* District Judge of the Southern District of Mississippi,

sitting by designation.

1 REVISED NOVEMBER 7, 2001

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 00-20538

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GLEN M. DAVIS, also known as Glen Davis,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court for the Southern

District of Texas, Houston

___________________________________________________ October 4, 2001

Before DAVIS and JONES, Circuit Judges, and BARBOUR, * Distr ict

Judge.

W. EUGENE DAVIS, Circuit Judge:

Glen Davis challenges his conviction for narcotics

trafficking. Davis contends that his Sixth Amendment right to

counsel w as violated because the district court did not

sufficiently warn Davis of the perils of self-representation, and

therefore Davis did not make a knowing and intelligent waiver of2

his right to counsel. For the reasons that follow, we agree that

Davis did not receive adequate warnings. We therefore vacate the

conviction and remand for a new trial.

I.

Davis was tried on a one-count indictment for possession with

intent to distribute five kilograms or more of cocaine in violation

of 21 U.S.C. 841(b)(1)(A). During the trial, Davis became

dissatisfied with his lawyer’s performance. After testimony by the

ninth government witness, Davis asked to speak with the d istrict

court judge. Although Davis’s attorney, Gerald Fry, advised Davis

not to speak on the record, Davis insisted. Davis told the court

that he had spent considerable effort preparing a list of questions

for the witnesses, but Fry had refused to ask any of them. Davis

said, “If he’s not going to help me, let me help myself....It’s up

to me now. He said he’s not going to use [my questions].... If

he’s not going to help me ... then you don’t need me here. Y’all

can have this trial wit hout me.” The court responded that “We

can’t have it without you. We can have it without your lawyer,

though.”

The court then announced that it would permit Davis to

supplement Fry’s examination of w itnesses by asking his own

questions after Fry had finished. The court also excused Fry from

makin g or responding to objections on Davis’s behalf while Davis2 THE COURT: You have been advised by your counsel that he does

not believe that it’s in your best interest not only to ask

those questions b ut to participate in the trial. Hasn’t he

told you that?

DAVIS: Yes, sir.

***

THE COURT: All right. In spite of that advice, you’re

choosing to ask those questions yourself?

DAVIS: Yes, sir.

THE COURT: And to disregard his advice?

DAVIS: Yes, sir.

The court then inquired into Davis’s mental and drug history,

learning that Davis had been treated for drug addiction eight years

earlier. This series of questions followed:

THE COURT: You believe, I gather, that you are capable of

asking these questions without implicating yourself?

DAVIS: Yes, sir.

T HE COURT: And if the answers implicate you, do you

understand

... that that puts you in an awkward position–

DAVIS: Yes, sir, I do.

THE COURT: – with the jury?

DAVIS: Yes, sir, I do.

THE COURT: And also with your attorney?

3 examined witnesses.

The court advised Davis that “If you choose to disregard your

counsel’s advise, I will permit you to ask the very questions that

... your lawyer chooses not to ask.” The court later had an

additional exchange with Davis reflected in the margin. 2DAVIS: Yes, sir, I do.

THE COURT: And you will not be able to simply to stand up

and throw a temper tantrum if somebody doesn’t ask some

question the way you want or [do not], or says something

that you believe is provocative fromyour perspective.

You understand that, don’t you?

DAVIS: Yes, sir.

4 The court permitted Davis to recall and quest ion three

g overnment witnesses who Fry had already cross-examined. When

Davis finished and the government was ready to call its next

witness, the court altered the hybrid arrangement. Instead of

allowing Davis to question witnesses af ter Fry had finished, the

court directed that only one person examine further witnesses. The

court required Davis and Fry to agree between themselves who would

examine each witness.

Under this arrangement the trial proceeded to its conclusion.

Davis cross-examined nine government witnesses and questioned two

defense witnesses on his own. Fry only questioned one government

witness and two defense witnesses under the hybrid arrangement. Of

the nineteen witnesses examined by the defense at trial, Davis

questioned fourteen. Fry made objections to the Government’s

questioning of one witness; responded to offers of government

exhibits; assisted Davis in making a proffer of a witness’s

potential testimony; and moved for acquittal after the Government

rested, but not at the close of all the evidence. Both Davis and

Fry gave closing arguments.2 422 U.S. 806 (1975)

.

3 Id. at 835 (citation omitted).

5 The jury found Davis guilty and the court imposed a life

sentence. Following Davis’s conviction and sentence, he lodged

this appeal. Davis’s primary argument on appeal is that he was not

adequately warned by the district court of th e perils and

disadvantages of self-representation. He argues that as a result

he did not knowingly waive his Sixth Amendment right to counsel.

II.

In Faretta v. California

, 2 the Supreme Court held that the

Sixth Amendment entitles a crimin al defendant to forgo the

assistance of counsel and represent himself. The Court said that

the defendant must make this choice “knowingly and intelligently”:

“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’ forgo those

r e linquished benefits.” 3 In order for a waiver to be knowing and

intelligent, th e trial judge must warn the defendant against the

perils and disadvantages of self-representation.

Although a defendant need n ot 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 disadvantages of self-representation, so that the

record will establish that “he knows what he is doing and his4 Id. (citation omitted).

5 The district court was quick perhaps too quick to interpret

Davis’s expression of dissatisfaction with his lawyer as a request

to represent himself. As we said in Moreno v. Estelle :

[A] defendant’s request to be relieved of counsel in the form

of a general statement of dissatisfaction with his attorney’s

work does not amount to an invocation of the Faretta right to

represent oneself, especially when made on the mornin g of

trial.

Moreno , 717 F.2d 171, 176 (5th Cir. 1983). The better course for

the district court would have been to respond to Davis’s complaints

against h is lawyer rather than suggesting that Davis could

represent himself. After the district court made this suggestion,

Davis adopted it. We therefore proceed from the premise that Davis

made a Faretta request to represent himself.

6 790 F.2d 1215 (5th Cir. 1986)

.

7 Id. at 1218 (internal citations omitted).

6 choice is made with eyes open.” 4

The question here is whether Davis made a sufficiently knowing and

intelligent choice to represent himself, and this turns on whether

the judge sufficiently warned Davis of the dangers of waiving his

right to counsel. 5

In U nited States v. Martin

, 6 this court outlined in some

detail what a trial judge must do before granting a defendant’s

request for self-representation.

[T]he trial judge must caution the defendant about the dangers

of such a course of action so that the record will establish

that “he knows what he is doing and hi s choice is made with

eyes open.” In order to determine whether the right to

counsel has been effectively waived, the proper inquiry is to

evaluate the circumstances of each case as well as the

background of the defendant. 78 Id. (internal citations omitted).

9 See, e.g., Chapman v. U.S.

, 553 F.2d 886, 892 (5th Cir. 1977)

(“a trial judge should engage in a dialogue with such a defendant,

explaining to him the consequences of defending pro se. ”).

10 See, e.g., Neal v. Texas, 870 F.2d 312 , 315 n. 3 (5th Cir.

1989); Martin

, 790 F.2d at 1218 ; Wiggins v. Procunier, 753 F.2d

1318, 1320 (5th Cir. 1985); Taylor v. Hopper

, 596 F.2d 1284 (5th

Cir. 1979); Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1980).

11 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 per se :

(1) Have you ever studied law?

(2) Have you ever represented yourself in a crim inal

action?

(3) Do you understand that you are charge d with these

7 In particular, the district court must consider various factors,

including

the defendant's age and education, and other background,

experience, and conduct. The court must ensure that the

waiver is not the result of coercion or mistreatment of

the defendant, and must be satisfied that the a ccused

understands the nature of the charges, the consequences

of the proceedings , and the practical meaning of the

right he is waiving. 8

This court has consistently required trial courts to provide

Faretta warnings. 9 We re-affirm what our decisions make clear: we

require no sacrosanct litany for warning defendants against waiving

the right to counsel. 10 Depending on the circumstances of the

individual case, the district court must exercise its discretion in

determining the precise nature of the warning. 11crimes: [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 i n 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 issue d 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 f ound guilty, and in light of all of the

8difficulties 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 defen dant has knowingly and

voluntarily wai ved his right to counsel. I therefore

permit the defendant to represent himself [herself].

Benchbook 1.02 (4th ed. 2000).

12 See McKaskle v. Wiggins, 465 U.S. 168, 168 (1984); Myers v.

Johnson

, 76 F.3d 1330, 1335 (5th Cir. 1996) (“there is no

constitutional right to hybrid representation”); Neal v. Texas, 870

F.2d 312, 315-16 (5th Cir. 1989) (same).

13 3 Wayne R. LaFave et al., Criminal Procedure § 11.5(g) (1999

& 2001 supp.).

9 The Government argues that this case is not controlled by

Faretta because this case involves “hybrid representation” of a

sort that the Supreme Court has strongly implied is permissible –

but has said is not required

– u nder F aretta

. 12 LaFave, however,

suggests in his work on criminal procedure that “Under a hybrid

form of representation, defendant and counsel act, in effect, as

co-coun sel, with each speaking for the defense during different

phases of the trial.... Of course, since hybrid representation is

in part pro se representation, allowing it without a proper Faretta

inquiry can create constitutional difficulties.” 13

“Hybrid” or no, the representation sought by Davis entailed a

waiver of his Sixth Amendment right to counsel that required the14 Id. at 834 n.46.

15 U.S. v. Taylor , 933 F.2d 307, 312 (5 th Cir. 1991).

16 See Moreno , 717 F.2d at 176.

17 Davis p resents one other argument for appeal. He argues

that the district court’s refusal to subpoena his son was an abuse

of discretion. Davis asked the court to fly his son from Ohio to

10 safeguards s pecified in F aretta

. The F aretta Court stated that

“[o]f course, a State may

– even over objection by the accused –

appoint a ‘standby counsel’ to aid the accused if a nd when the

accused requests help, and to be available to represent the accused

in the event that termination of the defend ant’s selfrepresentation is necessary.” 14 Standby assistance of counsel,

however, does not sat isfy the Sixth Amendment right to counsel.

“The assistance of standby counsel, no matter how useful to the

court or the defendant, cannot qualify as the assistance of

counsel, required by the Sixth Amendment.” 15

III.

The district court was not obliged to honor Davis’s mid-trial

request to represent himself. 1 6 Once it determined to do so,

however, it was required to warn Davis of the perils and

disadvantages of self-representation. The district court failed to

discharge this responsibility. The court’s reliance on the

warnings against self-representation given by Davis’s counsel, Fry,

whom Davis no longer trusted, was not sufficient. 17Houston so that he could testify that one of several documents was

in his hand-writing. Davis’s mother was in Houston, however, and

she could have identified Davis’s son’s hand-writing. The district

court did not abuse its discretion in denying this request.

11 Because the trial court’s warning against self-representation

did not satisfy Faretta , Davis’s Sixth Amendment right to counsel

was violated. We therefore must vacate Davis’s conviction and

remand for a new trial.

VACATED and REMANDED.