United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-40796
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILBERT SHARUN JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
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Before DAVIS, JONES and GARZA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Wilbert Sharun Jones appeals his conviction for possession
with intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1). Jones challenges the denial
of his motion to suppress evidence found in a search of his
apartment and claims that the district court erred in allowing
him to proceed pro se without providing the required
admonishments, violating his right to counsel under the Sixth
Amendment. Based on the district court’s failure to sufficiently
insure that Jones’ waiver of his right to counsel was knowing and
intelligent, we vacate his conviction. Because we remand and the
motion to suppress is likely to remain at issue in a second
trial, we also examine Jones’ argument regarding the search,
concluding that no Fourth Amendment violation occurred.
I.
Jones and Jamithon Javonne Broussard were indicated for
possession with intent to distribute 50 grams or more of cocaine
base. Jones moved to suppress all evidence seized in connection
with the charge.
At the suppression hearing, Karen Roblin, general manager of
the Lancaster Cornwall Apartments, testified that she and a pest
exterminator entered apartment 234-C and that she saw a spoon
with a white powder residue that she believed was some type of
illegal drug. Jones is the lessee of that apartment. After the
exterminator completed his work, Roblin exited the apartment and
directed the assistant manager, Carolyn Petoskey, and the
groundskeeper, David Cortez, to verify her suspicions. They did
so. Petoskey prepared an eviction notice because it was a
violation of the lease to engage in illegal activity. When she
went to post the notice in the apartment, she asked Clay
Woodward, a police officer who was a resident and served as a
security officer for the complex, to accompany her to confirm her
suspicions regarding the drugs and as a safety precaution. They
entered the apartment together and saw cookies of cocaine base
and tools of the cocaine trade in plain sight in the kitchen.
Petosky was asked not to post the eviction notice until a search
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warrant could be obtained and executed. Woodward called a
narcotics investigator, Erik Kvarme, informed him of what he had
seen and requested that he get a search warrant for the
apartment.
Two police officers arrived at the complex a short time
later and established surveillance on the apartment. Jones and
Broussard arrived at the complex in a tan Cadillac and entered
the apartment. After a short time, they exited the apartment,
proceeded to the Cadillac and attempted to leave the complex. As
the police officers approached the vehicle, it sped away and a
high speed chase ensued. As the Cadillac drove away, Jones was
seen throwing an object from the vehicle, which was recovered by
police and determined to be a crack cocaine cookie. The Cadillac
crashed. Broussard exited the vehicle and threw a bag of crack
cocaine under it. The bag was later recovered. Jones was
arrested as he exited the Cadillac. After the arrest, a
detective executed a search warrant on the apartment and
recovered nine cookies of crack cocaine. The district court
denied Jones’ motion to suppress.
Jones proceeded to trial. On the day before trial, Jones
told the district court that he would rather represent himself
than proceed with appointed counsel. The district court allowed
Jones to represent himself and placed appointed counsel on
standby. Jones was found guilty by the jury and sentenced to 168
months in prison. Jones appeals, with representation.
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II.
Jones, who is represented by counsel on appeal, challenges
the district court’s denial of his motion to suppress and the
admission of the evidence found during the search of his
apartment. In reviewing the denial of a motion to suppress, we
review factual findings for clear error and legal conclusions de
novo. United States v. Hunt, 253 F.3d 227, 229-20 (5th Cir.
2001). Jones concedes that the district court was correct in
finding that the initial entries into the apartment and the
discovery of drugs by Roblin and Petoskey were not under the
color of law but by private citizens. As such no Fourth
Amendment issues are raised with regard to their entry into the
apartment. United States v. Jacobsen, 466 U.S. 109, 113-14
(1984).
Jones argues that Officer Woodward’s entry into the
apartment without a warrant constituted a violation of his Fourth
Amendment rights. This court has held that "a police view
subsequent to a search conducted by private citizens does not
constitute a 'search' within the meaning of the Fourth Amendment
so long as the view is confined to the scope and product of the
initial search." United States v. Runyan, 275 F.3d 449, 458 (5th
Cir. 2001). There is no indication in the record of the
suppression hearing that Officer Woodward performed any search
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beyond the scope of the prior private searches.1 No Fourth
Amendment violation occurred under these circumstances and the
evidence obtained in the search was properly admitted at trial.
III.
Jones also argues that he did not knowingly and
intelligently waive his right to counsel at trial.2 The day
before trial was to commence, Jones’ appointed counsel, Barlow,
informed the court that the defendant may want to represent
himself. The court asked Jones if he did. Jones responded that
he would rather represent himself than have Barlow represent him.
The court told Jones that he would not appoint a different
attorney for him. The court then appointed Barlow as standby
counsel. When Jones asked the court how to get subpoenas and
witnesses, the court told him that he did not practice law and
that Barlow was an “extremely competent A-rated lawyer.” When
Jones asked about discovery, Barlow offered to meet with Jones to
go over the record. The court clarified with Jones and his
mother that Barlow’s fee would be paid by the government. The
government asked the court for a hearing on Jones’ waiver of his
right to an attorney. At that point the court asked Jones to
1
The district court appears to have denied the motion to
suppress on the basis that the entry by Woodward was not under
color of law, but in the company of a private citizen who had the
right to enter. The district court specifically found that the
drugs were in plain view.
2
Jones was represented by retained or appointed counsel for
the motion to suppress and up to the point the trial began.
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confirm that he understood that Barlow would serve without cost
and that he was certified specialist in criminal law, which Jones
did. No formal hearing was held then or later. Jones again
expressed concern that Barlow was not sufficiently familiar with
his case. Barlow confirmed that he was prepared for trial.
Jones indicated to the court that because of the minimal time
that Barlow had met with him, he would represent himself because
he best knew the facts of his own situation.
The next morning, the court asked Jones if he fully realized
that representing himself was dangerous to him. Jones responded
yes. The court asked Jones if he had discussed representing
himself with Mr. Barlow. When Jones responded that he hadn’t,
the court gave Jones an opportunity to confer with Barlow. The
court, while acknowledging Jones’ right to represent himself,
strongly recommended to Jones that he have an attorney. The
judge reiterated his view of Barlow’s qualifications and his
recommendation that he have an attorney. The court again told
Jones that it was absolutely voluntary on Jones’ part whether or
not to have an attorney, that he was not trying to force him, but
that he recommended it highly. After the conference with Barlow,
Jones again stated his decision to represent himself. The court
again appointed Barlow as standby counsel.
Jones argues that the district court failed to give him
adequate warnings about the dangers and disadvantages of self-
representation, as required by Faretta v. California, 422 U.S.
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806 (1975). A defendant in a criminal trial has a Sixth
Amendment right to represent himself, but only when he knowingly
and intelligently chooses to do so. United States v. Joseph, 333
F.3d 587, 589-90 (5th Cir. 2003)(citing Faretta, 422 U.S. at 833-
35). Such constitutional challenges are reviewed de novo.
Joseph, Id. at 589. “A defendant who wishes to waive the right
to counsel 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.” Id. at 590 (citations and internal quotation marks
omitted).
In determining whether a defendant has effectively
waived the right to counsel, the district court must
consider various factors, including the defendant’s
age, education, background, experience, and conduct.
The court must ensure that the waiver is not the result
of coercion or mistreatment, and must be satisfied that
the accused understands the nature of the charges, the
consequences of the proceedings, and the practicality
of waiving the right to counsel.
Id. (citations omitted).
The Benchbook for U.S. District Court Judges, published by
the Federal Judicial Center, provides a guide for questions the
judge can ask to convey the disadvantages the defendant will
likely suffer if he proceeds pro se which is reproduced in the
margin.3 We do not suggest that a district court must follow a
3
The recommended inquiry reads as follows:
(1) Have you ever studied law? (2) Have you ever
represented yourself in a criminal action? (3) Do you
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understand that you are charged with these crimes:
[state the crimes with which the defendant is charged]?
(4) Do you understand that if you are found guilty of
the crime charged in Count I the court must impose an
assessment of $ 50 and could sentence you to as many as
years in prison and fine you as much as $ ? [Ask
defendant a similar question for each crime with which
he or she may be charged in the indictment or
information.] (5) Do you understand that if you are
found guilty of more than one of those crimes this
court can order that the sentences be served
consecutively, that is, one after another? (6) Do you
understand that the U.S. Sentencing Commission has
issued sentencing guidelines that will affect your
sentence if you are found guilty?
(7) Do you understand that if you represent yourself,
you are on your own? I cannot tell you or even advise
you how you should try your case. (8) Are you familiar
with the Federal Rules of Evidence? (9) 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? (10) Are you familiar with the Federal Rules of
Criminal Procedure? (11) Do you understand that those
rules govern the way a criminal action is tried in
federal court? [Then say to defendant something to this
effect:] (12) I must advise you that in my opinion a
trained lawyer would defend you far better than you
could defend yourself. I think it is 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. (13) Now, in
light of the penalty 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? (14) Is your decision entirely
voluntary? [If the answers to the two preceding
questions are yes, say something to the following
effect:] (15) I find that the defendant has knowingly
and voluntarily waived his right to counsel. I
therefore permit the defendant to represent himself
[herself].
United States v. Davis, 269 F.3d 514, 519 (5th Cir. 2001), citing
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script. This court “require[s] no sacrosanct litany for warning
defendants against waiving the right to counsel,” United States
v. Davis, 269 F.3d 514, 519 (5th Cir. 2001), and has approved
warnings much less thorough than the guidelines presented in the
bench book.
For example, in United States v. Joseph, Joseph, like Jones,
expressed a desire to proceed pro se due to lack of confidence in
his counsel. Id. at 590. Also similar to this case, the court
recommended several times that Joseph allow counsel to represent
him because they were very good lawyers. Unlike the facts of
this case, the court in Joseph explained the disadvantages of
self-representation and specifically recommended that Joseph
allow counsel to question witnesses, conduct cross-examination
and put on any evidence on his behalf. Id.
This court has also affirmed a defendant’s waiver of his
right to representation under warnings less than the guidelines
above but which contained practical counsel about the
disadvantages and dangers of self-representation. United States
v. Fulton, 131. Fed. Appx. 441 (unpublished), (5th Cir. 2005).
In Fulton, the court warned the defendant that his case was
“complex”, involved “complex issues” and it was in his best
interest to proceed with appointed counsel. Id. at 442. The
court also warned that the defendant faced a “daunting task” if
Benchbook 1.02 (4th ed. 2000).
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he chose to proceed on his own because he was facing a “very
capable prosecutor.” Id. at 443.
The risk of an off the cuff exchange with the defendant is
that the exchange may end up lacking a sufficient basis on which
we can find that the defendant made a knowing and intelligent
waiver of this important right. In United States v. Davis, we
vacated Davis’ conviction based on our conclusion that district
court’s warnings against self-representation did not satisfy the
requirements of Faretta. 269 F.3d 514, 520 (5th Cir. 2001).
Davis was dissatisfied with his attorney because the attorney
refused to ask witnesses the questions Davis had prepared. The
district court confirmed that Davis wanted to proceed to ask the
questions in spite of his attorney’s advice that asking the
questions and personally participating in the trial was not in
his best interest. The district court also pointed out that by
asking the questions Davis might implicate himself and place him
in an awkward position with the jury and with his attorney. We
concluded that the court’s exchange with the defendant did not
discharge the district court’s responsibility to warn Davis of
the “perils and disadvantages of self-representation.” Id. The
court’s reliance on warnings given by Davis’ counsel were not
sufficient, because Davis no longer trusted him.
In this case, the district court did not counsel Jones about
the dangers of self-representation or expressly consider any of
the Joseph factors. Although the district court recommended to
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Jones that he have an attorney and stated that his appointed
counsel was highly qualified, the district court took no steps,
except in the most general way, to insure that Jones was “aware
of the dangers and disadvantages of self-representation.”
Joseph, 333 F.3d at 590. In addition, the court made no inquiry
into Jones’ education or background to evaluate his fitness for
the task. Neither did the court determine if Jones understood
the nature of the charges against him, the consequences of the
proceedings or the practical effects of waiving his right to
counsel. Id.
Jones’ inquiry regarding the method for obtaining subpoenas
and witnesses and the district court’s response that he would not
help him are insufficient to satisfy the district court’s
obligation to warn the defendant of the practical consequences of
self-representation. Neither was granting Jones the opportunity
to confer with counsel whose performance Jones considered
unsatisfactory. We reiterate this court’s position that “no
sacrosanct litany” of warnings is required. Davis, 269 F.3d at
519. However, when a defendant expresses a desire to represent
himself, the district court must do more to protect the
defendant’s Sixth Amendment right to counsel than repeat its
recommendation that a defendant proceed with his available
qualified appointed counsel.
IV.
For the foregoing reasons, we vacate Jones’ conviction and
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remand this case to the district court for a new trial. VACATED
and REMANDED.
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