dissenting:
I respectfully dissent.
This case presents the classic trial court dilemma involving pro se representation. The trial judge was faced with the difficult decision of accepting the defendant’s waiver and being reversed under Dujanovic or rejecting the waiver and being reversed under Faretta. In this case, the trial court *1251accepted the firm, unequivocal demand of the defendant after patiently hearing him out, both in prior pretrial proceedings held months earlier and before and throughout the trial itself. He continued the appointment of trial counsel, who appeared at every proceeding, actively participated in the examination of witnesses, initiated critical motions and rigorously advanced the defendant’s position at an extended competency hearing during the course of the trial itself. The defendant had whatever advantages accruing to his interest under Faretta together with all the advantages appointed counsel could bring to his case. A complete review of the record indicates he had a full and fair trial; that he was treated with patience and courtesy by the trial judge throughout the proceedings and that, in effect, he had the best of both worlds. In my opinion, to reverse his conviction in these circumstances would be an exaltation of form over substance and a dilution of the holdings of Hodge and Cooley.
Hodge v. United States, 414 F.2d 1040, 1043 (9th Cir. 1974) (en banc), holds that we must look to the whole record in determining whether a defendant’s waiver of his right to counsel was knowingly and intelligently made.
Cooley v. United States, 501 F.2d 1249 (9th Cir. 1974) and United States v. Gillings, 568 F.2d 1307 (9th Cir. 1978) agree that no particular interrogation, exchange or litany need be utilized in assuring that the defendant has in fact made an intelligent waiver. Although as a matter of good practice a trial judge “shall not grant a request to waive counsel and proceed pro se without addressing the accused personally and determining on the record that the demand to waive counsel and proceed pro se is competently and intelligently made with understanding of the nature of the charge and the penalties involved”, United States v. Dujanovic, 486 F.2d 182, 186 (9th Cir. 1974), a failure to conduct an interrogation of this nature is not, per se, reversible error. Cooley v. United States, supra, 501 F.2d at 1252.
An evaluation of the whole record and the reasonable inferences which may be drawn therefrom shows that Aponte’s waiver of his right to counsel was knowingly and intelligently made. Aponte was no stranger to the legal process when he entered his waiver in open court. He had had an opportunity during the January 1977 competency hearing to witness a legal proceeding first-hand and to appreciate its intricacy and formality. He had had an opportunity to observe the role of counsel in an adversary proceeding. There is every reason to suppose that at the time Aponte indicated his intention to waive his right to counsel he was fully cognizant of the hazards of proceeding pro se. With respect to Hodge’s requirement that an accused understand the charges against him in order to competently waive his right to counsel, the Clerk’s Record shows that at the waiver of removal hearing on November 10, 1976, Magistrate Richard S. Goldsmith of the United States District Court for the Northern District of California informed Aponte that he was charged with the offense of bail-jumping and failure to appear in Arizona.1 Under these circumstances, the requirements articulated in Hodge and Cooley for competent waiver of the right to assistance of counsel were met.
Even if the waiver was incompetent under the foregoing standards, the error was in any event harmless under the rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Once the narrow and technical rules regarding competency of waiver are put to one side and the adequacy of Aponte’s representation is assessed, it is manifest that the combined efforts of Aponte and Velasco (defendant’s “sideline counsel”) secured full and fair representation to the accused. Velasco, whom Aponte fired and who remained at counsel table during trial to furnish assistance from time to time, actively aided in the presenta*1252tion of Aponte’s defense. At the commencement of trial, Velasco assisted Aponte in exercising peremptory juror challenges. On two occasions, after Aponte was offered and declined an opportunity to cross-examine a prosecution witness, Velasco conducted cross-examination in Aponte’s behalf. The record shows that Velasco prompted Aponte to move to dismiss the indictment at the close of the government’s case. When Aponte took the stand and gave narrative testimony, the court afforded him the opportunity to confer with Velasco relative to government objections to his testimony. At the close of the defense case, Velasco advised the court that Aponte should move for a directed verdict of acquittal. The court inquired of him whether he wished to move for a directed verdict of acquittal. Aponte responded in the affirmative and the court directed that the record show the motion. Velasco and Aponte agreed that Velasco would object to any irrelevant arguments advanced by the prosecutor during the course of his summation. The court further offered to permit both Aponte and Velasco to argue to the jury. At the conclusion of trial, Velasco tendered forms of verdict for consideration by the court for submission to the jury.
Perhaps most significant of all is the fact that Velasco exercised his independent professional judgment on behalf of Aponte. After Aponte had “moved” for a directed verdict, as related above, Velasco moved for a mistrial on the grounds of insanity despite Aponte’s evident reluctance to embark on this course. The court then proceeded to hold a competency hearing during which Aponte completely deferred to Velasco with respect to the calling, examination and cross-examination of witnesses. It would surely be egregious error to maintain that Aponte was not effectively represented by counsel during the competency hearing; it would be equally egregious, given the facts related above, to hold that Aponte was deprived of effective representation during the trial.
Of significance also is the precise repetition of events before this court: the defendant has fired his appellate counsel (in the same manner as he fired his trial counsel), filed his own appellate brief and wishes to proceed pro se. Accordingly, this court is placed in the same untenable position as the trial court. It is not beyond the realm of possibility that by refusing to give full effect to Aponte’s desire to proceed pro se and to ignore the brief submitted by appellate counsel (thus relying solely upon Aponte’s brief), this court is itself faced with its own Faretta problem with all of its underlying ramifications.
For the reasons stated, I would affirm the judgment below.
. It might be additionally noted that bail-jumping is a relatively straightforward offense easily comprehensible by lay persons.