dissenting,
ll respectfully dissent. Carroll McFadden wab undoubtedly an intractable defendant, unwilling to cooperate with his court-appointed attorney and mistrustful of the trial judge. The Sixth Amendment requires, however, that the accused in a criminal trial be afforded effective assistance of counsel unless he knowingly and voluntarily waives his right to such aid. This constitutional mandate is not relaxed when a defendant is difficult to deal with. The district judge’s task of determining whether the accused has made an effective waiver is frequently intricate, particularly when, as here, the defendant has misgivings about the court and unclear about his own desires. But while I understand the problems that confronted the trial judge in this case, I must conclude that McFadden did not competently waive his Sixth Amendment right to the assistance of counsel. Accordingly, in my view his conviction was obtained in violation of his constitutional rights and must be reversed.
The facts of the case are set out in detail in the majority opinion, and need be recounted here only briefly. After his arrest on February 16, 1979, McFadden requested appointment of counsel on his behalf. Thomas S. White of the Federal Public Defenders Office was selected to represent McFadden, and continued in this capacity until April 18, when he filed a motion to withdraw. The motion, citing “irreconcilable differences” with the accused, was granted, and Donald D. Rossetti was appointed new counsel. On July 19, four days before the scheduled start of trial, Rossetti filed a motion to withdraw, stating that his relationship with McFadden had deteriorated to the point where it would be impossible for him to represent the defendant adequately or effectively. At a lengthy hearing conducted on July 23, the trial judge allowed Rossetti to withdraw.1 He also ruled that McFadden was to proceed to trial in two days and was to represent himself, with Robert Lackey of the Federal Public Defenders Office as advisory counsel. Trial began on July 25. McFadden conducted his own defense, although Lackey made opening and closing remarks on his behalf. On July 30, McFadden was convicted and sentenced.
The Sixth Amendment guarantees that any person brought to trial must be accorded the right to the assistance of counsel. The majority concludes that McFadden competently waived this constitutional right. While the Supreme Court has long recognized that an accused may forego his right to counsel,2 a valid waiver must be made “in the exercise of a free and intelligent choice, and with the considered approval of the court.”3
In its recent holding in Faretta v. California that a state may not deny an accused the right “to proceed without counsel when he voluntarily and intelligently elects to do *978so,”4 the Court stressed that the decision to dispense with counsel must be the deliberate and well-informed choice of the accused:
When 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-representation, he should be made aware of the dangers and disadvantaged of self-representation.5
The Supreme Court has placed on the trial judge “the serious and weighty responsibility ... of determining whether there is an intelligent and competent waiver by the accused.”6 And the Court made it clear in Von Moltke v. Gillies that a trial judge must conduct a thorough inquiry before accepting a defendant’s decision to proceed without an attorney:
To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must 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 of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.7
In the present case, both Rossetti and the prosecutor expressed concern at the July 23 hearing that, without competent coup,sel, McFadden would be denied effective representation. In reply to the trial judge’s opening remarks that if McFadden did not wish to continue with Rossetti as his lawyer, he could proceed to trial without counsel, Rossetti commented:
MR. ROSSETTI: [T]o speak for a moment on [McFadden’s] behalf, not as a client of mine but as a defendant in a criminal case, he nonetheless — regardless of problems he and I had which make it impossible in my view to represent him, regardless of those problems, he is still entitled to the assistance of counsel and the effective assistance of counsel.
And after the suggestion that McFadden proceed without counsel had been put forward, Webb, the prosecuting attorney, made the following remarks:
MR. WEBB: The government has a concern that if the case is forced to trial in this posture, that there will be no effective representation by competent counsel. . My concern is that we not do something here that is totally meaningless and that will come back on appeal.
Especially after such serious doubts regarding McFadden’s ability to proceed pro se had been articulated, the district judge should have made a “penetrating and comprehensive examination” to ensure that McFadden knew what was at stake in representing himself. But at no time during the July 23 hearing was McFadden sufficiently alerted to the complexity of pro*979ceeding without a lawyer.8 The district judge did not apprise him of the need to be familiar with the rules of evidence, with the proper manner of making objections, with the acceptable method of questioning witnesses, or with any of the other elements of preparing a defense and conducting a trial.9 Also, the trial judge did not ascertain whether McFadden understood the nature of the charges, the possible defenses, the range of possible punishments, or the other factors that the Von Moltke Court deemed essential to a competent and intelligent waiver.10 It is not enough, as the majority suggests, that McFadden knew that he had a right to counsel; the issue rather is whether he comprehended the full implications of a forfeiture of that right. As the Supreme Court has declared, an accused may waive his constitutional right to assistance of counsel only “if he knows what he is doing and his choice is made with eyes open.”11 When, as here, no steps are taken to ensure that the accused understands the consequences of foregoing the assistance of an attorney, the accused cannot be said to make a knowing waiver.
The record also casts doubt on whether any decision on McFadden’s part to proceed without professional assistance was made voluntarily. At no time during the July 23 hearing was McFadden asked if he wished to waive his right to counsel, nor was the trial judge willing to entertain Rossetti’s suggestion that another attorney be appointed to replace him as the defendant’s representative. Instead, the district judge opened the proceedings on July 23 by presenting McFadden with a choice between continued representation by Rossetti (who by his own admission could no longer adequately represent the accused) and self-representation.12 Further, nothing in the *980record suggests that McFadden was warned before July 23 that a replacement counsel would not be appointed to represent him if Rossetti’s motion to withdraw was granted. McFadden thus had no reason to know before the hearing that Rossetti constituted his last chance to have a court-appointed attorney.
Missing, too, at the July 23 hearing was an opportunity for McFadden to make a calm and rational decision about how he wanted to be represented. The proceedings abounded with numerous heated exchanges between McFadden and the court,13 and the district judge, before the hearing was over, understood McFadden to have chosen to act on his own behalf at his trial. But I do not believe that a “waiver” by a defendant in McFadden’s position can be said to have been voluntarily made unless the accused was afforded a reasonable opportunity to reflect dispassionately about the decision he was being called upon to make. Without time for thought, a defendant like McFadden, untutored in the law and pressured by the court, can hardly be expected to insist on his right to be assisted by an attorney.
Under these circumstances, even had McFadden evinced a desire to act as his own counsel, there would be serious questions concerning the voluntariness of his choice. McFadden’s conduct at the July 23 hearing did not, however, unambiguously manifest such a decision. At one point the defendant indicated that he wished to represent himself,14 while just a few minutes *981later he requested the court to appoint an attorney to handle his defense.15 I doubt whether McFadden’s comments at the July 23 hearing can fairly be understood as a request to proceed without counsel.
Although I believe that McFadden did not knowingly and voluntarily waive his rights under the Sixth Amendment, I recognize that serious and complicated issues are presented when, as here, an accused and his court-appointed counsel develop irreconcilable differences. Certainly, a court cannot tolerate a disingenuous malcontent who creates confusion in order to delay the start of trial. Here, however, Rossetti insisted that McFadden’s objections to his representation were not contrived to delay the start of trial. Further, I express no opinion whether a court is ever required to appoint successive attorneys to represent a defendant who is dissatisfied with the court’s earlier choices. In particular, I do not reach the question whether the trial judge in this case would have been required to appoint an attorney to replace Rossetti. Rather, my concern is that there is no basis for concluding on the record here that McFadden knowingly and voluntarily waived the right to counsel that is guaranteed by the Sixth Amendment. That being the case, as I view it, MeFadden’s conviction was obtained in violation of his constitutional rights and should be reversed.
. The difficulties between McFadden and Rossetti arose from McFadden’s insistence that his attorney file motions to reduce bond and to suppress evidence. Both Rossetti and the district judge who presided at the July 23 hearing characterized these maneuvers as “useless.” Rossetti also indicated that McFadden had threatened to sue him if his trial did not result in acquittal, although McFadden denied this.
. See Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
. Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942). The Supreme Court has held in other contexts as well that a waiver of a constitutional right, to be valid, must be made by the accused personally, with knowledge both of the right and of the consequences of waiver. See, e. g.. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (right to have counsel present during questioning in custodial setting); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (same).
. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975) (emphasis deleted).
. Id. at 835, 95 S.Ct. at 2541 (citations omitted).
. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
. Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948).
. The trial judge suggested to McFadden the importance of having competent counsel only after ruling that McFadden would have to conduct his own defense:
THE COURT: 1 cannot impose on [another attorney] the full responsibility for the trial of your case because it is too short a time for that. The responsibility falls on you.
You have had two lawyers appointed in a row, and for some reason you just can’t get along with them. Whether it is their fault or your fault, I don’t know.
But I can only tell you that your only salvation is to listen to the advice of the lawyers.
It is also significant that, after he had accepted Rossetti’s motion to withdraw, the district judge commented that it would not be easy for McFadden to represent himself.
THE COURT (addressing McFadden): Now it is obvious that you don’t know very much about what to do, and I’m sorry about that. We don’t like to do that [i. e., have defendants represent themselves], but we have twice had lawyers appointed for you and you just don’t get along with them.
. The problems that defendants who proceed pro se encounter were summarized by Mr. Justice Sutherland in Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932):
Even the intelligent and educated laymen has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.
. The magistrate before whom McFadden appeared after his arrest on February 22, 1979 apparently did notify him of the offenses with which he was charged and the punishments those crimes carried. As Von Moltke makes clear, however, a defendant’s waiver of the right to counsel is made knowingly only if he apprehends the charges and possible punishments at the time the waiver is made. See Von Moltke v. Gillies, 332 U.S. at 724, 68 S.Ct. at 323. A magistrate’s explanation, made five months before defendant’s purported waiver, would not appear to be an acceptable substitute for the searching inquiry required by Von Moltke and Johnson v. Zerbst to be made by the trial judge.
. Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942).
. The July 23 proceedings began with the following remarks by the trial judge:
THE COURT: Mr. Rossetti, we have your motion to withdraw. Although it contains a good deal of serious matters concerning yourself, there is no reason here for the postponement of trial.
Counsel has been afforded to this defendant. If he does not wish to take advantage of *980counsel, that’s his fault, and he can go to trial without counsel then.
At various points later in the hearing the judge reminded McFadden that if he was to be represented at trial at all, it would have to be by Rossetti:
THE COURT: Now it is unfortunate that you can’t get along with Mr. Rossetti, because you were very fortunate in having Mr. Rossetti appointed. He is one of the most experienced and one of the best criminal defense lawyers we have here.
But if you can’t get along with him and he just says he can’t possibly do anything for you in view of your attitude, then you have blown it.
Because the initiative to proceed pro se came from the trial judge and not the accused, the present case is very different from Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), on which the majority relies. Faretta establishes that a defendant has the constitutional right to proceed pro se when he elects to do so, but it in no way relaxes the standard for determining whether an accused has effectively waived his right to the assistance of counsel. The defendant in Faretta repeatedly requested to be allowed to represent himself; the question for the Supreme Court was whether the Sixth Amendment includes a right of self-representation. In contrast, the suggestion to proceed without counsel in the instant case was advanced not by the defendant McFadden but by the district judge. The record does not even indicate that McFadden requested Rossetti to resign as his counsel; the attorney’s motion to withdraw was apparently made on his own initiative, based on his own judgment that he could no longer provide McFadden with effective representation. Faretta does not suggest that a defendant can be compelled to proceed pro se when his court-appointed attorney withdraws from his defense.
. The following colloquy conveys the tense atmosphere of the July 23 hearing:
THE COURT: Here, we are at this point: You have had two counsel. You fought with both of them.
MR. McFADDEN: Your Honor, I did not fight with both counsel. I don’t appreciate the Court’s telling me I fought with them. I talked with Mr. White on two occasions. He withdrew through a letter.
What kind of conversations did we have?
THE COURT: Whatever you did, both those counsel, who regularly represent persons in this Court, feel it is impossible to represent you. So, therefore, I can only—
MR. McFADDEN: Do you feel it is impossible?
THE COURT: I can only come to one conclusion: that it is impossible to get along with you.
MR. McFADDEN: That’s prejudicial on behalf of the Court.
THE COURT: Yes.
MR. McFADDEN: Very.
THE COURT: It is a conclusion I make. I am making very clearly.
MR. McFADDEN: Yes, sir.
THE COURT: I am telling you.
MR. McFADDEN: It’s an error.
THE COURT: I am telling you.
MR. McFADDEN: It’s an error.
THE COURT: Oh, it’s an error. That’s fine. You are going to be a real smart lawyer.
. The transcript contains the following exchange:
MR. ROSSETTI: Judge, I cannot represent this man, and I don’t see that you can—
*981THE COURT: Who else can? Nobody else can.
MR. McFADDEN: I will represent myself, Your Honor,
THE COURT: And his attitude—
MR. McFADDEN: I will represent myself.
. Despite McFadden’s statement during the exchange with Rossetti and the district judge that he would represent himself, his intentions remained unclear, prompting the following exchange:
THE COURT: I don’t know what [McFadden] is requesting. I don’t have the slightest idea what he is requesting.
MR. McFADDEN: All I request is you get me a lawyer that will listen to what I’m saying and apply what I’m saying to the Court.