2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-22-2013

USA v. Gregory Griswold

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2529

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Recommended Citation

"USA v. Gregory Griswold" (2013). 2013 Decisions. Paper 818.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-2529

_____________

UNITED STATES OF AMERICA

v.

GREGORY GRISWOLD,

 Appellant

_____________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. No. 09-cr-00568-001)

District Judge: Honorable Paul S. Diamond

____________

Submitted Under Third Circuit LAR 34.1(a)

March 21, 2013

____________

Before: FUENTES, CHAGARES and BARRY, Circuit Judges

(Opinion Filed: May 22, 2013)

____________

OPINION

____________

BARRY, Circuit Judge

Gregory Griswold appeals the judgment of sentence for possession of a firearm by 

a convicted felon, in violation of 18 U.S.C. § 922(g)(1). We find that his Sixth 

Amendment rights were violated when the District Court denied his request, made prior 
2

to jury selection, to proceed pro se.

1

 Accordingly, we will vacate the judgment of 

sentence and remand for further proceedings. 

I.

We write principally for the benefit of the parties and therefore recount only those 

facts essential to our review of the issue we reach on appeal. 

On October 17, 2011, two weeks before trial, Griswold filed a motion requesting 

new counsel, which, after a hearing, the District Court denied. Then, on the first day of 

trial, October 31, 2011, prior to the start of jury selection, Griswold asked to proceed pro 

se. Griswold claimed that communications between him and his attorney had broken 

down and he believed his attorney was no longer acting in his best interests. Although, at 

the outset, the District Court was of the opinion that Griswold was seeking to represent 

himself solely to delay the trial, it nonetheless conducted a full Peppers colloquy to 

determine if Griswold made the request to proceed pro se knowingly, voluntarily, and 

with a full understanding of the ramifications and consequences of self-representation. 

At the end of the colloquy, and before granting or denying pro se status, the District Court 

asked Griswold how much time he would need to prepare for trial. Griswold responded 

that it might take a couple of months. The Court then denied Griswold‘s request, 

 

1 Griswold also argues that the District Court erred when it denied his motion to suppress 

physical evidence seized during the search of his apartment. Given our disposition of the 

Sixth Amendment claim, we need not reach the Fourth Amendment issue. 
3

concluding it was made in bad faith merely as a delay tactic.2 The Court confirmed its 

reasoning in a Memorandum Opinion filed December 14, 2011. 

On November 3, 2011, a jury found Griswold guilty of possession of a firearm by 

a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On May 24, 2010, he was 

sentenced to 120 months‘ imprisonment and a three-year term of supervised release. He 

timely appealed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over 

Griswold‘s Sixth Amendment claim. United States v. Stubbs, 281 F.3d 109, 113 n.2 (3d 

Cir. 2002); United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995). 

―The right to counsel embodied within the Sixth Amendment carries as its 

corollary the right to proceed pro se.‖ United States v. Peppers, 302 F.3d 120, 129 (3d 

Cir. 2002); see Faretta v. California, 422 U.S. 806, 819–20 (1975). Because of the risks 

inherent in proceeding without the assistance of counsel, we require that a defendant

―assert his desire to proceed pro se clearly and unequivocally‖ and that the court ―inquire 

thoroughly to satisfy itself that‖ the request is knowing and intelligent and the defendant 

is competent to stand trial. Peppers, 302 F.3d at 132 (internal quotation marks and 

 

2

The District Court appears to have conflated Griswold‘s request to proceed pro se with 

his implicit request for a continuance. The Court denied Griswold‘s request to proceed 

pro se because he had not established ―good cause,‖ the standard used to determine 
4

citations omitted). 

In United States v. Bankoff, 613 F.3d 358 (2010), we held that a defendant 

possesses the right to proceed pro se pursuant to a timely request, assuming, of course,

the Peppers requirements are met—the request was clear and unequivocal, made 

knowingly and intelligently, by a defendant competent to stand trial. Id. at 373. ―A 

request is timely even when made on the  ̳eve of trial.‘‖ Id. (quoting Buhl v. Cooksey, 

233 F.3d 783, 795 (3d Cir. 2000) and citing Gov’t of the V.I. v. James, 934 F.2d 468, 470 

(3d Cir. 1991) (finding timely a request made on the first day of trial, but before jury 

selection)). If the request is untimely, i.e., made after the commencement of trial, the 

right to proceed pro se is no longer absolute, and the district court may, in its discretion, 

deny the request. Id. (recognizing that ―district courts have discretion to deny an untimely 

request to proceed pro se after weighing the prejudice to the legitimate interests of the 

defendant against the potential disruption of proceedings already in progress‖). 

Here, Griswold made a timely request3to proceed pro se, and we are 

satisfied on this record that the Peppers requirements were met. Although the 

District Court may have believed that Griswold‘s request was made to obstruct the 

proceedings and delay trial, 4it did not conclude that the request itself was 

 

whether a continuance should be granted after a defendant requests new counsel. 

Peppers, 302 F.3d at 132. 

3

 Although made on the day of trial, the jury had yet to be empanelled. Bankoff, 613 F.3d 

at 373 (noting a request is untimely if made ―after trial has commenced—i.e . . . . after the 

jury has been empanelled‖).

4 The District Court stated that under Bankoff ―the timing of the request is only one factor 

that a Court must consider‖ and that the Court is ―obligated to balance the prejudice to the 
5

equivocal or that Griswold‘s waiver of counsel was not knowing, voluntary and

intelligent or made by a defendant who was not competent to stand trial. Cf. Buhl 

v. Cooksey, 233 F.3d 783, 797 (3d Cir. 2000) (―A court may conclude that a 

defendant who intends nothing more than disruption and delay is not actually 

tendering a knowing, voluntary and intelligent waiver of counsel, and has not 

unequivocally asserted the constitutional right to conduct his/her own defense‖). 

The Court‘s desire to prevent trial delay is certainly understandable, as is its 

frustration at Griswold‘s last minute decision to proceed pro se. Nevertheless, the 

Court erred by denying Griswold‘s request. 

III.

For the aforementioned reasons, we will vacate the judgment of conviction and 

sentence, and remand for further proceedings. 

 

Defendant‘s legitimate interests against any potential disruption that a self-representation 

request would cause.‖ (J.A. vol. II at 34). This discretionary balancing only occurs, 

however, when the right to proceed pro se is ―curtailed‖ by an untimely request. Bankoff, 

613 F.3d at 373. The request here was timely, and thus the Court should not have reached 

this balancing inquiry.