United States Court of Appeals

Fifth Circuit

FILED

August 16, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40796

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILBERT SHARUN JONES,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

--------------------

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
2

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
3

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. 
4

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
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.

5

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
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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 selfrepresentation, as required by Faretta v. California, 422 U.S.
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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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
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

8
Benchbook 1.02 (4th ed. 2000). 

9

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
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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.