United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 11, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60138
_____________________
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
TONY LEWIS HODGES,
Defendant – Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:99-CR-23
_________________________________________________________________
Before JOLLY, PRADO, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal requires us to decide, for the first time, what
requirements must be satisfied for a person on supervised release
to waive his right to counsel in a revocation proceeding under
Federal Rule of Criminal Procedure 32.1(b)(2). Following the First
and Seventh Circuits, we hold that, although the waiver need not
meet the formal requirements required by the Sixth Amendment, the
waiver must be knowing and voluntary as demonstrated either through
a colloquy with the district court, or by the totality of the
circumstances, or both. We hold that the totality of the
circumstances, including the colloquy with the court, indicates
that Hodges’s waiver of his right to counsel and his decision to
proceed pro se were knowing and voluntary. Thus we affirm the
judgment of the district court revoking his supervised release.
I
Tony Lewis Hodges was convicted under 18 U.S.C. § 1001(a)(2)
of making false statements to a federal officer regarding an
incendiary device he placed in the work place of a former
girlfriend. On February 24, 2000, Hodges was sentenced to
imprisonment for sixty months, and three years of supervised
release. Hodges completed his term of imprisonment, and began his
supervised release on March 30, 2003.
During his release, Hodges dated a young woman for
approximately five months. Shortly after she terminated the
relationship in October 2004, Hodges began harassing the young
woman by sending partially nude photographs of her over the
internet, calling her on the telephone 400-500 times in just over
a month, coming onto her property and peering in her windows, and
approaching her at work. As a result, the government sought to
revoke Hodges’s supervised release, charging him with: 1) felony
cyber stalking in violation of Miss. Code Ann. § 97-45-14; 2) four
misdemeanor complaints, including two counts of stalking, telephone
harassment, and disturbance of a business; and 3) failing to obey
the instructions of his probation officer to refrain from
contacting the victim and witness in the charged offenses.
The district court appointed the Federal Public Defender as
counsel for Hodges, and scheduled a revocation hearing. On
2
February 8, 2005, just before the hearing began, Hodges’s appointed
counsel, Mr. Jupiter, of the federal public defender’s office,
informed the court that Hodges wished to proceed pro se. After a
brief bench conference the following discussion occurred:
The Court: Mr. Hodges, a petition has
been filed by the probation officer charging
you with violations of the terms of supervised
release. Have you received a copy of that
petition and gone over it?
Mr. Hodges: I’ve read it. I haven’t
gotten a personal copy for myself, but I read
it.
The Court: You have a right to have the
evidence against you disclosed. . . . You
have a right to counsel in this case, that is
a lawyer. Mr. Jupiter has been appointed to
represent you and has prepared for this
hearing. A moment ago he advised that there
was some question about that. Do you want him
to represent you in the case?
Mr. Hodges: I expressed to him a minute
ago that I would rather go pro se.
The Court: All right. I’m confident
that Mr. Jupiter with his law degree and
experience as a lawyer is better able to
represent you than you are to represent
yourself, but you have a right to represent
yourself if you want to do that. Are you
telling me that you do not want Mr. Jupiter to
represent you?
Mr. Hodges: Yes, sir.
The Court: And you’re going to do it
yourself?
Mr. Hodges: Yes, sir.
The Court: Alright, I’m going to relieve
Mr. Jupiter of representing you.
3
Mr. Jupiter: Your Honor, would the court
want me as standby counsel?
. . . .
The Court: Since you are here and
prepared, then you may remain at counsel table
to answer any questions that he might have, if
he has any questions. Mr. Hodges, you, as I
said a moment ago, have the right to have the
evidence disclosed against you. You can
cross-examine the witnesses that are brought
to testify in the case. You can present
testimony in your own defense, including your
own, if you wish to do so. And I have told
you you have the right to counsel, but you
have advised me that you do not wish to have a
lawyer represent you in the case, and I’m
accepting that and agreeing or allowing you to
represent yourself.
Mr. Hodges: Its not a decision I’m
making or anything against Mr. Jupiter. It’s
just something I thought of myself, basically
I’ve given an opportunity to just try to ask
for something that’s –- you know, that’s
pressing on my life that, you know, I would
rather just take it to my own hands and have
the blame for myself.
The Court: All right, sir.
The hearing proceeded with Hodges representing himself. At
the close of the evidence Hodges again affirmed his desires to
represent himself, explaining, “today I wanted to be my own
attorney for the simple fact that I feel like I don’t have a whole
lot of chances left in order to prove myself, in order to defend
myself, in order to stand up for myself . . . .”
At the close of the evidence the district court found that
Hodges had committed each of the charged offenses and sentenced
Hodges to 12 months of imprisonment followed by 24 months of
4
supervised release. Hodges now appeals the revocation on the sole
basis that the waiver of his right to counsel was invalid due to
the failure of the district court to warn him of the pitfalls of
self-representation and the benefits of counsel.
II
Hodges raises only one claim: that the court failed properly
to inform him of the dangers of proceeding without counsel and thus
his waiver of counsel was unknowing and involuntary. Our Circuit
has had many opportunities to discuss and develop the standard for
waiver of a right to counsel in criminal prosecutions, including
trial and sentencing. See, e.g., United States v. Jones, 421 F.3d
359 (5th Cir. 2005) (waiver at trial); United States v. Joseph, 222
F.3d 587 (5th Cir. 2003) (waiver at trial); United States v. Davis,
269 F.3d 514 (5th Cir. 2001) (waiver during trial); McQueen v.
Blackburn, 755 F.2d 1174 (5th Cir. 1985) (waiver during trial).
However, our cases have not addressed the issue in the context of
a revocation proceeding.1 Today, our resolution of Hodges’s appeal
presents two parts: First, an analysis of the proper standard for
waiver of the right to counsel in the revocation setting; and
1
Although United States v. Ross, 503 F.2d 940 (5th Cir.
1974), dealt with the waiver of counsel at a hearing to revoke
probation, the court made clear that because of the particular
circumstances surrounding the proceeding (circumstances not present
here), the “revocation was essentially resentencing.” Id. at 944.
Consequently, the court declined to articulate the standard for
waiver in the revocation context, but rather applied the standards
required of a Sixth Amendment waiver in the context of criminal
prosecutions. Id. at 944-45.
5
second, an evaluation of Hodges’s waiver in the light of that
standard.
A
In the context of a criminal prosecution a defendant who
waives his right to counsel in favor of self-representation “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 his eyes open.”
Joseph, 333 F.3d at 590. Thus, some sort of colloquy with the
district court is required to “warn the defendant against the
perils and disadvantages of self-representation”, to assure that
the waiver is knowing and voluntary. Davis, 269 F.3d at 518. This
requirement is designed to “ensure that the waiver is not the
result of coercion or mistreatment,” making it clear on the record
“that the accused understands the nature of the charges, the
consequences of the proceedings, and the practicality of waiving
the right to counsel.” Joseph, 333 F.3d at 590.
Although warnings by the district court are important, these
same cases make clear that “[w]e require no sacrosanct litany for
warning defendants against waiving the right to counsel. Depending
on the circumstances of the individual case, the district court
must exercise its discretion in determining the precise nature of
the warning.” Id. at 519; see also Jones, 421 F.3d at 363 (“We do
not suggest that a district court must follow a script.”). To be
sure, however, in determining the appropriate warning against self-
6
representation, “ the district court must consider various factors,
including defendant’s age, education, background, experience, and
conduct.” Joseph, 333 F.3d at 590 (internal citations omitted).
These considerations in warning a defendant against self-
representation have been applied in the Sixth Amendment context in
which a defendant faces the initial criminal prosecution, usually
before a jury.
There is, however, a difference between criminal prosecutions,
and revocation hearings, such as the one before us today. The
Sixth Amendment provides a defendant a constitutional right to
represent himself at trial, see Faretta v. California, 422 U.S.
806, 819 (1975). This right to self-representation, however, does
not extend to hearings to revoke parole, United States v. Ramirez-
Perez, 132 F.App’x. 558, 559 (5th Cir. 2005) (citing Scarpelli, 411
U.S. 778; and Loud v. Estelle, 556 F.2d 1326, 1329 (5th Cir.
1977)), or supervised release, United States v. Moore, 116 F.App’x.
544, 545 (5th Cir. 2004). Instead, self-representation in the
revocation context is a matter of discretion vested in the district
court. The right to represent himself asserted by Hodges arises
not under the Sixth Amendment, but under Rule 32.1(b).2 We have
not addressed the adequacy of a waiver in the Rule 32.1(b) context.
Consequently, the question presented in this case is whether, and
2
At argument Hodges’s counsel stated that he was urging
Hodges’s right to counsel only under Rule 32.1(b) and “general
notions of due process.”
7
to what extent we apply the Sixth Amendment standards to a waiver
of the Rule 32.1(b) right to counsel in the context of a revocation
proceeding.
The Supreme Court, although not specifically addressing the
right to counsel, has made clear that “the loss of liberty”
involved in revocation hearings “is a serious deprivation”, even
though such proceedings are not a part of the criminal prosecution
itself. Gagon v. Scarpelli, 411 U.S. 778, 781 (1973) (discussing
Morrissey v. Brewer, 408 U.S. 471 (1972)). Yet, while some
protection is due, “the full panoply of rights due a defendant
[during the criminal prosecution] does not apply to . . .
revocation.” Morrissey, 408 U.S. at 480. Federal Rule of Criminal
Procedure 32.1(b) was promulgated in direct response to the
principles set forth in Morrissey and Scarpelli. Designed to
achieve proper protection given the unique procedural setting, Rule
32.1 guarantees a defendant in a proceeding to revoke parole,
probation, or supervised release, certain procedural protection --
including the right to notice of the right to counsel.3 See Fed.
3
Federal Rule of Criminal Procedure 32.1(b) provides:
(b) Revocation.
. . . .
(2) Revocation Hearing. Unless waived by
the person, the court must hold the revocation
hearing within a reasonable time in the
district having jurisdiction. The person is
entitled to:
(A) written notice of the alleged
8
R. Crim. P. 32.1(b)(2); see also United States v. Correa-Torres,
326 F.3d 18, 22-23 (1st Cir. 2003) (internal citations omitted)
(noting that the protections of Rule 32.1 “serve a variety of
interests” including “safeguard[ing] the defendant’s obvious stake
in preserving his liberty”, and “the sovereign’s more nuanced
interest in ensuring that important legal determinations are
informed by an accurate account of verified facts.”). While this
rule helps to clarify the specific rights and procedural safeguards
due a defendant at the revocation juncture, it leaves open the
question of the appropriate standard by which to measure a
defendant’s waiver of the Rule’s protections.
In addressing this issue in the light of Morrissey and
Scarpelli, the First, Second, Seventh and Ninth Circuits have all
agreed that waivers of the rights protected by Rule 32.1 must be
knowing and voluntary. See Correa-Torres, 326 at 22 (“waiver of
[Rule 32.1] rights . . . cannot be effective unless that waiver is
violation;
(B) disclosure of the evidence against
the person;
(C) an opportunity to appear, present
evidence, and question any adverse witness
unless the court determines that the interest
of justice does not require the witness to
appear;
(D) notice of the person's right to
retain counsel or to request that counsel be
appointed if the person cannot obtain counsel;
and
(E) an opportunity to make a statement
and present any information in mitigation.
9
made both knowingly and voluntarily”); United States v. Pelensky,
129 F.3d 63, 68 n.9 (2d Cir. 1997) (“a defendant’s waiver must
actually be knowing and voluntary”); United States v. LeBlanc, 175
F.3d 511, 515 (7th Cir. 1999) (waiver must be “knowing and
voluntary”); United States v. Stocks, 104 F.3d 308, 312 (9th Cir.),
cert. denied, 522 U.S. 904 (1997) (“the Rule 32.1(b) rights at
issue require the application to a waiver of the knowing,
intelligent, and voluntary standard”). To determine if a waiver of
these rights is knowing and voluntary, both the First and Seventh
Circuits have declined to require rigid or specific colloquies with
the district court, adopting instead a “totality of the
circumstances” standard:
Ideally, the district court, when
confronted with an attempted waiver, will
advise the . . . person on supervised release
of both the rights afforded him . . . and the
consequences of a relinquishment of those
rights. Because we are mindful that
revocation proceedings are more informal than
criminal prosecutions, we do not prescribe any
particular mantra. Instead, we . . . hold
that, notwithstanding the requirement that
waivers of procedural rights with respect to
revocation hearings must be knowing and
voluntary, such waivers need not be
accompanied either by any magic words or by a
formal colloquy of the depth and intensity
required under Federal Rule of Criminal
Procedure 11.
This protocol has real significance for
purposes of appellate review. Where, as here,
. . . a person on supervised release mounts a
retrospective challenge to the validity of a
wavier . . . , a reviewing court should look
not only to the punctilio of the sentencing
court’s colloquy with the probationer, but
10
also to the totality of the attendant
circumstances.
The totality of the circumstances means
exactly that – all the circumstances should be
considered. . . . These include evidence that
sheds light upon the target’s comprehension of
the charges against him and evidence as to his
appreciation of the nature of the rights
afforded him by Rule 32.1. In the final
analysis, however, courts should beware of
assigning talismanic significance to any
single fact or circumstance.
Correa-Torres, 326 F.3d at 23; see also LeBlanc, 175 F.3d at 517.
Because this “totality of the circumstances” standard will provide
a practical truth appropriate for the more informal, non-jury
proceeding, we apply this standard. Although a thorough colloquy
with the district court may be the most precise means of evaluating
the voluntariness of a waiver, the failure of the district court to
engage in a comprehensive colloquy is not, of itself, fatal to the
defendant’s waiver. We thus hold that the waiver of a defendant’s
Rule 32.1(b) rights is knowing and voluntary (1) where there is a
sufficient colloquy by the district court to assure an
understanding or freely made waiver; or (2) where the colloquy
leaves some uncertainty, the totality of the circumstances assures
that the waiver is knowing and voluntary. Given this standard, we
turn now to examine Hodges’s waiver.
B
Although the district court did inform Hodges of certain legal
and procedural rights that he was due, and did express to him the
court’s belief that Hodges would be better off if represented, it
11
did not engage in a full colloquy expressing the benefits of
counsel or the pitfalls of self-representation. Although it is
appropriate to consider the district court’s expressions of concern
about Hodges’s ability to represent himself, the colloquy alone is
not adequate to demonstrate a knowing and voluntary waiver. Thus
we must look at and evaluate the totality of the circumstances.
The facts surrounding Hodges’s waiver convince us that he was
aware of the consequences of his actions, and that there was no
coercion or mistreatment motivating his request to proceed pro se.
In reaching this conclusion we rely on the following evidence:
First, Hodges was aware of the nature of the charges against him
and the penalty he faced. Hodges expressed not only an
understanding of the purpose and possible repercussions of the
hearing, at one point in the hearing he specifically noted that the
facts alleged against him constituted a class B violation under 18
U.S.C. § 3583 for which he could be sentenced under the “advisatory
[sic] statutory guidelines”.
Second, Hodges had been warned, by the district court, and by
his own counsel, that self-representation was not in his best
interest. In addition to the district court’s comment that Hodges
would be much better off with counsel, the record indicates that
Hodges had some discussions with his counsel about self-
representation prior to informing the district court of his desired
waiver. Indeed, Hodges’s appointed counsel took time between the
bench conference that preceded the hearing and the hearing itself
12
to again warn Hodges of the effect of his proposed waiver and the
benefits of counsel.
Third, although clearly not skilled as a legal professional,
Hodges was familiar with the criminal process or the rights and
procedures surrounding revocation. By the time of the revocation
hearing Hodges had been through several formal court appearances
and a jury trial. These experiences allowed him to see the nature
of legal proceedings. Additionally, the district court, on at
least two separate occasions in the proceeding, explained to Hodges
his rights relating to the hearing: specifically, that he could
call witnesses, cross-examine witnesses, testify on his own behalf,
and know of the evidence against him.
Fourth, Hodges’s former counsel had prepared for the hearing
and remained available to assist Hodges throughout the proceeding.
Early in the hearing the district court instructed Hodges’s counsel
to remain, and allowed Hodges to consult with his former counsel
throughout the hearing. The transcript of the hearing indicates
several points at which Hodges did in fact consult with his former
counsel.
Finally, there is no evidence or indicia of coercion,
gamesmanship, or improper forces at play in Hodges’s decision to
represent himself. Hodges expressed no dissatisfaction with his
appointed counsel, nor did he express any other reason or
13
motivation for self-representation other than a desire to “do this
on my own.”4
Considering the evidence as a whole we find that Hodges’s
waiver of his right to counsel was knowing and voluntary.
III
For the reasons stated above we hold that a waiver of the
rights provided by Rule 32.1 is effective where it is knowing and
voluntary. In the revocation setting, a waiver is knowing and
voluntary where it is either supported by an adequate colloquy with
the district court, or by the totality of the circumstances, or
both. Based on the record in this case, we find that the totality
of the circumstances, including the colloquy with the court,
indicates that Hodges’s waiver of his right to counsel at his
revocation hearing was knowing and voluntary. Consequently, the
judgment of the district court is
AFFIRMED.
4
Just prior to the hearing Hodges’s counsel approached the
bench and notified the district court of Hodges’s desire to proceed
pro se. Hodges’s counsel told the court that he had been unable to
secure a witness, Hodges’s employer, whom Hodges wanted to testify
at the hearing. Although unsure of Hodges’s exact reasoning, Mr.
Jupiter speculated that his inability to secure that witness may
have motivated Hodges to seek self-representation. Hodges himself
indicated on the record that he was satisfied with his counsel, but
wanted to do things on his own. During the hearing Hodges
proffered the testimony of the unavailable witness, and the
district court accepted the proffer.
14