# United States Court of Appeals

**For the Eighth Circuit**

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No. 15-2319

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Michael Fiorito

lllllllllllllllllllll Petitioner - Appellant

v.

United States of America

lllllllllllllllllllll Respondent - Appellee

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Appeal from United States District Court

for the District of Minnesota - Minneapolis

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Submitted: March 16, 2016

Filed: May 3, 2016

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Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

Michael Fiorito pl eaded guilty to one count of mail fraud. While awaiting

sentencing and against the advice of counsel, Fiorito file d several letters requesting

to withdraw his guilty plea. The district court 1 granted Fiorito’s request and released

1 The Honorable Paul A. Magnuson, United St ates District Court for the District

of Minnesota. As discussed below, Judge Magnuson subsequently recused, and thehim from the plea agreement. Fiorito proceeded to trial and was convicted. He filed

a motion collaterally attacking his conviction pursuant to 28 U.S.C. § 2255, arguing,

inter alia

, that the di strict court violated his Sixth Amendment right to counsel by

considering and granting his pro se request to withdraw his guilty plea without first

conducting a hearing under Faretta v. California

, 422 U.S. 806 (1975). The district

court rejected Fiorito’s c laims but granted a certificate of appealability on the

following question: “Was Fiorito deprived of his Sixth Amendment right to counsel

when [the district court] granted Fiorito’s pro se request to withdraw his guilty plea?”

We hold that he was not, and we therefore affirm.

I.

I n June 2007, a grand jury indicted Fiorito for three counts of mail fraud and

one count of conspiracy to commi t mail fraud. The case was assigned to Judge

Magnuson.

A fter extensive negotiations with his c ounsel, the Government presented Fiorito

with two alternative plea offers: a “deter minate deal” and an “indeterminate deal.”

Under either, Fiorito would plead guilty to one count of mail fraud and the remaining

counts would be dismissed. In addition, the Government would recommend a threelevel downward adjustment for acceptance of responsibility under USSG § 3E1.1 if

Fiorito “fully acknowledge[d] complete responsib ility for the offense of conviction

and all relevant conduct.” Beyond these common features, however, the plea offers

differed significantly.

Under the determinate offer, the parties would not dispute the application of the

sentencing guidelines. Instead, Fiorito would stipul ate to a guidelines range of 100-

case was assigned to the Honorab le Patrick J. Schiltz, United States District Court for

the District of Minnesota.

-2-125 months, and the Governm ent would recommend a sentence of 100 months’

imprisonment. The indeterminate offer, in contrast, permitted Fiorito to object to

assertions in the presentence investigation report (“PSR”) regarding his conduct and

the application of the guidelines. Under this offer, the Government could attempt to

show at the sentencing hearing that Fiorito’s offense level under the guidelines was

sig nificantly higher than the offense level stipulated under the determinate offer.

Against the advice of counsel, Fiorito chose the indeterminate offer.

After Fiorito pleaded guilty, the probation office issued a PSR that included a

two-level enhancement for obstruction of justice, prop osed no reduction for

acceptance of responsibility, and calculated a guidelines range of 151-188 months’

i mprisonment. Fiorito objected to virtually all the factual assertions and guidelines

calculations in the PSR. The district court scheduled an evidentiary hearing regarding

these disputes.

In an attempt to avoid an extensive evidentiary hea ring, the Government

extended an offer to resolve the PSR disputes under conditions similar to the

determinate offer Fiorito had earlier rejected. Specifically, the Government offered

“to enter into a supplemental stipulation” in which the parties would recommend a

sentenc e of 100 months’ imprisonment. In addition, the Government would

r ecommend that this sentence be served concurrently with a 120-month te rm of

imprisonment that Fiorito already was serv ing as a result of an unrelated state

conviction. If Fiorito did not accept this offer, the Government warned that it would

ask the court to impose a consecutive sentence at the top of the applicable guidelines

range.

Fiorito regarded the Government’s ultimat um as a breach of the plea agreement.

The Government denied that it was in breach, noting that the agreement required the

Government to recommend the acceptance-of-responsibility reduction only if Fiorito

“fully acknowledge[d] complet e responsibility for the offense of conviction and all

-3-relevant con duct.” The Government contended th at it had the right to refuse to

recommend the reduction under the indeterm inate agreement because Fiorito, in his

objections to the PSR, denied that he had committed any of the conduct alleged in the

indictment.

Fiorito, his counsel, and the Government contacted the district court numerous

times about this dispute. Fiorito’s counsel filed a motion seeking to enforce the plea

agreement or, in the alternative, to withdraw the guilty plea. That same day, Fiorito

wrote a letter to the district court requestin g to withdraw his plea due to the

Government’s breach. The Government responded and urged the court to let Fiorito

withdraw his plea because he denied engaging in any of the conduct charged in the

indictment.

Before the district court could respond to any of these documents, Fiorito’s

counsel filed a motion to withdraw the previous motions to withdraw Fiorito’s guilty

plea. However, this motion reiterated Fiorito’s position that the Government was

breaching the plea agreement and sought enforcement of it. The Government denied

that it was in violation of the agreement but again urged the court to allow Fiorito to

withdraw his guilty plea. The district court denied th e motion to enforce, noting that

the Government had not violated the agreement. In its order, the court warned that if

Fiorito continued to deny responsibility, the court would “ sua sponte reject the Plea

Agreement and order [Fiorito] to stand trial.”

The next da y, Fiorito wrote a second letter to the district court requesting to

withdraw his guilty plea, and the Government again agreed t hat Fiorito should be

allowed to do so. Several weeks later, Fiorito sent a third letter to the court requesting

to withdraw his guilty plea. After receiving the third lette r, the district court requested

that Fiorito’s counsel write a letter explaining the situation. Fiorito’s counsel reported

that their relationship had become strained and that Fiorito had instructed him to file

another motion to withdraw on the ground that his initial decision to plead guilty had

-4-been the result of a miscommunication regarding the plea agreement. Counsel refused

to file that motion, however, because he did not believe that there had been an y

miscommunication.

Without conducting a hearing, the district court gra nted Fiorito’s request to

withdraw his guilty plea. In its order, the court stated:

It appears to the Court that [Fiorito] is asserting that he is innocent of the

crimes charged in the Indictment. Moreover, the Government has agreed

that [he] should be permitted to withdraw his guilty plea and the case

should go to trial. Thus . . . the Court finds that [he] has established the

requisite “fair and just reason” to withdraw his plea of guilty.

The following day, Judge Magnuson recused from the case, and the case was assigned

to Judge Schiltz.

Several months after withdrawing his guilty plea, Fiorito wrote to the court and

asked the court to appoint new counsel or, in the alternative, to permit him to proceed

pro se

. After conducting a F aretta hearing, the district court granted Fiorito’s request

to proceed pro se and appointed his lawyer as standby counsel.

Fiorito represented himself at trial and was convicted on all counts. The district

court sentenced him to 270 months’ imprisonment, imposed consecutively to his state

sentence. We affirmed his conviction and sentence on direct appeal. U nited States

v. Fiorito , 640 F.3d 338, 353 (8th Cir. 2011).

Fiorito filed a motion to vacat e, set aside, or correct his sentence under 28

U.S.C. § 2255, raising seventeen grounds for relief. After a four-day evidentiary

hearing, the district court denied Fiorito’s motion.

-5-II.

Fiorito argues that he was deprived of his Sixth Amendment right to counsel

because Judge Magnuson allowed him to withdraw his guilty plea, without a hearing

and against the advice of counsel, on the basis of his pro se requests. We review for

clear error the district court’s findings of fact follow ing an evidentiary hearing held

on a § 2255 motion. L aird v. United States , 987 F.2d 527, 529 (8th Cir. 1993). We

review de novo the ultimate conclusion of whether the defendant’s Sixth Amendment

rights were violated. T homas v. United States

, 737 F.3d 1202, 1206 (8th Cir. 2013). 2

The Sixth Ame ndment protects a defendant’s right to counsel at all “‘critical

stages’ in the criminal justice process.” M aine v. Moulton

, 474 U.S. 159, 170 (1985).

It also protects a defendant’s right to waive his right to counsel and to represent

himself. F aretta

, 422 U.S. at 835-36. Because a defendant exercising his right to

represent himself “necessarily relinquishes the usual benefits associated with the right

to counsel,” he must make a knowing and intelligent waiver. U nited States v. Yagow

, 953 F.2d 427, 430 (8th Cir. 1992). A waiver is undertaken knowingly and

intelligently where a defendant is “made sufficiently aware of his right to have counsel

and of the possible consequences of a decision to forego the aid of counsel.”

Bumgarner v. Lockhart

, 920 F.2d 510, 512 (8th Cir. 1990) (quoting Meyer v. Sargent

,

854 F.2d 1110, 1114 (8th Cir. 1988)). The purpose of conducting a F aretta hearing

is to ensure that a defendant’s waiver is knowing and intelligent by warning the

defendant “of the dangers and disadvantages of self-rep resentation.” Bilauski v.

Steele

, 754 F.3d 519, 522 (8th Cir.), cert. denied

, 574 U.S.

---, 135 S. Ct. 294 (2014)

(quoting Faretta , 422 U.S. at 835).

2 On appeal, the Government argues that this claim is procedurally barred

because Fiorito did not raise the claim on direct appeal. See Becht v. United States

, 403 F.3d 541, 545 (8th Cir. 2005). However, procedural default is an affirmative

defense, which the Government waived when it failed to raise the issue in the district

court. See United States v. Brewer , 766 F.3d 884, 887 n.2 (8th Cir. 2014).

-6-A defendant does not have a constitutional right “to simultaneously proceed pro

se and with the benefit of counsel.” U nited States v. Agofsky

, 20 F.3d 866, 872 (8th

Cir. 1994) (emphasi s added). However, district c ourts have discretion to permit

“hybrid representation” arrangements whereby a defendant takes over some functions

of counsel despite being represented. U nited States v. Summage

, 575 F.3d 864, 876

(8th Cir. 2009). The district court concluded that Fiorito had proceeded under a

hybrid representation scheme when he contacted Judge Magnuson directly to request

to withdraw his plea despite being represented by counsel.

Such hybr id representation arrangements create significant problems in

analyzing the i ssue of waiver of counsel. Wher e a defendant seeks to represent

himself entirely without a lawyer, he must knowingly and intelligently waive his right

to counsel. F aretta

, 422 U.S. at 835. However, courts of appeals analyzing hybrid

representation arrangements have disagreed as to when a defendant’s conduct triggers

the waiver of his right to counsel. C ompare United States v. Leggett

, 81 F .3d 220,

224 (D.C. Cir. 1996) (ho lding that defendant in hybr id representation arrangement

does not waive his right to counsel unless he makes “an articulate and unmistakable

demand

. . . to proceed pro se ”) with United States v. Turnbull

, 888 F.2d 636, 638 (9th

Cir. 1989) (holding that defendant must knowingly and intelligently waive his right

to counsel before he assumes any of the “core functions” of counsel). Further, courts

that have held that a waiver is necessary for hybrid representation hav e disagreed

about what procedures are required before a defendant’s w aiver is knowing and

intelligent. While some courts have required F aretta w arnings any time a hybridrepresented defendant waives his right to counsel, see, e.g.

, United States v. Davis

,

269 F.3d 514, 518-20 (5th Cir. 2001), we have held that such warnings are not

required when “the defendant ha d the required knowledge [about the dangers of

proceeding pro se ] from other sources.” Yagow , 953 F.2d at 431.

This brings us to Fiorito’s claim. He asserts that withdrawing a guilty plea is

a “critical stage” of the proceedings and that moving to withdraw a plea constitutes

-7-a “core function” of counsel. Therefore, despite retain ing counsel, Fiorito argues that

the district court permitted him to waive his right to counsel by ruling on his p ro se

letter requesting to withdraw h is plea. Fiorito claims that the court was required to

hold a Faretta hearing before granting his requests to ensure that his purported waiver

of counsel was knowing and intelligent. According to Fiorito, because the court erred

by failing to hold this hearing to warn him about the dangers of proceeding pro se

, he

was deprived of his Sixth Amendment right to counsel and must be returned to the

position he would have been in had no such deprivation occurred. 3

We reject two premises that Fiorito relies upon for his ar gument. First, the

mere fact that the district court considered Fiorito’s letters requesting to withdraw his

guilty plea did not necessarily render him unrepresented. Fiorito was represented by

counsel, who repeatedly advised him not to withdraw his guilty plea. Fiorito made the

personal decision to ignore this advice and withdraw his guilty plea; as the defendant,

he maintained the “ultimate authority to ma ke certain fundamental decisions regarding

the case,” including whether to plead guilty. S ee Thomas v. United States

, 737 F.3d

1202, 1207 (8th Cir. 2013) (quoting Jones v. Barnes

, 463 U.S. 745, 751 (1983)); see

also United States v. Plitman

, 194 F.3d 59, 63 (2d Cir. 1999) (distinguishing between

“personal” decisions, which a defendant must make, and “strategic” or “tactical”

decisions, which counsel can make without a defendant’s consent). Because Fiorito

was represented by counsel and received counsel’s advice, he did not waive his right

to counsel, and the district court had no duty to conduct a Faretta hearing. S ee Stano

v. Dugger

, 921 F.2d 1125, 1147 (11th Cir. 1991) (rejecting claim that defendant was

entitled to Faretta warnings when he pleaded guilty against the advice of counsel);

United States v. Pouport

, 565 F. App’x 53, 55 (2d Cir. 2014) (holding that defendant

3 Fiorito argues that he was deprived of his right to counsel only at the plea

withdrawal stage, not at trial. The district court held a Faretta hearing before

allowing Fiorito to proceed pro se at trial to ensure that he knowingly and intelligently

waived his right to trial counsel.

-8-did not waive his right to counsel by filing and litigating a pro se motion to withdraw

his guilty plea because his counsel continued to represent him for all other purposes).

Second, Fiorito’s argument fails even if we assume that he was unrepresented

and proceeded pro se when he sought to withdraw his guilty plea. The remaining flaw

in Fiorito’s argument is his assertion that a Faretta hearing is always required when

a defendant waives his right to counsel. The Supreme Court has rejected the bright

line rule Fiorito advances:

[W]e have taken a more pragmatic approach to the waiver

question—asking w hat purposes a lawyer can serve at the particular

stage of the proceedings in question, and what assistance he could

provide to an accused at that stage—to determine the scope of the Sixth

Amendment right to counsel, and the type of warnings and procedures

that should be required before a waiver of that right will be recognized.

Patterson v. Il linois , 487 U.S. 285, 298 (1988). The st age of the proceedings thus

affects the type of advisement necessary to make a waiver valid. The Court has

required mo re rigorous warnings about the usefulness of counsel when a defendant

“require[s] aid in coping with legal problems or assistance in meeting his adversary.”

United States v. Ash

, 413 U.S. 300, 313 (1973). At one end of the spectrum, the

Supreme Court has held that a defendant who spoke with police officers after being

indicted had knowingly and intelligently waived his right to counsel for purposes of

post-indictment quest ioning because he received M iranda warnings before being

questioned. P atterson

, 487 U.S. at 298-99. At the other end, the Court has required

trial courts to convey detailed warnings about the disadvantages of proceeding pro se

before allowing a defendant to waive his ri ght to counsel at trial. F aretta

, 422 U.S.

at 835-36. “The information a defendant must possess in order to make an intelligent

election [to proceed without counsel] . . . will depend on a range of case-specific

factors, including the defendant’s education or sophistication, the complex or easily

-9-grasped nature of the charge, and the stage of the proceeding.” I owa v. Tovar

, 541

U.S. 77, 88 (2004).

Every court of appeals that has considered the question has conclud ed that a

plea withdrawal hearing is a “critical stage” of the proceedings. H ines v. Miller

, 318

F.3 d 157, 167 (2d Cir. 2003) (Winter, J., dissenting) (collecting cases). However,

these cases all involve appeals from th e denial of the defendants’ p ro se motions to

withdraw their guilty pleas. S ee, e.g.

, United States v. Joslin , 434 F.2d 526, 529-30

(D.C. Cir. 1970). And the courts analyzing waiver in this context have focused on the

importance of having counsel assist the defendant during a plea-withdrawal hearing.

See, e.g.

, United States v. Vigil

, 605 F. App’x 757, 762 (10th Cir. 2015) (“At the pleawithdrawal hearing, a defendant can benefit from counsel because the attorney would

understand how to navigate the substantive and procedural challenges, such as the

grounds for withdrawal and the examination and cross-examination of witnesses.”).

Here, Fiorito did not need assistance from counsel—or a warning from the court

about the dangers of proceeding without counsel—in litigating an adversarial hearing

on his request to withdraw. The Government agreed that Fiorito should be allowed

to withdraw his guilty plea, and the court’ s decision to grant the motion without an

evidentiary hearing obviated the need to warn Fiorito about the diffic ulty of

representing himself at such a hearing. Fiorito thus cannot “articulate with precision

what additional information should have been provided to him before he would have

been competent to waive his right to counsel” for purposes of convincing the court to

grant his motion to withdraw his plea. See Patterson , 487 U.S. at 294. 4

4 Fiorito claims that his success in movi ng to withdraw is irrelevant because

“structural errors” violating the Sixth Am endment are not subject to harmless error

review. This argument puts the cart before the horse. We do not apply harmless error

here. Instead, we consider the success of Fiorito’s efforts—and the absence of a

hearing requiring assistance from counsel—only to determine whether a Sixth

Amendment violation occurred in the first place. See Patterson , 487 U.S. at 298

-10-A lthough he did not need assistance from counsel in litigating his request to

withdraw his plea, Fiorito argues that he was deprived of his right to counsel because

he was not sufficiently informed about whether he should have attempted to withdraw

his guilty plea in the first pl ace. According to Fiorito, he was not aware of the

significantly higher penalties he might face if he proceeded to trial. Had the district

court conducted a Faretta hearing before considering his request, Fiorito argues, the

court could have en sured that he knew of the pot ential sentencing range and also

understood the danger of making a plea decision without the advice of counsel.

Fiorito’s argument fails. We will uphold a waiver of counsel absent specific

warnings when “the record as a whole demonstr ates ‘that the defendant knew and

understood the disadvantages of self-representation.’” U nited States v. Crawford , 487

F.3d 1101, 1105-06 (8th Cir. 2007) (quoting United States v. Stewart , 20 F.3d 911,

917 (8th Cir. 1994)). The record clearly shows that Fiorito’s alleged waiver was

knowing and intelligent. First, Fiorito understood his right to counsel. At his original

plea hearing, where he pleaded guilty, Fiorito confirmed that he understood his right

to be represented by a lawyer at every stage of the proceedings. S ee Meyer

, 854 F.2d

at 1114-15 (relying on instruction from probation revocation hearing to find that

defendant understood his right to counsel); U nited States v. Willie

, 941 F.2d 1384,

1389 (1 0th Cir. 1991) (relying on defendant’s a rraignment to find that waiver was

valid).

Second, the record from Fiorito’s four-day evidentiary hearing on h is § 2255

motion shows that he understood the danger of abandoning his plea agreement. His

lawyer repeatedly advised him against withdrawing his plea and warned him that he

would receive a substantially longer sentence if he went to trial. Even if his counsel

did n o t inform Fiorito of the precise sentencing range applicable absent the guilty

(holding that procedures required to ensu re valid waiver will vary based on “what

purposes a lawyer can serve at the particular stage of the proceedings in question, and

what assistance he could provide to an accused at that stage”).

-11-plea, the circumstances show that Fiorito had sufficient knowledge to make an

informed choice whether to withdraw his plea. S ee United States v. Turner

, 644 F.3d

713, 721-22 (8th Cir. 2011) (holding that waiver was valid even though defendant was

not warned about statutory range of charged offenses). As the district court found:

Fiorito was undoubt edly aware—with some degree of specificity—of the

risk s he faced. Fiorito is very smar t; he gets into trouble because he

lacks self control, not because he lacks intelligence. Fiorito is also the

most legall y savvy non-lawyer who has appeared before this Court.

Time and again, he has pr oven himself capable of researching,

understanding, and arguing sophisticated legal issues, and (as noted) he

reviews every jot and tittle of every document relevant to his case.

See Bumgarner

, 920 F.2d at 512-13 & n.4 (considering defendant’s knowledge of the

proceedings t o support conclusion that defe ndant understood the dangers of

self-repre sentation). Thus, even if he waived his right to counsel, we conclude that

Fiorito did so knowingly and intelligently. S ee Meyer

, 854 F.2d at 1114-15 (holding

that waiver of trial counsel was knowing and intelligent, despite lack of F aretta

warnings, where defendant understood his right to counsel and knew of the dangers

of self-representation).

Fiorito also faults the district court for “failing to inquire about the breakdown

in the att orney-client relationship and the conflict between c ounsel and client.” He

argues that this conflict of interest stemmed from his counsel’s failure to inform him

properly about the plea agreement. The plea agreement was structured to (1) allow

Fiorito to contest many of the facts alleged by the Government, and (2) require the

Government to recommend a three-level reduction for acceptance of responsibility if

Fiorito “fully acknowledge[ d] complete responsibility fo r the offense of conviction

and all relevant conduct.” Fiorito argues that these benefits were mutually exclusive

because his denial of many of the Govern ment’s allegations allowed the Government

to refuse to recommend the acceptance- of-responsibility reduction. According to

Fiorito, his counsel provided ineffective a ssistance by failing to warn him that he

-12-could not contest the Government’s alle gations while simultaneously demanding a

reduction for acceptance of responsibility. A nd because his attempt to withdraw his

guilty plea was based in part on this allegation of inade quate representation, Fiorito

asserts that his counsel had an actual conf lict of interest such that the court was

required to conduct a hearing regarding this conflict.

We disagree. Fiorito did not move for appointment of new counsel until several

months after he withdrew his guilty plea, and his complaints about counsel in his

letters to Judge Magnuson did not warrant further inquiry from the court. We agree

with the district court that these letters did not indicate a conflict of interest, and we

therefore reject Fiorito’s claim that J udge Magnuson erred by fa iling to investigate

Fiorito’s relationship with his counsel. See United States v. Davidson , 195 F.3d 402,

407 (8th Cir. 1999) (“There is no obligation on a trial court to l ook into a defendant’s

representation unless it becomes aware of ci rcumstances that would require further

investigation.”).

III.

For the foregoing reasons, we affirm the judgment of the district court.

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-13-