United States v. Stubbs

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

2-14-2002

USA v. Stubbs
Precedential or Non-Precedential:

Docket 0-4342

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Filed February 14, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-4342

UNITED STATES OF AMERICA

v.

CHARLES STUBBS
Appellant

Appeal From the Conviction and Judgment of Sentence
Imposed by the United States District Court
of the Western District of Pennsylvania
(D.C. Criminal. No. 99-cr-00175-1)
District Judge: Hon. Donnetta W. Ambrose

Argued December 17, 2001

BEFORE: SLOVITER, MCKEE, Circuit Judges and
HAYDEN,* District Judge

(Opinion Filed: February 14, 2002)

Adam B. Cogan (Argued)
One Northgate Square
Greensburg, PA 15601
Attorney for Appellant

Marc I. Osborne (Argued)
U.S. Department of Justice
601 D Street, N.W., Suite 6111
Washington, D.C. 20530
Attorney for Appellee
_________________________________________________________________

* Hon. Katharine S. Hayden, District Judge, United States District Court
for the District of New Jersey, sitting by designation.
OPINION OF THE COURT

McKEE, Circuit Judge.

Charles Stubbs appeals his conviction for robbery and
related offenses based upon several claims of error
including the legality of his warrantless arrest, and the
adequacy of his purported waiver of trial counsel.
Inasmuch as we agree that the waiver colloquy was not
sufficient to insure a proper waiver of the Sixth Amendment
right to counsel, we will reverse and remand for a new trial.

I. Background

On October 5, 1999, FBI agents received a tip from a
confidential informant that Larry Brown and Walter Baynes
were planning to rob a bank the next day. The same
informant had previously told the FBI that Brown had
robbed the PNC Bank on Frankstown Road in Penn Hills,
Pennsylvania two weeks earlier. That robbery was
"takeover" style, where the perpetrators went behind the
counters and took cash from bank tellers' drawers.

Based on this information, agents placed Brown under
surveillance. On the morning of October 6, agents saw two
men arrive at Brown's house. One arrived in a tan Dodge,
and the other arrived in a blue Chevrolet. Both men left in
the tan Dodge along with Brown. Agents followed the Dodge
to the same strip mall where the PNC Bank robbery had
occurred on Frankstown Road two weeks earlier. They saw
the Dodge "square" the block (drive all the way around),
and then leave the area and travel to another shopping mall
containing a number of banks.

The next morning, October 7, two men again arrived at
Brown's house. This time the three men left in the blue
Chevrolet. Once again agents followed as the men drove to
the mall containing the PNC Bank. The agents observed
Brown as he left the car and went into a drugstore in the
mall. He looked into the bank upon entering and leaving
the drugstore. The three men then left the strip mall and
parked in a nearby cemetery for a few minutes. They then

2
drove back to the strip mall and once again "squared" the
block. The Chevrolet was next seen in the parking lot of the
Squirrel Hill PNC Bank. The agents continued their
surveillance as the Chevrolet left that parking lot and
returned to the parking lot in the Frankstown Road mall.
Agents then saw the passenger in the back seat pull a ski
mask over his head. After a few minutes, the three men
drove to another PNC Bank in the Great Valley Shopping
Center. There, two of the men got out of the car, walked
toward the bank, but then turned around.

Agents lost track of the car at 1:23 p.m. in Wilkinsburg.
However, at 1:46 p.m. a radio dispatch notified the agents
that a Dollar Bank in the Monroeville Miracle Mile
Shopping Center had just been robbed. The dispatch said
that the crime was committed by three males wearing ski
masks and carrying handguns, and was a "takeover"
robbery. Witnesses said that the robbers placed the money
in a Kaufmann's shopping bag.

The agents concluded that Brown and his companions
had robbed that bank after they lost sight of them, and the
agents proceeded to Brown's house to await his return. The
blue Chevrolet did return to Brown's home shortly after 2
p.m. Larry Brown, Jasper Stubbs, and the defendant,
Charles Stubbs, were in the car. Agents immediately
arrested the three men without a warrant, and then
conducted a warrantless search of the car. They found a
Kaufmann's shopping bag containing currency, ski masks,
gloves, and handguns. Stubbs was thereafter formally
charged with the Dollar Bank robbery, and counsel was
appointed to represent him. Before trial, the cases against
the three men were severed.

Stubbs began his trial represented by a court appointed
attorney. However, about halfway through Stubbs' defense
case, and after the prosecution had rested its case-in-chief,
Stubbs asked to represent himself for the remainder of the
trial. After a brief discussion, the trial judge agreed, and the
trial proceeded with Stubbs representing himself. Not
surprisingly, the jury convicted him of all five of the counts
in the indictment, and the court subsequently sentenced
him to a total of 562 months incarceration. This appeal
followed.

3
Although Stubbs makes numerous arguments on appeal,
the only one that we need to address at length involves his
purported waiver of counsel.1 Stubbs argues that his waiver
of counsel was not knowing and intelligent as required by
the Sixth Amendment. We agree.

II. The Waiver of Counsel Issue2

Although Stubbs was represented by appointed counsel
throughout most of the trial, he informed the court of his
dissatisfaction with counsel and asked permission to
represent himself before the trial ended. His request
prompted the following exchange:

The Court: You wanted to see me before the
jury comes in?

[Defense counsel]: Your Honor, in speaking with my
client this morning, he indicated
to me he wishes to address the
Court regarding a certain matter.
I don't know the nature of the
matter. He wishes now to speak.

The Defendant: Yes, Your Honor. Things that I
have been telling my lawyer to try
to accomplish here, he's not done.
As of now, I feel as though my
lawyer is ineffective and I wish to
represent myself for the
remainder of this trial.

The CourtSo what you're asking is that you
be allowed to testify without
examination from Mr. Cogan and
then give your closing statement?
_________________________________________________________________

1. We briefly discuss infra Stubbs' argument that there was no probable
cause to support his warrantless arrest. We summarily dismiss Stubbs'
claim that the district court improperly used a prior conviction to
enhance his sentence.

2. Our review of whether a defendant's waiver of counsel was knowing
and intelligent is plenary as it involves only legal issues. See Gov't of
the
Virgin Islands v. Charles, 72 F.3d 401, 404 (3d Cir. 1995); United States
v. Velasquez, 886 F.2d 1076, 1086 (3d Cir. 1989).

4
The Defendant: Excuse me?

The Court: I guess what you're asking me to
allow you to do is to testify
without Mr. Cogan questioning
you--of course, you would be
subject to cross examination--

The Defendant: No, I'm going to do my own thing.

The Court: Well, your own thing has to be
within the confines of the trial
procedures. If you want to--

The Defendant: I am going to represent myself as
of now.

The Court: Okay. Let me explain what's left
in the trial. What's left in the trial
is your testimony or any other
witness you might have here to
call and the closing arguments.
That's all that's left in the trial.

The Defendant: No, there's evidence that I want to
admit.

The Court: Well, if it's admissible, certainly it
can be offered and the
Government can object to it and
I'll make rulings.

The Defendant: Thank you.

The Court: But before we continue, Ms. Kelly,
do you have anything to say
about this?

[The Prosecutor]: Well, I would just like to say that
I think Mr. Cogan has been
representing Mr. Stubbs quite
well; and that if he's now decided
that he no longer wants Mr.
Cogan to represent him, then I
think maybe the Court should
advise him of the consequences of
that, although they are pretty
obvious, and go from there.

5
The Court: Well, maybe I'm leaving some
things out, but you know you are
entitled to be represented by an
attorney. You understand that?

The Defendant: Yes I do. And I also know that I'm
entitled to represent myself if I
wish to.

The Court: You understand that if you make
this decision, anything you do is
subject to objection by counsel,
and that if that objection is well
taken, I might grant that
objection. And that you are only
entitled, as I have said several
times, to represent yourself in
accordance with the Rules of
Criminal Procedure, the Rules of
Evidence, and the Rules of Court
as they pertain to this case. You
can't do whatever you want to do
if it is not legally permissible, if
evidence is not legally admissible
or legally competent. Do you
understand that?

The Defendant: No, not really.

The Court: Well, I'm telling you that. That
you are not allowed to do
everything you want to because
you want to do it. There are rules
of Evidence, there are Rules of
Procedure--

The Defendant: All I'm saying is if I have some
documents that we have received
already, like such as FBI logs,
things like that, that I want to
refer to in basically my closing--

The Court: Well, you can't refer to any facts
that are not in evidence. That's
one thing.

6
The Defendant: That's why I said I want to enter
this stuff in evidence because
there was just a bunch of lies told
there was just simply a bunch of
lies told.

The Court: Well, that's not for me to decide,
for you to decide, or for the
Government to decide. That's for
the jury to decide.

The Defendant: Exactly, that's what I am saying.
I have documentations [sic] that
say they lied.

The Court: Ms. Kelly, I don't know, I agree
that Mr. Stubbs should be aware
of the consequences of
representing himself because you
don't know, as you have
admitted, the Rules of Evidence,
the Rules of Procedure. I'm not
really sure if there's anything else
that the Government feels that he
should be told. And if there is,
please let me know. I am not
really sure either whether or not I
can tell Mr. Stubbs that he can't
represent himself. I don't think I
can say that. But certainly I can
say this: That the Government's
evidence is already in. The
evidence of Mr. Moses is already
in. The only possible part of the
trial would be your testimony,
which you would have to testify
under oath if you choose to
testify. You are not required to
testify. You are not required to do
or prove anything on your behalf
because it's the Government's
burden to prove that you are
guilty beyond a reasonable doubt.
But if you do testify, do you

7
understand that you are subject
to cross-examination by the
Government's attorney?

The Defendant: There is no reason for me to
testify if I'm representing myself. I
can tell the jury what I want them
to know from my own mouth.

The Court: You may not argue facts that are
not in evidence. I can tell you
that.

The Defendant: That's why I'm--Your Honor, I'm
saying that I want--

The Court: Do you want to put--do you want
to make offers now or do you
want to wait until the jury comes
in and I will make rulings on
whatever you want to admit?

The Defendant: I want to offer--I don't know
exactly--I may touch on a lot of
things that--

The Court: Offer a piece of evidence if you
have evidence to introduce in
your case. Or do you want me to
bring the jury in and do it--do
you want it in front of the jury?

The Defendant: It doesn't matter to me.

The Court: It does matter. I think it should
be probably. I don't know. Does
anybody have any thoughts?

. . .

[Defense Counsel]: Judge, as a matter of procedure,
I think Mr. Stubbs would have to
be advised at this point of the
consequences of his actions and
then if he--

The Court: What are the consequences of his
action? I told him he has to follow

8
the rules, he has to follow the
Rules of Procedure, the Rules of
Evidence, and if you--well--

[The Prosecutor]: And he can't say he wants to
represent himself to introduce his
own testimony and avoid taking
the witness stand.

The Court: That's certainly true. And I hope
you understand that. You say,
why should I testify when I can
tell the jury the facts that aren't
in evidence. So if there hasn't
been sworn testimony of those
facts in evidence, you are going to
be precluded from arguing that to
a jury. Because a person who
closes can only argue the
evidence. That's what a closing
argument is. A person argues--

The Defendant: So you are saying to me--

The Court: Excuse me, will you allow me to
finish. A person argues the
evidence that is presented before
a jury. A person doesn't just talk
to the jury and introduce
evidence without being subject to
cross-examination. That's not
how a trial works.

The Defendant: Listen, again, I'm saying that
there are certain lies that I know
have been told from certain FBI
logs, do you understand what I'm
saying--

The Court: No, I don't understand a word of
what you're saying.

The Defendant: If you would let me finish. And
testimony given by bank tellers,
bank security management, and
things like that.

9
Stubbs Br. at 21-26. The court ultimately allowed Stubbs
to represent himself, but ordered defense counsel to serve
as "stand by" counsel throughout the remainder of the trial.3
Id. at 26.

A.

The Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
Assistance of Counsel for his defense." U.S. Const. amend.
VI. The Supreme Court has construed this to mean that
"the guiding hand of counsel" must be made available in
criminal trials to those that can not afford to hire an
attorney on their own. United States v. Ash, 413 U.S. 300,
308 (1973); Gideon v. Wainright, 372 U.S. 335, 340 (1963).

It is now clear, however, that the Sixth Amendment also
guarantees the right of self-representation. The Supreme
Court has recognized that that right is necessarily
embodied in the Sixth Amendment, as "the Constitution
does not force a lawyer upon a defendant." See Faretta v.
California, 422 U.S. 806, 814 (1975), quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279 (1943). In
Faretta, the trial judge found that the criminal defendant
had no constitutional right to conduct his own defense, and
required court appointed counsel to conduct the defense
instead. See Faretta, 422 U.S. at 808-09. On appeal, the
defendant claimed that he had a Sixth Amendment right to
conduct his own defense, and that the trial court's denial of
that right required a new trial. The Supreme Court agreed,
finding that the rights embodied in the Sixth Amendment
"grant[] . . . [an] accused personally the right to make his
defense." Id. at 819. The Court reasoned that although the
Sixth Amendment was intended as a protection for the
defendant, "thrust[ing] counsel upon the accused against
his considered wish, . . . violates the logic of the
Amendment." Id. at 820.

The Sixth Amendment thus embodies two competing
_________________________________________________________________

3. As standby counsel, Cogan was instructed to sit at the table with
Stubbs and make himself available in the event that Stubbs had any
questions.

10
rights because exercising the right to self-representation
necessarily means waiving the right to counsel. See Buhl v.
Cooksey, 233 F.3d 783, 789 (3d Cir. 2000).

It is axiomatic that a criminal defendant's waiver of a
constitutional right must be voluntary, knowing and
intelligent. Therefore, the constitutional right of self-
representation in a criminal case is conditioned upon a
voluntary, knowing and intelligent waiver of the right to
be represented by counsel.

Buhl, 233 F.3d at 798. Further, "we do not presume
acquiescence in the loss of fundamental rights." Johnson,
304 U.S. at 464, citing Ohio Bell Tel. Co. v. Public Utilities
Comm'n, 301 U.S. 292, 307 (1937). Therefore, we"indulge
every reasonable presumption against waiver" of the right
to counsel. Id., citing Aetna Ins. Co. v. Kennedy, 301 U.S.
389, 393 (1937); Von Moltke v. Gillies, 332 U.S. 708, 723
(1948). Moreover, inasmuch as the right to counsel is
fundamental to due process and the criminal justice
system, its denial can never be harmless error. See United
States v. Salemo, 61 F.3d 214, 222 (3d Cir. 1995), citing
Chapman v. California, 386 U.S. 18, 23 & n.8 (1967).

In United States v. Welty, 674 F.2d 185 (3d Cir. 1982) we
held that a court must undertake a two-prong inquiry when
a defendant expresses a desire to either substitute counsel
or proceed pro se on the eve of trial. The court must first
determine if the accused can "show good cause[for
dismissing counsel], such as a conflict of interest, a
complete breakdown in communication, or an irreconcilable
conflict with his attorney." Welty, 674 F.2d at 188.
However, "[i]f the reasons are made known to the court, the
court may rule without more." Id., quoting Brown v. United
States, 264 F.2d 363, 369 (D.C. Cir. 1959) (en banc)
(Burger, J. concurring in part). We held that if good cause
does exist, counsel should be dismissed "even though it
may necessitate continuing the trial." Id. However, if the
defendant does not establish good cause, the defendant
then has to chose between proceeding pro se, or accepting
counsel's representation and stewardship. Id.

Where, as here, a defendant only wants to proceed pro se
and does not request substitute counsel, the first prong of

11
the inquiry takes on less significance. See Buhl , 233 F.3d at
798. However, 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. See id.

Here, the colloquy between the court and Stubbs shows
that Stubbs wished to dismiss his counsel because Stubbs
was dissatisfied with his attorney's performance, and
because Stubbs wanted to address the jury directly. 4
Stubbs' request to proceed pro se came at a time when the
trial was well underway; the prosecution had finished
introducing evidence in its case-in-chief. Therefore, the
circumstances here do not fit neatly into the parameters we
discussed in Welty. Nevertheless, the guiding principles of
Welty still assist our analysis of Stubbs' Faretta claim.

There is no issue here as to whether Stubbs "clearly and
unequivocally" asserted his right to counsel as is required
under the Sixth Amendment. Buhl, 233 F.3d at 792. After
defense counsel informed the trial court that Stubbs
wanted to represent himself, Stubbs then confirmed to the
court: "I'm going to do my own thing. . . . I am going to
represent myself as of now." When the court responded by
reiterating that Stubbs was entitled to be represented by an
attorney, Stubbs replied: "And I also know that I'm entitled
to represent myself if I wish to." Stubbs' Br. at 22-23. This
was clearly not a request for substitute counsel, and it was
just as clearly and unambiguously an assertion of the right
to self-representation under the Sixth Amendment. 5

This imposed a "serious and weighty responsibility upon
the trial court [to determine] whether there[was] an
intelligent and competent waiver by the accused." Buhl, 233
_________________________________________________________________

4. As noted above, Stubbs told the court: "there's evidence that I want to
admit[,]" Stubbs Br. at 22, and "I have some documents . . . FBI logs,
things like that, that I want to refer to in basically my closing[.]" Id.
at
23. He also told court: "There is no reason for me to testify if I'm
representing myself. I can tell the jury what I want them to know from
my own mouth." Id. at 24.

5. A defendant need not "recite some talismanic formula hoping to open
the eyes and ears of the court to his request" to invoke his/her Sixth
Amendment rights under Faretta. Buhl, 233 F.3d at 791, quoting Dorman
v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986).

12
F.3d at 799. In Welty, and again in Buhl , we defined the
inquiry that a trial court must undertake under these
circumstances. We stated:

the district court should advise [the defendant] 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.
The district court judge should tell the defendant, for
example, that he will have to conduct his defense in
accordance with the Federal Rules of Evidence and
Criminal Procedure, rules with which he may not be
familiar; that the defendant may be hampered in
presenting his best defense by his lack of knowledge of
the law; and that the effectiveness of his defense may
well be diminished by his dual role as attorney and
accused. In addition, as Justice Black wrote in Von
Moltke v. Gillies . . . (t)o 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.

Welty, 674 F.2d at 188-89 (internal citations and
quotations omitted) (emphasis added); see also Buhl, 233
F.3d at 799 (quoting Welty); Salemo, 61 F.3d at 220. We
also stressed that "[p]erfunctory questioning is not
sufficient." Welty, 674 F.2d at 799.

The specificity and care required of the trial court are
dictated by the gravity of the defendant's actions in waiving
the protections endemic in representation by skilled defense
counsel:

[w]hen an accused manages his own defense, he
relinquishes, as a purely factual matter, many of the
traditional benefits associated with the right to
counsel. For this reason, in order to represent himself,
the accused must `knowingly and intelligently' forego
those relinquished benefits. Although a defendant need
not himself have the skill and experience of a lawyer in
order competently and intelligently to choose self-

13
 representation, he should be made aware of the
dangers and disadvantages of self-representation, so
that the record will establish that `he knows what he is
doing and his choice is made with eyes open.'

Faretta, 422 U.S. at 835 (citations omitted). A court should
only accept a waiver after making a searching inquiry
sufficient to satisfy the court that the defendant's wavier
was understanding and voluntary. Welty, 674 F.2d at 189;
McMahon v. Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987);
Salemo, 61 F.3d at 220. Thus, a court ought not to accept
a waiver absent "a penetrating and comprehensive
examination of all the circumstances." Buhl , 233 F.3d at
799, quoting Welty, 674 F.2d at 189.

The court's inquiry here does not satisfy that standard.

B.

The district court did inform Stubbs of the technical
problems he faced in general. The court told Stubbs of the
problems that could arise under the Rules of Evidence and
Criminal Procedure, as well as the local court rules. The
court's comments to Stubbs included the following:

You understand that if you make this decision,
anything you do is subject to objection by counsel, and
that if that objection is well taken, I might grant that
objection. And that you are only entitled, as I have said
several times, to represent yourself in accordance with
the Rules of Criminal Procedure, the Rules of Evidence,
the Rules of Court as they pertain to this case. You
can't do whatever you want to if it is not legally
permissible, if evidence is not legally admissible or
legally competent.

Stubbs' Br. at 23. However, the court then asked Stubbs:
"Do you understand that?" and Stubbs replied:"No, not
really." Id. The court then tried to elaborate, but only
reiterated what it had already explained. The court said:
"Well, I'm telling you that. That you are not allowed to do
anything you want to because you want to do it. There are
rules of Evidence, . . ." Id. Stubbs then insisted that he
wanted to refer to some specific documents in his closing,

14
and the court properly told him that he could not refer to
anything that was not in evidence. See id. However, Stubbs
replied to that by insisting that that was the very reason
that he wanted to "enter this stuff in evidence because
there was just a bunch of lies told there was simply a
bunch of lies told." Id. After hearing from the court that it
was not the court's job to determine what were lies, Stubbs
persisted: "Exactly, that's what I am saying. I have
documentations that say they lied." Id. The court then
shifted out of this verbal impasse and told Stubbs that he
was not required to testify, that the government's evidence
was already in, and "the only possible part of the trial
would be your testimony which you would have to testify
under oath if you chose to testify . . . But if you do testify,
do you understand that you are subject to cross-
examination. . . " Id. at 24.

The court's summary of the phases of the trial that
remained did not inform Stubbs of the possibility of
rebuttal and sur rebuttal. However, there is a far more
glaring and substantive omission. It is obvious from the
exchange between Stubbs and the court that Stubbs
wanted to proceed pro se so he could bring certain matters
to the attention of the jury and address the jury directly,
thereby avoiding the need of testifying under oath. Yet, it is
clear that Stubbs never understood that proceeding pro se
would not allow him to inform the jury of anything that he
could not also inform the jury of if represented by counsel.
The court did explain that Stubbs would be limited by the
Rules of Evidence but it is clear from the exchange that
Stubbs believed he would have certain evidentiary
advantages by proceeding pro se. Moreover, Stubbs clearly
told the court that he did not understand what the court
was saying about the Rules of Evidence and Procedure
when the court tried to elaborate, and the court never
attempted to explain in terms that Stubbs would
understand.6
_________________________________________________________________

6. Of course, it may be that Stubbs really did understand and was
simply being obstinate. However, we can not conclude that on this
record. Moreover, a court must take care that a purported waiver of the
Sixth Amendment is knowing and voluntary, even if the defendant is

15
The court did attempt to elaborate upon how the Rules of
Evidence and Procedure could limit Stubbs in presenting a
defense. The court told Stubbs: "So if there hasn't been
sworn testimony of those facts in evidence, you are going to
be precluded from arguing that to a jury. Because a person
who closes can only argue the evidence. That's what a
closing argument is. A person argues --." Stubbs' Br. at 25.
Stubbs then apparently tried to obtain some clarification by
asking: "So you are saying to me --" However, the court
responded: "Excuse me, you will allow me to finish," id. at
25, and continued explaining that Stubbs could not speak
to the jury. However, the court did not respond to Stubbs'
concern in a manner that was sufficiently clear to allow us
to conclude that Stubbs fully understood what he was
doing. In fact, after this exchange, Stubbs simply replied:
"Listen, again, I'm saying that there are certain lies that I
know have been told from certain FBI logs, do you
understand what I'm saying?" Id. The Court told Stubbs it
did not understand and Stubbs (not to be outdone by the
court's admonition to not interrupt) replied: "If you would
let me finish;" and continued his discussion about the bank
tellers. Defense counsel was then given a moment with
Stubbs, and the exchange appears to have concluded at
that point.7 Id. at 26.

In addition, the court also failed to warn Stubbs of the
disadvantages and pitfalls of playing the dual role of
attorney and accused. Other than mentioning the potential
procedural problems, the record is devoid of the kind of
warnings that we have previously found sufficient to accept
_________________________________________________________________

being obstinate. See Welty, 674 F.2d at 189. ("While we can understand,
and perhaps even sympathize, with the frustration and exasperation of
the district court judge, even well-founded suspicions of intentional
delay
and manipulative tactics can provide no substitute for the inquiries
necessary to protect a defendant's constitutional rights.")

7. Nothing further appears in the Appendix or Stubbs' Brief, and the
Government has not provided us with any additional excerpts from the
trial transcript to establish that the court conducted any further
inquiries. Accordingly, we presume that what we have set forth
constitutes the entire exchange between the court and Stubbs on the
issue of his waiver of counsel.

16
a waiver of defense counsel. See e.g. Gov't of the Virgin
Islands v. James, 934 F.2d 468, 472 n.5 (3d Cir. 1991)
(upholding defendant's waiver of counsel where the trial
judge warned the defendant that "a person who has himself
for a lawyer is a fool[.]").8

As the trial judge did not properly advise Stubbs of the
pitfalls of self-representation, we conclude that the trial
court's colloquy with Stubbs does not satisfy the minimum
standards of Faretta. We can not conclude that Stubbs
"kn[ew] what he [was] doing and his choice [was] made with
eyes open." Faretta, 422 U.S. at 835, quoting Adams, 317
U.S. at 279. Accordingly, we hold that Stubbs' waiver of
counsel was not made knowingly and intelligently. 9

The fact that the trial court instructed Mr. Cogan to serve
as standby counsel for the remainder of the trial does not
change our analysis. Nowhere in Faretta or our
pronouncements in Welty do we suggest that the presence
of standby counsel would alter our analysis of the facts on
this record. Stubbs did not request co-counsel; he
requested to act as his own counsel. In certain
circumstances, the appointment of standby counsel may
even be incongruous with the exercise of the right to self-
representation. See e.g. Buhl, 233 F.3d at 802 (finding the
hybrid representation of standby counsel and the
defendant's exercise of the right to represent himself
_________________________________________________________________

8. We realize, of course, that this precise language will often only add
fuel to the fire and we do not in any way suggest that a court must
inform a defendant of the pitfalls of self representation in these words.
We merely mention James by way of example of the types of problems a
court must inform the accused of when deciding whether to accept a
waiver of counsel.

9. We reject Stubbs' argument, however, that he was not adequately
informed of the nature of the charges and the range of punishments
against him. Although the trial judge did not specifically advise Stubbs
to that effect, Stubbs had previously been advised on these matters at
the Initial Appearance, see App. at 5, the Detention Hearing, see App. at
71, as well as at his Arraignment, see App. at 77-78. This court has
previously upheld a waiver of counsel as valid where the trial judge
failed
to tell the defendant the nature of charges and range of penalties, but
the defendant had already been reminded of this information on two
prior occasions. See McFadden, 630 F.2d at 972.

17
"inconsistent with the core of the constitutional right that
[the defendant] was attempting to assert."). In any event,
the record submitted on appeal here does not suggest that
standby counsel played any part in aiding Stubbs during
the remainder of the trial or ameliorating the disadvantages
Stubbs would naturally face as both counsel and accused.

The government argues that since the trial was almost
over when Stubbs asked to represent himself, the potential
dangers of self-representation were markedly reduced. First
of all, we reject this argument because it assumes that
defense counsel did not have much more to present in
response to the government's case. Although that may or
may not be true, we have not been shown anything on this
record to support that supposition.

More importantly, however, this argument fails because it
suggests that any error in the court's colloquy was
harmless. The government is suggesting that since Stubbs
enjoyed the protections of representation throughout most
of the trial, there is little chance that he was prejudiced by
taking over after nearly all evidence against him was
admitted. However, that is nothing more than an invitation
to engage in the harmless error analysis that the Supreme
Court has rejected in the context of a Sixth Amendment
waiver of counsel.

Since the right of self-representation is a right that
when exercised usually increases the likelihood of a
trial outcome unfavorable to the defendant, its denial is
not amenable to "harmless error" analysis. The right is
either respected or denied; its deprivation cannot be
harmless.

McKaskle v. Wiggins, 465 U.S. 168, 177 (1984).10
_________________________________________________________________

10. Of course, we do not suggest that a defendant can wait until the last
question is asked of the last witness and then attempt to proceed pro se
in order to sabotage a criminal proceeding. A defendant who seeks only
to sabotage a criminal proceeding is not clearly and unequivocally
waiving his/her right to counsel, and trial courts can prevent such
tactics from succeeding by relying upon information gained during the
inquiry required under Welty. We caution, however, that trial courts
must be careful to avoid allowing the timing of a purported waiver to
necessarily define the defendant's sincerity in requesting it.

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III. The Probable Cause Issue

Stubbs also argues that the FBI agents lacked probable
cause for the warrantless arrest and that the physical
evidence that was seized is tainted by an illegal search. The
district court denied Stubbs' motion to exclude the
informant's tip, and then found that the tip, in conjunction
with the activity observed during the surveillance,
constituted probable cause to arrest. The court held that
the car was validly searched incident to a valid arrest and
that the physical evidence derived from that search was
therefore admissible. Inasmuch as this may be an issue on
remand, we will address Stubbs' challenge to the physical
evidence. Our review of the district court's legal
determinations as to the legality of the seizure of the
evidence is plenary. See Ornelas v. United States, 517 U.S.
690, 697 (1996); United States v. Harple, 202 F.3d 194, 196
(3d Cir. 1999).

Police have probable cause to arrest if the circumstances
are sufficient to cause a prudent person to believe that a
crime has been committed and the person to be arrested
committed it. See Beck v. Ohio, 379 U.S. 89, 91 (1964); Paff
v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000). Probable
cause is determined by the "totality of the circumstances."
Illinois v. Gates, 462 U.S. 213, 230-31 (1983); Sharrar v.
Felsing, 128 F.3d 810, 818 (3d Cir. 1997). We must assess
the "knowledge and information which the officers
possessed at the time of arrest, coupled with the factual
occurrences immediately precipitating the arrest" in
determining if probable cause existed. United States v.
Harris, 482 F.2d 1115, 1117 (3d Cir. 1973)."[P]robable
cause is a fluid concept--turning on the assessment of
probabilities in particular factual contexts--not readily, or
even usefully, reduced to a neat set of legal rules." Paff, 204
F.3d at 436, quoting Gates, 462 U.S. at 436.

A failure on the part of law enforcement to obtain a
warrant does not necessarily invalidate an arrest. The
Supreme Court has held that where an automobile is
involved, exigent circumstances exist that overcome the
general warrant requirement due to the automobile's"ready
mobility." See Pennsylvania v. Labron, 518 U.S. 938, 940
(1996), citing California v. Carney, 471 U.S. 386, 390-91

19
(1985); see also United States v. Bivens, 445 F.2d 1064,
1069 (3d Cir. 1971) (upholding warrantless arrest of
defendant traveling in an automobile where probable cause
existed to arrest). Further, an individual has a reduced
expectation of privacy in an automobile due to its pervasive
regulation. See Labron, 518 U.S. at 940, citing Carney, 471
U.S. at 393.

In light of these legal principles, Stubbs' challenge to the
physical evidence does not merit much discussion. An
informant told the FBI that a bank was going to be robbed,
and that Brown was going to rob it. Although this alone
would fall woefully short of probable cause no matter how
reliable the informant, there is more. The tip was
corroborated by the surveillance of Brown. As noted above,
the agents followed Brown and his companions as they
circled blocks, drove around banks without going in, and
put on ski masks while parked in the parking lot near one
of the banks. At that point, the agents could fairly conclude
that Brown and his companions had not gotten lost on the
way to a downhill slalom competition. They could
reasonably assume that the ski masks were going to be
used in a bank robbery, just as the informant had
predicted.

On October 7, the agents lost sight of the three men 23
minutes before the Dollar Bank robbery. The car in which
the three men were traveling was only five or six miles from
that bank when agents lost sight of it. The robbery reported
at the bank was a "takeover" style robbery that was
consistent with the robbery that had occurred earlier at the
PNC Bank on Frankstown Road. Agents had been told that
Brown was involved in that robbery as well. The totality of
what the agents were told, and what they confirmed with
their surveillance, along with the proximity of the Dollar
Bank to where Brown was last seen, clearly established
probable cause to arrest Brown as well as the two men with
him. Stubbs was one of those two men. The fact that Brown
and the two men were traveling in an automobile provided
the exigent circumstances to arrest without a warrant. See
Beck, 379 U.S. at 91.11
_________________________________________________________________

11. The agents performed a search of the Chevrolet pursuant to the
arrest of the three men and recovered a number of items, including a

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IV. Conclusion

For the reasons set forth above, the convictions and
judgment of sentence are reversed and this case is
remanded to the district court for a new trial. 12

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
Kaufmann's shopping bag full of money, ski masks, gloves, and
handguns. The agents did not have a search warrant."When a
warrantless search is made pursuant to an arrest,`the constitutional
validity of the search. . . must depend upon the constitutional validity
of
the . . . arrest.' " United States v. Kithcart, 134 F.3d 529, 531 (3d Cir.
1998), quoting Beck, 379 U.S. at 91. As we find the arrest here valid, we
also find that the search incident to the arrest was also valid.

12. Stubbs also appeals the district court's enhancement of his sentence
on Count IV on the grounds that the enhancement runs contrary to the
Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). This argument is meritless. Apprendi makes clear that "[o]ther
than the fact of a prior conviction, any fact that increases the penalty
for
a crime beyond the statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." See Apprendi, 530 U.S. at 490
(emphasis added). Stubbs' sentence was enhanced by a prior conviction,
and thus Apprendi does not apply. See United States v. Weaver, 267 F.3d
231, 251 (3d Cir. 2001).

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