and understanding." Id at 835.

b. The Responsibility of the Court

It is the tension between the right to have counsel and
the right to represent oneself that places upon the trial
court the weighty responsibility of conducting a sufficiently
penetrating inquiry to satisfy itself that the defendant’s
waiver of counsel is knowing and understanding as well as
voluntary. The Supreme Court’s jurisprudence reflects a
long tradition of concern for persons haled into a legal
system that they cannot understand and in need of
assistance to help them navigate. See, e.g., Von Moltke v.
Gillies, 332 U.S. 708, 720 (1948). But requiring a trial court
to be particularly vigilant when a defendant waives his right
to counsel even predates Von Moltke.

This protecting duty imposes the serious and weighty
responsibility upon the trial judge of determining
whether there is an intelligent and competent waiver by
the accused. While an accused may waive the right to
counsel, whether there is a proper waiver should be
clearly determined by the trial court, and it would be
fitting and appropriate for that determination to appear
upon the record.

Johnson v. Zerbst, 304 U.S. 458, 465 (1938). Citing to
Zerbst, the Von Moltke Court stressed that the discourse
with the defendant is not "a mere procedural formality" but
that it requires a judge to

investigate as long and as thoroughly as the
circumstances of the case before him demand. The fact
that an accused may tell him that he is informed of his
right to counsel and desires to waive this right does not
automatically end the judge’s responsibility. To be valid
such waiver must be made with an apprehension of the
 nature of the charges, the statutory offenses included
within them, the range of allowable punishments
thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts
essential to a broad understanding of the whole matter.
A judge can make certain that an accused’s professed

15

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 rendered.

This case graphically illustrates that a mere routine
inquiry -- the asking of several standard questions
followed by the signing of a standard written waiver of
counsel -- may leave a judge entirely unaware of the
facts essential to an informed decision that an accused
has executed a valid waiver of his right to counsel.

Von Moltke, 332 U.S. at 723-24.9

As far back as 1965 -- ten years prior to Faretta -- we
also began to articulate the scope of the court’s
responsibility when a defendant seeks to proceed pro se,
drawing upon Von Moltke. See United States v. Washington,
341 F.2d 277, 285 (3d Cir. 1965). We have refined those
requirements to reflect the obligations placed upon the
district court through Faretta and its progeny.
_________________________________________________________________

9. Since Faretta, the Court has revisited various aspects of self-
representation on several occasions. E.g., In re Little, 404 U.S. 553, 555
(1972) (A defendant who represents himself is "entitled to as much
latitude in conducting his defense as we have held is enjoyed by counsel
vigorously espousing a client’s cause."); McKaskle v. Wiggins, 465 U.S.
168, 177 (1984) (providing guidance on trial court discretion to utilize
standby counsel, and clarifying that "In determining whether a
defendant’s Faretta rights have been respected, the primary focus must
be on whether the defendant had a fair chance to present his case in his
own way. Faretta itself dealt with the defendant’s affirmative right to
participate, not with the limits on standby counsel’s additional
involvement."); Patterson v. Illinois, 487 U.S. 285, 293 (1988) (permitting
a simplified waiver of counsel for post-indictment questioning); Godinez
v. Moran, 509 U.S. 389, 399-400 (1993) (holding that the standard for
competency to stand trial is the same as the standard to plead guilty or
to waive counsel, except that a person seeking to waive a constitutional
right must also demonstrate that the waiver is knowing and voluntary;
holding further that the competency at issue is the competency to waive
the right, not the competency to perform as counsel.); Martinez v. Court
of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 154 (2000)
(finding the right of self-representation on direct appeal not mandated by
the United States constitution).

16

In skeletal form, the requirements are these.
 1. The defendant must assert his desire to proceed
pro se clearly and unequivocally. See, e.g. , Buhl v.
Cooksey, 233 F.3d 783, 791 (3d Cir. 2000).10

2. The court must inquire thoroughly to satisfy itself
that the defendant understands "the nature of the
charges, the range of possible punishments, potential
defenses, technical problems that the defendant may
encounter, and any other facts important to a general
understanding of the risks involved." Charles , 72 F.3d
at 404.

3. The court must "assure itself " that the defendant
is competent to stand trial. Id.11

Because a request to dismiss counsel just before (or
during) trial may well require a continuance, our court has
also developed a "good cause" test, whereby a court
confronted with a time-sensitive request to proceed absent
current counsel should ascertain the defendant’s reasons
for his dissatisfaction with counsel. United States v. Welty,
674 F.2d 185, 187 (3d Cir. 1982). Accord, Virgin Islands v.
James, 934 F.2d 468, 471 (3d Cir. 1991); Buhl, 233 F.3d at
_________________________________________________________________

10. We have determined that the Court’s approval of Faretta’s request as
clear and unequivocal is in actuality a prerequisite for assertion of a
right to self-representation. Buhl v. Cooksey , 233 F.3d 783, 792 (3d Cir.
2000). The Tenth Circuit Court of Appeals agrees."[W]e are persuaded
that the right is one which the defendant must clearly and unequivocally
assert before trial, as the accused did in Faretta. This is necessary
because the trial court faces the difficult related problem of ascertaining
whether there is an intelligent and voluntary waiver of the right to
counsel." United States v. Bennett, 539 F.2d 45, 50 (10th Cir. 1976)
(internal citations omitted). While requiring a clear and unequivocal
request by the defendant, the First Circuit Court of Appeals places the
burden on the court to elicit whether the request is clear and
unequivocal: "it is generally incumbent upon the courts to elicit that
elevated degree of clarity through a detailed inquiry." United States v.
Proctor, 166 F.3d 396, 403 (1st Cir. 1999).

11. No question as to Peppers’ competency to waive his right to counsel
appears in the record; hence, we have no reason to address this aspect
of the Faretta inquiry here. We note that this evaluation does not test
one’s legal competency to represent oneself.

17

798. If there is good cause, the court is required to grant a
continuance and appoint new counsel, unless the
defendant expressly wishes to proceed pro se. If the court
does not find good cause, the court must inform the
defendant that he can either proceed with current counsel,
or represent himself. See, e.g., Welty , 674 F.2d at 187. If he
indicates a desire to represent himself, the court must then
conduct a Faretta inquiry. Id.

While the identification of the defendant’s reasons for
wishing to dismiss his current counsel is more pertinent
when substitute counsel is desired, we have noted that his
reasons may also inform the knowing, understanding, and
voluntary inquiry as well. Buhl, 233 F. 3d at 798-99; see
also Stubbs, 281 F.3d at 117 (noting with respect to a mid-
trial request to proceed pro se that "the defendant’s motives
may still be relevant as they may shed light on whether the
defendant’s waiver has been made knowingly and
intelligently"); Jermyn v. Horn, 266 F.3d 257, 290 (3d Cir.
2001) (perceiving an assessment by the court of the
defendant’s intentions in seeking to take over his defense
mid-trial as pertinent to a determination of whether his
waiver of counsel was "knowing"); Charles , 72 F.3d at 404
(stating without elaboration that a court "must make an
inquiry regarding the defendant’s reasons for the request"
as the first step in a Faretta inquiry). We note that every
case in which we have iterated the "good cause" test has
involved a request that is "on the eve of trial" or, as was the
case in Stubbs, during trial.12

In sum, a district court cannot make an informed
decision as to the knowing and voluntary nature of a
defendant’s request to proceed pro se without a thorough
inquiry, on the record, to assure itself that the defendant
_________________________________________________________________

12. One request was made following trial. There, the defendant sought
new counsel prior to his sentencing and in conjunction with a request
for continuance -- after three earlier requests for a continuance of the
sentencing date had already been granted. We mentioned the inquiry
into reasons as one guideline "for conducting a proper inquiry following
a defendant’s request for substitution or waiver of counsel" but noted
that the defendant had clearly expressed his reasons, thus relieving the
court of any burden of inquiry. United States v. Salemo, 61 F.3d 214,
218, 221 (3d Cir. 1995).

18

fully apprehends the nature of the charges against him, the
perils of self-representation, and the requirements that will
be placed upon him. This calls for specific forewarning of
the risks that foregoing counsel’s trained representation
entails. Once the court has fulfilled those responsibilities,
however, if the defendant still elects to proceed pro se, the
court must permit him to do so.

c. The Court’s Inquiry and Conclusions as to Peppers

As noted earlier, Peppers first mentioned the issue of
proceeding pro se in a letter/motion to the Court on
October 20, 2000, and his attorney referred to the matter
again on November 2. The Court never dealt directly with
the October 20 letter, referring the matter to counsel, and
in its order of November 20 it seemed to downplay the
import of its contents based on Peppers’ conduct at the
November 2 hearing.13 Whether or not the October 20 letter
would have been sufficient to require the District Court to
inquire about Peppers’ desire to represent himself, the
November 6 colloquy clearly sufficed. As the Eleventh
Circuit said in Dorman v. Wainwright:

To invoke his Sixth Amendment right under Faretta a
defendant does not need to recite some talismanic
formula hoping to open the eyes and ears of the court
to his request. Insofar as the desire to proceed pro se
is concerned, petitioner must do no more than state
his request, either orally or in writing, unambiguously
to the court so that no reasonable person can say that
the request was not made.

798 F.2d 1358, 1366 (11th Cir. 1986) (quoted in part in
_________________________________________________________________

13. While referring the matter to counsel might be an appropriate
response to some direct correspondence from defendants, it seems
inappropriate when the defendant is confiding in the court about
difficulties he is experiencing with the very counsel the court chides him
for bypassing. Also, with respect to the November 2 hearing, the District
Court order seemed to characterize Peppers’ failure to assert his desire
to represent himself as somehow reflecting equivocation. While not
necessary to our ruling on this issue, we think the District Court
overread Peppers’ intent, given that the focus of the November 2 hearing
was on a different issue.

19

Buhl, 233 F.3d at 790 n.9 and Stubbs, 281 F.3d at 118
n.5). Although the District Court did conduct a colloquy
with him at that time, we view it as inadequate under our
precedent. While the Court did seek to ascertain the basis
for Peppers’ dissatisfaction with counsel -- his reasons --
it did not satisfactorily address the heart of the Faretta
inquiry.

As stated above, the second, and, in this case, core
responsibility that the court bears is to inquire as
thoroughly as needed to satisfy itself that the defendant
understands "the nature of the charges, the range of
possible punishment, potential defenses, technical
problems that the defendant may encounter, and any other
facts important to a general understanding of the risks
involved." Charles, 72 F.3d at 404. The Court never sought
to determine whether Peppers understood the risks-- the
structural limitations or perils of representing himself --
but focused instead on the ways that Peppers could be
accommodated by counsel’s representation:

Mr. Peppers, you have some very, very serious
charges against you in this matter. You have had no
experience in doing this before. Conspiracy is a
complicated matter. So is the killing of an individual in
the course of a drug transaction.

You also have a lot of witnesses that the government
needs to obtain on your behalf. He is out there able to
do that. You are confined. You will have every
opportunity to convey your wishes to Mr. Welch, to
present questions to him to present to the jury.
 . . .

Well, this case is scheduled for the 20th. There are
two weeks in between. I am directing Mr. Welch to sit
down with you and go over the strategy that he
intends. You can certainly supply him with the
questions that you want him to address to your
witnesses.

You will have the opportunity while you are sitting
there at trial to present -- you will have a pad and
paper. You can pass over to him questions. Of course,

20

it is up to him to decide whether or not the question is
relevant and whether or not it would be objected to.

Although the Court characterized this exchange as
"advis[ing] Defendant of the dangers of proceeding pro se,"
it did not apprise him of the full range of risks and
structural limitations that would be attendant upon
Peppers should he proceed pro se; nor does it even attempt
to ascertain the extent of Peppers’ understanding. The
responsibility of determining whether a waiver is knowing
and voluntary can be fulfilled only through adequate
inquiry and thorough explanation by the District Court.
Absent a proper inquiry, the District Court had no basis
upon which to deny -- or to grant -- Peppers’ request for
self-representation. McMahon v. Fulcomer, 821 F.2d 934,
946 (3d Cir. 1987).

The Court’s conclusion to deny Peppers’ motion to
proceed pro se was based largely on its determination that,
taking into consideration the fact that Peppers was charged
with serious offenses and incarcerated, he "is unable to
contact or interview witnesses and prepare a case.
Furthermore, Defendant has no legal training or expertise,
and to allow Defendant to represent himself is equivalent to
allowing him to stand trial with no representation at all."
The Court’s concern over Peppers’ skill and legal
competency misses the mark. Federal courts have stated
repeatedly that a court must not evaluate whether the
defendant is competent to represent himself as part of its
determination of whether he is knowingly asserting the
right to self-representation:

"The record affirmatively shows that Faretta was
literate, competent, and understanding, and that he
was voluntarily exercising his informed free will . . . .
We need make no assessment of how well or poorly
Faretta had mastered the intricacies of the hearsay
rule and the California code provisions that govern
challenges of potential jurors on voir dire. For his
technical legal knowledge, as such, was not relevant to
an assessment of his knowing exercise of the right to
defend himself."
Faretta, 422 U.S. at 835-36. See also Lopez v. Thompson,
202 F.3d 1110, 1119 (9th Cir. 2000) ("In assessing waiver

21

of counsel, the trial judge is required to focus on the
defendant’s understanding of the importance of counsel,
not the defendant’s understanding of the substantive law or
the procedural details."); United States v. McKinley, 58 F.3d
1475,1481 (10th Cir. 1995) (listing cases finding error when
a court denies self-representation based on its evaluation of
a defendant’s skills or preparation).

We have had occasion several times to describe the
elements of what a court should or should not do in
questioning a defendant when a request to proceed pro se
is made.14 It presents a challenge for a judge, and it seems
that invariably such a request comes at a time when it
diverts from trial preparation. Just as there is no talismanic
formula for a defendant’s expression of desire in this
regard, there is no talismanic formula for the court’s
inquiry. We have not hesitated to require that the
defendant be informed of all risks and consequences
associated with his decision for self-representation.

To ensure that an accused is aware of the pitfalls
possible in self-representation, "the district court
should advise him in unequivocal terms both of the
technical problems he may encounter in acting as his
own attorney and of the risks he takes if his defense
efforts are unsuccessful." See United States v. Welty,
674 F.2d 185, 188 (3d Cir. 1982). As a matter of
constitutional law, we have imposed a clear and
unambiguous obligation upon a trial judge who is
faced with an accused who states merely that he is
aware of his right to counsel but wishes to waive that
right . . . . At a minimum, "to be valid [a defendant’s]
waiver must be made with an apprehension of the
nature of the charges, the statutory offenses included
within them, the range of allowable punishments
thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts
essential to a broad understanding of the whole
matter." 674 F.2d at 188-189 (quoting Von Moltke v.
_________________________________________________________________

14. To recite only a few examples, we set forth the elements of an
appropriate colloquy in Welty, 674 F.2d at 188-89; Charles, 72 F.3d at
406-09; Buhl, 233 F.3d at 798-800; Stubbs, 281 F.3d at 117-19.

22

Gillies, 332 U.S. 708, 724 (1948) (plurality opinion)
(reversing denial of habeas petition because standard,
pre-printed waiver of counsel form insufficient to
satisfy Sixth Amendment)). We have held that an
accused’s protection under the Sixth Amendment Right
to Counsel is not satisfied when a trial judge has failed
 to conduct "a penetrating and comprehensive
examination" of the accused’s waiver attempt which
ensures that the accused is knowledgeable about his
decision, even when the colloquy skips just one of the
above factors. See Welty, 674 F.2d at 189 (no waiver
where court merely informed defendant that self-
representation is "inadvisable") (quoting Von Moltke,
332 U.S. at 724 (plurality opinion)); see also United
States v. Moskovits, 86 F.3d 1303, 1308 (3d Cir. 1996)
(no waiver notwithstanding trial judge’s detailed
colloquy with defendant because judge failed to state
that he was authorized to impose greater sentence
than that imposed in defendant’s first trial).

Henderson v. Frank, 155 F.3d 159, 166-67 (3d Cir. 1998)
(granting a writ of habeas corpus where a petitioner had
signed a "generic waiver form" and a petition to proceed pro
se, but the trial court had not conducted a detailed
colloquy). Nevertheless, we think that the following
questions (derived in large part from Federal Judicial
Center, Benchbook for U.S. District Court Judges S 1.02 (4th
ed. 2000)) would prove a useful framework for the court to
assure itself that a defendant’s decision to proceed pro se is
knowing and voluntary.

1. Have you ever studied law?*

2. Have you ever represented yourself in a criminal
action?

3. Do you understand that you are charged with these
crimes: [state the crimes with which the defendant is
charged]?

4. Do you understand that the U.S. Sentencing
Commission has issued sentencing guidelines that will be
used in determining your sentence if you are found guilty?

5. Do you understand that if you are found guilty of the
crime charged in Count 1, the Court must impose an

23

assessment of $___, and could sentence you to as many as
___ years in prison and fine you as much as $ ___? [Ask
defendant this question for each count of the indictment or
information.]

6. Do you understand that if you are found guilty of
more than one of these crimes, this Court can order that
the sentences be served consecutively, that is, one after
another?

7. Do you understand that if you represent yourself, you
are on your own? I cannot tell you -- or even advise you --
as to how you should try your case.

7a. Do you know what defenses there might be to the
offenses with which you are charged? Do you understand
that an attorney may be aware of ways of defending against
these charges that may not occur to you since you are not
a lawyer? Do you understand that I cannot give you any
advice about these matters?

8. Are you familiar with the Federal Rules of Evidence?*

8a. Do you understand that the Federal Rules of
Evidence govern what evidence may or may not be
introduced at trial and that, in representing yourself, you
must abide by those rules?

9. Are you familiar with the Federal Rules of Criminal
Procedure?*

9a. Do you understand that these rules govern the way
a criminal action is tried in federal court? Do you
understand that you must follow these rules?

10. Do you understand that you must proceed by
calling witnesses and asking them questions, and that,
except when and if you yourself testify, you will not be
permitted to tell the jury matters that you wish them to
consider as evidence?

10a. Do you understand that it may be much easier for
an attorney to contact potential witnesses, gather evidence,
and question witnesses than it may be for you?

11. I must advise you that in my opinion a trained
lawyer would defend you far better than you could defend

24

yourself. I think it unwise of you to try to represent
yourself. You are not familiar with the law. You are not
familiar with court procedure. You are not familiar with the
rules of evidence. I strongly urge you not to try to represent
yourself.

12. Now, in light of the penalties that you might suffer
if you are found guilty, and in light of all of the difficulties
of representing yourself, do you still desire to represent
yourself and to give up your right to be represented by a
lawyer?

13. Are you making this decision freely, and does it
reflect your personal desire?

14. Do you have any questions, or do you want me to
clarify or explain further anything that we have discussed
here?

If the answers to the foregoing questions satisfy the court
that the defendant knowingly and voluntarily desires to
proceed pro se, the court would then state the necessary
conclusions, such as:

I find that the defendant has knowingly and voluntarily
waived the right to counsel. I will therefore permit the
defendant to represent himself (or herself).

* As is evident from the follow-up questions, the
purpose of inquiring as to the defendant’s
knowledge is only to ascertain the extent to which
the defendant understands the procedure that is to
be followed during the course of the trial, not to
assess his legal knowledge or training to determine
his ability to represent himself well.

Of course, if, during the course of inquiry, it appears that
the defendant needs further explanation, or it is evident
that the defendant does not comprehend what the court is
saying or asking, the court will need to probe further.15

Here, the Court did not make a proper inquiry. Because
error in assessing whether a defendant may represent
_________________________________________________________________

15. No issue as to whether appointment of standby counsel would be
appropriate or advisable is before us.

25

himself is structural, it can never be harmless. E.g., Stubbs,
281 F.3d at 121 (citing McKaskle v. Wiggins, 465 U.S. at
177). Accordingly, we must remand this case to the District
Court for a new trial.

C. Did the District Court Correctly Exclude Drake’s Dying
Declaration?16

1. Standard of Review

To the extent that our review of the District Court’s
determination implicates its interpretation of the Federal
Rules of Evidence, our review is plenary, but where the
District Court’s ruling was "based on a permissible
interpretation of a rule," we review only for an abuse of
discretion. United States v. Console, 13 F.3d 641, 656 (3d
Cir. 1993).

2. Discussion

Peppers asks us to determine that the District Court
erred in refusing to admit the statements made by Jorge
Drake after he was shot, purportedly identifying the actual
shooter to various persons. Although multiple statements
were made, only the one made to Officer Rivera as Peppers
was being prepared for transport to Hershey Medical
Center, when he responded to the officer’s question as to
who shot him with "Jun," may arguably be characterized as
a dying declaration, and we will confine ourselves to
discussing that statement.

A dying declaration is admissible as an exception to
hearsay if the declarant makes the statement while
"conscious of impending death and under the belief that
there is no chance of recovery." Webb v. Lane , 922 F.2d
390, 395 (7th Cir. 1991). A court may infer knowledge of
the seriousness of a declarant’s condition from the"nature
and extent of the wounds inflicted." Id. (quoting Mattox v.
United States, 156 U.S. 237, 251 (1895)). Accord,
_________________________________________________________________

16. Since we have ordered a new trial, we need not rely on this issue as
a grounds for reversal. However, we address it here in recognition that
the issue could recur when the case is retried. We confine our discussion
to the record in the first trial, realizing that a different situation may be
presented during the subsequent proceedings.

26

Commonwealth v. Cooley, 348 A.2d 103, 108 n.8 (Pa. 1975)
(listing cases and types of wounds supporting an inference
that the declarant sensed death was imminent).

In the District Court’s ruling on the admissibility of the
evidence, it said, "At the hearing, Defendant was unable to
produce any evidence or testimony regarding the victim’s
physical or mental state at the time these statements were
made." During the hearing on the government’s motion in
limine, the Court had stated that it "needed some testimony
regarding the mental status of the soon to be deceased at
the time that he allegedly gave the statement to Officer
Rivera." Counsel explained that he had tried to contact the
physician who treated Drake in the emergency room, but
that physician had left the hospital’s employ, and he had
been unable to locate him. Counsel did stipulate that the
facts as to Drake’s physical condition were as they had
appeared in the report of the officer who interviewed Drake,
namely that at the time of the interview, Drake was heavily
sedated, his speech was slurred, and he had a bullet lodged
in his head.17 The District Court granted the government’s
motion in limine to exclude the statements.

Obviously, since the declarant had died, we -- and the
District Court -- have no way of ascertaining precisely what
Drake knew or what his state of mind was at the time.
Even evidence regarding one statement made to him might
not be conclusive, since we could not be sure whether other
statements were made, how the information was conveyed
to him, and how he received and responded to it.
Accordingly, it is clearly not only permissible, but indeed
necessary, consistent with our caselaw, that the trial judge
draw and rely on inferences from the facts of record,
including the type of wounds inflicted and the nature of the
declarant’s injuries. See Webb, 922 F.2d at 395.
_________________________________________________________________

17. These facts are taken from the government’s brief on the motion in
limine, derived from Officer Rivera’s report and stipulated to by Peppers’
counsel at the hearing on the motion in limine. Officer Rivera’s report
also states that Drake was paralyzed on the left side of his body. Peppers
does not dispute the contents of the report. Peppers has moved to
include the report, but given the lack of argument as to its contents,
especially in light of the fact that it was not technically part of the record
at trial, we do not need to include it in the record on appeal.

27

Here, the only information we have as to what medical
personnel may have communicated about Drake’s condition
immediately following the shooting was provided not to
Drake himself, but to Officer Rivera. The officer was
informed by an emergency physician that Drake had"a
good chance for recovery," but there is no evidence in the
record as to statements made to Drake, or his own beliefs
or information about his condition. The District Court
refused to admit the declaration about "Jun," expressing
concern that it had not been provided with sufficient
information as to Drake’s perceptions of his condition at
the time he made his statements. This rationale leaves us
uncertain as to the District Court’s understanding of its
task. On the one hand, the District Court may have felt
that it was the defendant’s burden to provide direct proof,
and that it was not enough for it to rely on inferences
drawn from the record, including Drake’s condition and the
types of wounds inflicted. On the other hand, the District
Court might have inferred from the information conveyed to
Officer Rivera that Drake would have been told that he was
not in danger of death, so something more was needed to
convince the Court that the circumstances of Drake’s injury
and condition made the exception applicable. See , e.g.,
David v. Pueblo Supermarket of St. Thomas, 740 F.2d 230,
235 (3d Cir. 1984) (noting that the burden of establishing
an exception to hearsay -- there, an excited utterance --
lies on the movant of the evidence). The District Court erred
if the first explanation -- namely that a court must be
provided with direct proof -- was at the heart of its ruling.
If the second rationale -- that the inferences to be drawn
from the proof were inadequate to tip the scales in favor of
admissibility -- motivated the Court, there would be no
abuse of discretion. Ordinarily, we would remand to the
District Court for clarification. See, e.g., United States v.
Sriyuth, 98 F.3d 739, 744 n.8 (3d Cir. 1996) (noting that
where a District Court has not adequately set forth its basis
for determining the admissibility of evidence (there under
Rule 403), we may remand to the district court for
clarification or even for a new trial). But here, as noted
above, the issue may be raised anew at retrial, and on
remand the Court should revisit this ruling if the Court
misapprehended the evidence it should consider or the
Defendant’s burden.

28

IV. Conclusion

For the reasons stated above, we will VACATE the
Judgment and Commitment Order and REMAND for a new
trial.

A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit

29