IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10003

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JAMES MICHAEL LONG

Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

The government charged James Michael Long with four counts of wilfully

failing to file income tax returns, contrary to 26 U.S.C. § 7203. After a trial on

the merits, the jury found Long guilty of all four counts. Long, represented on

appeal by the Federal Public Defender’s Office, appeals on two grounds. First,

Long contends that the district court wrongfully denied him his right to

represent himself. See Faretta v. California, 95 S. Ct. 2525, 2532 (1975). 

Second, he contends that the trial court erred in denying his pro se motion to

dismiss based on the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). We affirm the

district court for the reasons stated below.

United States Court of Appeals

Fifth Circuit

F I L E D

February 19, 2010

Charles R. Fulbruge III

Clerk

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BACKGROUND

On April 1, 2008, the United States Attorney filed in United States

District Court for the Northern District of Texas, Lubbock Division, a bill of

information charging Long, allegedly a resident of Plainview, Texas (which is

within that division), with four counts of violating 26 U.S.C. § 7203 by wilfully

failing to file his federal income tax returns for each of the respective calendar

years 2001 (count 1), 2002 (count 2), 2003 (count 3), and 2004 (count 4), although

he had gross income in excess of approximately $65,000 in 2001, $80,000 in

2002, and $188,000 in 2003 and 2004 each. On the same day, a summons issued

out of the Lubbock Division requiring Long to appear before the court on April

23, 2008 in reference to the information. On April 30, 2008, the government

filed in the Lubbock Division a motion to issue an arrest warrant for Long,

alleging that he had never appeared, and that the summons had not been served

on him although “[n]umerous attempts have been made to locate the defendant,

all to no avail.” The same day Magistrate Judge Koenig of the Lubbock Division

granted the motion and the arrest warrant was issued. On May 22, 2008,

apparently in the Fort Worth Division of the Northern District of Texas, Long

was arrested pursuant to the warrant and, after being brought before pretrial

services in Fort Worth, he was brought before Magistrate Judge Bleil of the Fort

Worth Division for his initial appearance on the April 1, 2008 bill of information.

Also present was Assistant Federal Public Defendant Fleury to represent Long.

At this hearing, Long, among other things, purported to fire Fleury, his

public defender attorney. Judge Bleil then orally announced that Fleury was

“appointed to represent Mr. Long, understanding, Mr. Fleury, that he doesn’t

wish to have your representation, I will consider this as stand-by

representation.” Judge Bleil further stated to Fleury “while you’re in Fort

Worth, you’re [sic] responsibilities as stand-by counsel are to assist Mr. Long if

he asks for your assistance in any way.” However, Judge Bleil’s May 22, 2008

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 Judge Bleil’s May 22, 2008 written order that Long be “detained pending further court 1

proceedings” recites, inter alia, that “[t]he defendant [Long] refused to talk with probation

officers about his background, employment, address or any pertinent information. . . . The

defendant also was bizarre in his conduct, seemed irrational, and expressed a lack of

recognition of any authority over him”

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written order appointing “the Federal Public Defender’s Office of this District”

as counsel for Long in the case makes no mention of being stand-by counsel or

the like.

At the May 22 hearing Judge Bleil also orally ordered that Long “be

detained pending further court proceedings finding that you are a risk of

nonappearance and without any information concerning you due to your lack of

cooperation with the probation officer” and that “you’re a danger to others.”1

Finally, Judge Bleil, at the May 22 hearing, orally directed Long be

“transported to the Lubbock Division of the Northern District of Texas.” Long

was transferred to Lubbock, and on May 23, 2008, Assistant Federal Public

Defender Kime-Goodwin entered her written appearance in the Lubbock

Division in this case as representing Long.

Long’s next appearance was on June 25, 2008, before Magistrate Judge

Koenig in the Lubbock Division. Again, Long purported to fire his public

defender attorney. In response, Judge Koenig set a Faretta hearing for August

25th, 2008 to determine whether Long knowingly and intelligently waived his

right to counsel. At the August 25 hearing, Long refused to cooperate with

Judge Koenig. For example, Long refused to answer any questions and

requested a side bar conference with the judge. When the judge told Long that

he needed to state his issues on the record, or talk to a pretrial services officer

to determine whether he could be released on bond or his own recognizance or

could retain counsel or could proceed pro se, Long refused and requested to

postpone the hearing. The judge postponed the Faretta hearing for two days.

At the August 27 hearing, Long again refused to cooperate. Judge Koenig once

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more postponed the hearing to September 3. Again, Long refused to cooperate.

At the September 3 hearing Judge Koenig had the bill of information read to

Long, and ordered that a not guilty plea be entered for him. 

Judge Koenig referred Long to District Judge Cummings for the Faretta

hearing. At a pretrial hearing on October 6, 2008, before trial commenced later

that day, Long appeared with Assistant Federal Public Defendant KimeGoodwin, who informed the court that she had requested the pretrial hearing

because Long had said “he fired our office” and “essentially said that he wished

to represent himself” and that she believed that accordingly he should “be

advised of Faretta warnings by this court.” Thereafter, at the request of Long,

attorney Kime-Goodwin moved for a continuance of the trial which Judge

Cummings denied. Judge Cummings accordingly then asked the defendant

whether he wished to represent himself. Long responded, “No, sir.” Long was

thereafter tried and convicted on October 6, 2008. At sentencing on December

30, 2008, Long’s attorney Kime-Goodwin informed the court that Long wished

to fire her. Long attempted to speak up, but the district judge told him to wait

his turn. When the judge allowed Long to speak, Long stated only, “For the

record, Your Honor, your offer of contract is accepted for value and returned with

consideration for discharge, settlement, and closure.” Judge Cummings

sentenced Long to thirty-seven months in prison (consecutive sentences of twelve

months on each of counts 1, 2 and 3 and one month on count 4) and concurrent

one year terms of supervised release on each count. No fine was imposed;

restitution to the United States of $93,484.69 was ordered.

ANALYSIS

I. Right to Self-Representation

A defendant has a right to represent himself at trial. Faretta, 95 S. Ct. at

2532. An impermissible denial of self-representation cannot be harmless.

United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008). The defendant must

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knowingly and intelligently forego his right to counsel, and must clearly and

unequivocally request to proceed pro se. Id. If the right to counsel is to be

waived, the trial court must conduct a Faretta hearing, cautioning the defendant

about the dangers of self-representation and establishing, on the record, that the

defendant makes a knowing and voluntary choice. Id. Nevertheless, the

defendant may waive his right to self-representation through subsequent

conduct indicating an abandonment of the request. Id. There is no

constitutional right to hybrid representations whereby the defendant and his

attorney act as co-counsel. Id.

A. Long Did Not Clearly and Unequivocally Request to Proceed Pro Se

United States v. Cano gives an example of a clear and unequivocal waiver

of the right to counsel. In Cano, the defendant asked the court to dismiss his

counsel and allow him to represent himself, stating that he wanted to “invoke

his Constitutional Right to Self-Representation as to the matters before the

court.” Id. The court found that request to clearly and unequivocally assert the

right to self-representation. Id. Like Cano, Long indicated to Magistrate Judge

Koenig that he is “the attorney in fact” when the judge asked him at the June 25,

2008 hearing who he wanted to replace the public defender. At the June 25

hearing, Long filed a document purporting to fire the public defender and

granting himself the power of attorney. Moreover, the magistrate judge

understood that Long sought to represent himself because she ordered a Faretta

hearing in response to Long’s statements. Compounded on this are Long’s

several statements that if “any[one]” thought they represented Long, “they were

fired.” Unlike Cano, however, Long never clearly or expressly asserted either his

right to represent himself or that he wanted to proceed pro se.

Many cases suggest that something more than just firing one’s attorney

is required before one clearly and unequivocally requests to proceed pro se. E.g.,

Moreno v. Estelle, 717 F.2d 171, 174–75 (5th Cir. 1983). “[T]he right to counsel

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is in force until waived, [and] the right to self-representation does not attach

until asserted.” Id. at 174 (quoting Brown v. Wainwright, 665 F.2d 607, 610 (5th

Cir. 1982) (en banc)) (emphasis in original). Moreno found that the defendant

did not waive his right to counsel because he told the court he wanted to fire

counsel without explicitly informing the court that he wished to proceed pro se.

Id. at 174–75. Next, in Burton v. Collins, 937 F.2d 131, 133–34 (5th Cir. 1991),

this court found no clear and unequivocal wavier where a defendant informed

the judge he wanted to fire his attorney and asked, “May I represent myself?”

Burton, 937 F.2d at 132. The court interpreted Burton’s question as an inquiry

into the possible alternatives available. Id. at 134. 

Finally, United States v. Ibarra is an unpublished opinion of this court the

facts of which are somewhat similar to those in the instant case. No. 05-50934,

2007 WL 807038, at *2 (5th Cir. 2007). There, Ibarra’s attorney told the trial

court Ibarra “may prefer to represent himself.” Id. at *1. After Ibarra stated the

that he would not cooperate even if appointed another attorney, the following

exchange took place:

“[Defense Counsel]: Would the Court entertain a motion to allow

Mr. Ibarra to proceed pro se?

THE COURT: No. Don't give him any ideas.

[Defense Counsel]: Well, he already has the idea, Your Honor. I wish

I could take credit for giving himTHE COURT: He's already convicted himself [in a letter to the

court], quite frankly. Anything he says is going to be-is not going to

make any difference. I may find as a matter of law he's not a citizen.

Period....

THE COURT: June the 20th. You will represent him. And don't give

him any ideas about pro se. It's bad enough having a fool for a

client.

IBARRA: Sir,-Your Honor can I say a word? . . . I am 30 years old

and I don't want nobody to represent me. So I want you just to give

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your final decision or decisions because I don't want to waste my

time.

THE COURT: What do you mean you want a decision? Are you

pleading guilty?

IBARRA: I don't want him. I don't need no attorneys. I already tell

you that[.]”

Id. at *2 (emphasis in original). Citing Burton, the panel found that there were

competing reasonable interpretations attributable to the defendant’s inquiry into

whether he could represent himself. Id. at *3 (citing Burton, 937 F.2d at 134).

The panel noted that the defendant’s statements appeared to have expressed his

complaint of his detention and trial rather than a request to the right of selfrepresentation. Id. at *4. Because Ibarra “failed to support counsel’s two

statements on the issue of self-representation,” the panel also found that his

counsel’s statements did not amount to a clear and unequivocal request for selfrepresentation. Id.

Here, Long seems to have made a request to fire his appointed attorney,

but not a clear and unequivocal request to represent himself. In his initial

appearance, Long purported to fire anyone that thought they represented him.

At the end of that hearing, after the magistrate judge appointed a public

defender, Long said “[t]his gentleman is hereby fired.” The next hearing took

place on June 25, 2008. At this hearing, Long again fired the public defender.

Long told the judge he found a replacement. While the record is unclear, it

seems that at this point, Long gave the judge some form of visual cue that he

himself planned on replacing the public defender. Multiple times Long stated

that “[he is] the attorney in fact” that he wanted to replace the public defender.

Because of this, the magistrate judge believed the situation warranted a Faretta

hearing.

As a result of Long’s attempts to fire his attorney, the magistrate judge

made multiple attempts to have a Faretta hearing. Long thwarted each attempt

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until the day of trial. Long and the federal public defender next appeared before

Judge Cummings on October 6, 2008. The first issue the federal public defender

put before the court was the Faretta hearing and Long’s request to represent

himself. In response, Judge Cummings addressed Long:

“THE COURT: All right. Mr. Long, do you wish to represent yourself

in this case?

THE DEFENDANT: Excuse me, Your Honor. No, sir.

THE COURT: All right. Thank you very much. You may be seated.”

Given his uncooperative and non-responsive nature, we believe that Long’s

prior comments are unclear and equivocal. Like Ibarra, Long’s earlier comments

may more aptly be characterized as a general rebellion against the system trying

him, when the comments are taken in the full context of the record. See Ibarra,

2007 WL 807038, at *4. Long made multiple references to how he does not

recognize the trial court. Beyond just his own attorney, Long wished to fire the

government, the court security officers, the marshals, and the judge from

representing him. In fact, Long repeatedly asserted throughout the proceedings

that the Republic of Texas never properly entered the union, and therefore, the

United States Federal Courts had no power over him. Before trial, Long wanted

to fire his attorney. On the day of trial, he expressly denied to the district court

that he wanted to represent himself. Right before sentencing, he once again

wished to fire his attorney. As Burton noted, “[w]here a fundamental

constitutional right, such as the right to counsel, is concerned, courts indulge

every reasonable presumption against waiver. Burton, 937 F.2d at 133; see also

Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (“The right of

self-representation entails a waiver of the right to counsel, since a defendant

obviously cannot enjoy both rights at trial.”). Here, Long did not clearly and

unequivocally both waive his right to counsel and assert his right to selfrepresentation. See id.

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See also United States v. Myers, 503 F.3d 676, 681 (8th Cir. 2007) (affirming the

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conviction of a defendant who made numerous frivolous and repetitive filings, used files

provided by the government in discovery to clog jail toilets, and threw feces into the jail’s mail

slot); Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1145 (11th Cir. 2005) (“Diaz sought to

frustrate the completion of his trial by repeatedly changing his mind regarding

self-representation at the guilt phase of the trial.”); United States v. Keiser, 319 F. App’x 457,

458–59 (9th Cir. 2008).

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B. Long Waived His Right to Self-Representation

Even if Long had clearly and unequivocally asserted his right to selfrepresentation, that right may be waived by his actions. Faretta recognized that

the trial judge may terminate self-representation by a defendant who

deliberately engages in serious and obstructionist misconduct. Faretta, 95 S. Ct.

at 2541 & n.46. After Faretta, at least two circuits have held that obstructionist

behavior may waive the right to self-representation. E.g., United States v.

Brock, 159 F.3d 1077, 1079 (7th Cir. 1998). For example, the Seventh Circuit 2

held that the disruptive defendant may lose his right to pro se status in Brock.

159 F.3d at 1079. Like Long, Mr. Brock filed motions asserting that neither his

attorney nor any other attorney, was authorized to act on his behalf. Id. at 1078.

The district court attempted to conduct a Faretta hearing. Id. Brock repeatedly

demanded a “Bill of Particulars” and challenged the district court’s authority.

Id. Brock refused to answer the court’s questions or cooperate in any way. Id.

The trial judge appointed Brock stand-by counsel and directed the magistrate

judge to inform Brock of the pitfalls of self-representation. Id. at 1079. Before

the magistrate judge, Brock repeated his demands and refused to answer any

questions. Id. After holding Brock in contempt multiple times, the trial court

decided to revoke his pro se status. Id.

Not unlike Brock, Long’s conduct in the instant case suggested disruptive

and obstructionist behavior. After the second time the defendant attempted to

fire the public defender, Magistrate Judge Koenig entered an order for a Faretta

hearing for August 25th, 2008. The Faretta hearing began as scheduled, but

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Long refused to answer the judge’s questions, instead merely replying with the

same nonsensical statement “your offer of contract is accepted for value and

returned with consideration for discharge, settlement and closure.” After the

court was understandably frustrated, Long asked for a sidebar conference with

the judge. The judge refused and required all communication be made on the

record, but offered to let Long speak to an individual from pre-trial services.

Long declined to do so, but asked if the court could resume the hearing in two

days. The court explained to him exactly what the hearing would cover when

they reconvened. 

As scheduled, the court reconvened two days later on August 27, 2008.

Long once again stated that he wanted to fire his counsel. In response, the

magistrate judge understood that, but stated Long would need to cooperate and

allow the pre-trial services officer to question him so the court may get the

information it needed for the Faretta hearing. Instead of cooperating, Long

made the identical above quoted nonsensical statement about accepting an offer

of contract from the judge. After repeatedly warning Long not to “carry on with

these ridiculous statements that carry no meaning in this court or any court of

law,” the magistrate judge ended the hearing.

The magistrate judge held the next hearing on September 3, 2008. Again,

Long began this hearing by stating that he would like to fire the public defender.

From that point onwards, Long responded to every question Judge Koenig asked

by simply repeating the above quoted nonsensical statement about accepting an

offer of contract from the judge. Judge Koenig decided to release Long on

personal recognizance, and let the district court judge conduct a Faretta hearing.

Each time a magistrate judge had attempted to conduct a Faretta hearing, Long

was extremely uncooperative. Long’s actions led to the court pushing back the

hearings until October 6. On October 6, Long denied wanting to represent

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 Long argues that this court should give weight to the Magistrate Judge Bleil’s oral 3

pronouncement that the public defender was stand-by counsel, not the written order

appointing the public defender as counsel. Like the oral pronouncement, the minute entry for

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himself. Like Brock, these facts tend to suggest that Long’s behavior of itself

may well have resulted in the waiver of his right to self-representation.

Long also argues, alternatively, that if he waived his right to selfrepresentation, he reasserted it at the sentencing stage. Courts have held that

the pro se request may be untimely and, therefore, waived. E.g., Wood v.

Quarterman, 491 F.3d 196, 202 (5th Cir. 2007) (“Wood did not move to proceed

pro se until after the jury had already returned a guilty verdict against him,

immediately before the sentencing phase of his trial, and the trial court therefore

had the discretion to deny the motion.”); United States v. Edelmann, 458 F.3d

791, 808–09 (8th Cir. 2006) (request made four days before trial); Howze v. Roe,

92 F. App’x 515, 516 (9th Cir. 2004) (unpublished) (request made two days before

trial). Long relies on United States v. Cano, in which this court remanded for

re-sentencing when the district court failed conduct a Faretta hearing after the

defendant requested to represent himself eighteen days before sentencing.

Cano, 519 F.3d at 515, 517. 

Unlike Cano, Long requested to proceed pro se the day of the sentencing

hearing. Given Long’s previous disruptive and uncooperative conduct, the trial

court may have seen this as another delay tactic. Throughout trial, the district

court was concerned with Long’s “Republic of Texas ‘psychobabble,’” which,

according to the district court, was intended to intimidate the court and frustrate

the administration of justice. Like Wood, we find that Long’s assertion at

sentencing was untimely. 

Long also argues, alternatively, that he represented himself all along, and

counsel was appointed from the beginning by Judge Bleil in Fort Worth as

stand-by counsel without any Faretta hearing. Long argues that while the trial 3

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the initial appearance reads, “Order appointing federal public defender as standby counsel

because Deft. refusal of Representation.” However, the formal order that was also entered

that day appoints the public defender as Long’s counsel without mention of “stand-by” or other

qualification. Even if we were to give weight to the oral pronouncement, the magistrate judge

clarified orally that the public defender was stand-by counsel, “[w]hile [he’s] in Fort Worth.”

(emphasis supplied). And, on May 23, 2008, Assistant Federal Public Defender Kime-Goodwin

entered her appearance in the Lubbock Division as counsel for Long without any indication

of stand-by or other limited status. Moreover, on September 5, 2008, Judge Cummings reappointed the federal public defender as counsel. This was almost a month before Long filed

his motion to dismiss based on the Speedy Trial Act. 

 Long centers his argument that he did not waive his right to self-representation on 4

a line from Cano: “In United States v. Cano, this Court indicated that it would ‘indulge every

reasonable presumption against waiver’ of the right to self-representation.” Brief of DefendantAppellant at 31 (quoting Cano, 519 F.3d at 517) (emphasis supplied). Cano actually reads:

“Where a fundamental constitutional right, such as the right to counsel, is concerned, courts

indulge every reasonable presumption against waiver.” Cano, 519 F.3d at 517 (emphasis

supplied).

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court may not have conducted a formal Faretta hearing, he was made aware of

the dangers and disadvantages of self-representation. After Magistrate Judge

Koenig set a Faretta hearing, Long requested to delay it for two days. When

granting this request, the magistrate judge informed Long of what could be

expected at the Faretta hearing. Long characterizes this preview as being fully

briefed on the dangers of self-representation. However, Faretta clearly requires

more than the defendant received. Assuming a defendant clearly and

unequivocally requests to represent himself, the trial court still must make a

finding that the defendant knowingly and intelligently waived his right to

counsel and asserts his right to self-representation. United States v. Cano, 519

F.3d 512, 516 (5th Cir. 2008).

But even assuming Long was briefed properly under Faretta and had been

representing himself, Long waived his right to self-representation. Long 4

expressly told the trial judge before trial that he did not want to represent

himself. The public defender acted as counsel for the remainder of the trial. This

court’s opinion in Lafevre v. Cain is on point:

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“[A] defendant can waive his Faretta rights, either by expressly

requesting standby counsel's participation on a matter or by

acquiescing in certain types of participation by counsel, even if the

defendant insists that he is not waiving his Faretta

rights. . . . [O]nce a pro se defendant invites or agrees to any

substantial participation by counsel, subsequent appearances by

counsel must be presumed to be with the defendant's acquiescence,

at least until the defendant expressly and unambiguously renews

his request that standby counsel be silenced. . . . [S]tandby

counsel's participation [must] be ‘over the defendant's objection’ in

order to erode the defendant's Faretta rights.”

Lefevre v. Cain, 586 F.3d 349, 355–56 (5th Cir. 2009) (internal citations omitted).

In Lefevre, this court found waiver after the defendant acquiesced to stand-by

counsel participation, but never objected or provided a reason for his failure to

object to that help. Id. at 356, 357. 

We believe that Long’s obstructionist behavior, coupled with Long, just

before trial began, having told the district court that he did not wish to represent

himself, warrant similar reasoning and a similar waiver result here.

II. Speedy Trial Act

Long also appeals the district court’s failure to address this October 3,

2008 pro se motion based on the Speedy Trial Act. At the time, Long was

represented by counsel, so the trial court properly struck his pro se motion. See

United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). Consequently,

Long’s failure to properly “move for dismissal prior to trial or entry of a plea of

guilty or nolo contendere shall constitute a waiver of the right to dismissal”

under the Speedy Trial Act. 18 U.S.C. § 3162(a)(2).

CONCLUSION

We affirm Long’s conviction and sentence. First, Long was not denied his

constitutional right to represent himself because he did not timely, clearly, and

unequivocally assert it. Any attempts to assert that right were waived by his

own obstructionist behavior combined with his negative answer to the district

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court’s inquiry whether he desired to represent himself. Long waived his rights

under the Speedy Trial Act because he failed to properly put the issue before the

trial court. 

AFFIRMED

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