NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-2350

_____________

UNITED STATES OF AMERICA

v.

MIGUEL JUNIOR MORRIS, a/k/a Tony

MIGUEL JUNIOR MORRIS,

 Appellant 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 1:12-cr-00105-001)

District Judge: Honorable William W. Caldwell

______

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 25, 2014

Before: FUENTES, GREENBERG, and VAN ANTWERPEN, Circuit Judges

(Filed: March 26, 2014)

______

OPINION OF THE COURT

______

 

VAN ANTWERPEN, Circuit Judge.

This case is governed by Anders v. California, 386 U.S. 738 (1967). The matter 

arises out of the District Court for the Middle District of Pennsylvania’s conviction of 

Miguel Junior Morris (“Morris”) for possessing with intent to distribute 5 kilograms or 
2

more of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(i) and subsequent

sentence of 264 months imprisonment. For the reasons that follow we will grant 

counsel’s request to withdraw and affirm the judgment and sentence of the District Court.

I. BACKGROUND

On April 25, 2012, Morris was indicted by a Grand Jury sitting in the Middle 

District of Pennsylvania. The one count indictment charged that “[o]n or between 2005 

and April 15, 2011, within the Middle District of Pennsylvania [Morris] knowingly and 

intentionally possessed with intent to distribute 5 kilograms or more of . . . cocaine.” 

(Appendix (“App.”) at 15.) Morris pled not guilty, but waived a jury trial.

Prior to trial, Morris moved to suppress evidence found during a residential search, 

pursuant to a warrant. The evidence included cocaine, currency, and drug paraphernalia. 

Morris argued that the search warrant was based upon false and incomplete information. 

Specifically, Morris claimed that Detective Anthony Lombardo did not base his statement 

of probable cause on information provided by a “citizen in good standing,” and that the 

controlled buys that Detective Lombardo testified to having witnessed did not occur or 

did not occur as stated. After a hearing, the District Court explicitly denied the motion on 

credibility grounds, finding “the testimony of Detective Anthony Lombardo to be 

credible and the testimony of [Morris] not to be credible.” (App. at 85.)

On October 25, 2012, Morris wrote to the District Court claiming that his 

appointed counsel, William A. Fetterhoff (“Fetterhoff”), was ineffective and requested

substitute counsel. Morris complained that Fetterhoff’s motions for continuances violated 

his right to a speedy trial. On November 15, 2012, Morris wrote again, complaining 
3

generally that Fetterhoff was not diligent or trustworthy. Rather than request substitute 

counsel, Morris now expressed a desire to proceed pro se at trial; however, he accused 

the District Court of coercing this decision by failing to appoint substitute counsel.

On November 20, 2012, the District Court issued an Order scheduling a hearing to 

determine “whether new counsel should be appointed, and/or whether the defendant is 

serious about going to trial pro se and understands the implications of such a decision.” 

(Order at 1, Nov. 20, 2012, ECF No. 44.). The hearing occurred on November 28, 2012, 

six days prior to the December 4, 2012 trial. As discussed below, the District Court was 

initially reluctant to discuss Morris’ reasons for wanting substitute counsel beyond what 

he expressed in his letters. However, it ultimately heard Morris’ reasons and rejected his 

request. It then conducted a colloquy on Morris’ pro se request and found Morris’ waiver 

knowing, voluntary, and intelligent. Although the District Court rejected Morris’ request 

for substitute counsel, due to his apparent reservations over proceeding pro se, it 

appointed Fetterhoff as standby counsel. Despite Fetterhoff’s readiness to represent him, 

Morris only permitted him to conduct three cross-examinations.

During the trial, the Government presented testimony of nine witnesses, including 

the investigating officers and persons claiming to have purchased cocaine from and sold 

cocaine for Morris. Morris chose not to testify. He presented no witnesses, but 

successfully moved to have documents admitted.1The District Court found Morris guilty 

of possessing with intent to distribute cocaine in excess of 5 kilograms. 

 

1 Morris’ counsel indicates that he has been unable to locate these documents despite 

contacting the District Court, the Government, Morris’ standby trial counsel, and Morris.
4

Morris’ Presentence Investigation Report (“PSR”) calculated his Total Offense 

Level as 37 (which included designation as a career offender) and Criminal History 

Category as VI, resulting in a Guidelines range of 360 months to life. See United States 

Sentencing Guidelines ch. 5, pt. A. Morris objected to the PSR on two grounds: (1) lack 

of sufficient evidence to show the drug weight of 10 kilograms of cocaine, and (2) an 

unexplained denial that he was a career offender.

At sentencing, Morris did not raise any further objections to the PSR. His counsel

then argued for a downward variance, raising three factors for the District Court’s 

consideration: (1) although the prior convictions were technically within the 15 year 

period required for career offender status, they had a sentencing date 20 years prior to this 

sentencing; (2) no firearms were involved in this or any other of Morris’ conviction; and 

(3) given the mandatory minimum, Morris, then 43 years of age, would be at least 60 

when released, an age when recidivism is statistically unlikely.

The District Court imposed a sentence of 264 months, 24 months above the 20 

year statutory minimum. See 21 U.S.C. § 841(a)(1), (b)(1)(A)(i). The sentence reflected a 

96 month downward variance from the lower end of the Guidelines range. Judge 

Caldwell explained that while the 1993 convictions “were serious,” he would take into 

account that they occurred 20 years ago. (App. at 551.) He also considered Morris’ age 

and the lack of firearms or crimes of violence. He concluded, “I do feel therefore that the 

guideline sentence is too severe for the offenses that you have committed, and I’m sorry 

that you have to be sentenced as a career offender, but I don’t control that at all.” (Id.)
5

After sentencing, Fetterhoff filed a motion to withdraw, which the District Court 

granted. It appointed substitute counsel for Morris’ appeal. Morris appealed, but his

appointed counsel seeks to withdraw pursuant to Local Appellate Rule (L.A.R.) 109.2 

and Anders v. California, 386 U.S. 738 (1967). The Government filed a brief in support 

of appellate counsel’s brief and Morris filed a pro se brief in support of his appeal.

II. DISCUSSION2

Under Anders, if appellate counsel “finds his case to be wholly frivolous, after a 

conscientious examination of it, he should so advise the court and request permission to 

withdraw.” 386 U.S. at 744. Counsel’s request must include “a brief referring to anything 

in the record that might arguably support the appeal.” Id. To meet the requirements of 

Anders and L.A.R. 109.2(a), counsel must “satisfy the court that he or she has thoroughly 

scoured the record in search of appealable issues and then explain why the issues are 

frivolous.” United States v. Coleman, 575 F.3d 316, 319 (3d Cir. 2009) (quoting United 

States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)) (internal quotation marks omitted). 

An appeal is frivolous if it “lacks any basis in law or fact.” McCoy v. Court of Appeals of 

Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988). Counsel need not “raise and reject every 

possible claim.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). At minimum, 

however, counsel must satisfy Anders’ “conscientious examination” standard. Id. 

(quoting Anders, 386 U.S. at 744).

 

2

The District Court had subject matter jurisdiction under 18 U.S.C. § 3231 because 

Morris was charged with an offense against the United States. We have jurisdiction 

pursuant to 28 U.S.C. § 1291.
6

In evaluating an Anders brief, the Court makes a two-fold inquiry: “(1) whether 

counsel adequately fulfilled [L.A.R. 109.2(a)’s] requirements; and (2) whether an 

independent review of the record presents any nonfrivolous issues.” Id. If the brief is 

adequate, the Court will confine its review to those portions of the record counsel has 

identified, as well as those identified in the defendant’s pro se brief (if filed). Id. at 301. 

In the event we agree that there are no nonfrivolous grounds for appeal, we grant 

counsel’s motion and dismiss or affirm. Anders, 386 U.S. at 744.

A. Adequacy of Counsel’s Anders Brief

Counsel has identified and rejected as frivolous four specific issues: (1) the 

jurisdiction of the District Court; (2) the District Court’s denial of Morris’ Suppression 

Motion; (3) the sufficiency of the evidence; and (4) the reasonableness of the sentence. 

Counsel also notes that the District Court did not rule against Morris on any matters 

pretrial, during trial, or post-trial (except the Suppression Motion), and that a review of 

the record reveals no appealable issues that were not raised in the District Court. Counsel 

has reviewed the relevant law, explained why the appeal is frivolous, and appended 

relevant portions of the record. We find that counsel’s “conscientious examination” 

satisfies Anders and L.A.R. 109.2(a). 

As discussed below, Morris’ pro se brief raises issues counsel does not address. 

We have previously noted that counsel’s failure to address issues raised in pro se filings 

is evidence of an inadequate Anders brief. See, e.g., Youla, 241 F.3d at 301. However, 

counsel need not “raise and reject every possible claim.” Id. at 300. While we have 

reservations about the District Court’s procedures—and thus highlight them with an 
7

extended discussion—we ultimately conclude that Morris raises no nonfrivolous issues.

Although we would have preferred counsel to address this issue, his effort assures us that 

he has “thoroughly searched the record and the law.” Marvin, 211 F.3d at 781. We next

proceed to our independent review of the issues raised in counsel’s Anders brief. 

B. Independent Review

1. The District Court’s Jurisdiction

The District Court had subject matter jurisdiction because Morris was charged 

with an “offense[] against the laws of the United States.” 18 U.S.C. § 3231. It had 

personal jurisdiction because Morris was brought before the District Court on a federal 

indictment charging a violation of federal law. See United States v. Rendon, 354 F.3d 

1320, 1326 (11th Cir. 2003). No nonfrivolous challenge exists.

2. The Suppression Motion

No nonfrivolous grounds exist to challenge the District Court’s denial of Morris’ 

suppression motion. Morris argued that the search warrant was based upon false and

incomplete information. The District Court denied his motion, specifically holding

Detective Lombardo’s testimony to be credible and Morris’ testimony not to be credible.

As to the facts, we generally review denial of a suppression motion for clear error. 

United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006). However, credibility 

determinations are reserved for the factfinder. Durham Life Ins. Co. v. Evans, 166 F.3d 

139, 148 n.2 (3d Cir. 1999). “[W]e will not review a district court’s credibility 

determination.” United States v. Bethancourt, 65 F.3d 1074, 1078 (3d Cir. 1995) (citing 

Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974)). 
8

3. The Sufficiency of the Evidence

No nonfrivolous arguments exist to challenge the sufficiency of the evidence upon 

which Morris was convicted. Appellate courts review trial evidence for sufficiency “in 

the light most favorable to the Government.” United States v. Gibbs, 190 F.3d 188, 197 

(3d Cir. 1999). Morris’ burden is heavy “for [the court] must uphold his conviction if any 

rational trier of fact could have found the essential elements of the offense beyond a 

reasonable doubt.” Id. The essential elements of Morris’ offense are (1) knowing 

possession of a controlled substance, and (2) intent to distribute it. 21 U.S.C. § 841(a)(1).

a. Knowing Possession of a Controlled Substance

Testimony elicited at trial was sufficient for a rational trier of fact to find this 

element established beyond a reasonable doubt. Prosecution witness John Hutchinson 

testified that he purchased crack cocaine from Morris and later began cooking it for him. 

He and Morris traveled together approximately twenty times to pick up cocaine, and 

Morris received approximately one kilogram of cocaine per month between 2005 and

2008. He estimated that he personally cooked between 10 and 20 kilograms of cocaine 

for Morris and that Morris stored the drugs in his apartment.3

Ramonita Mestre-Nunez, Morris’ ex-girlfriend, with whom Morris lived for a 

year, observed Morris possessing cocaine and testified that he would travel every 

weekend and return with cocaine every other weekend. This was corroborated by Rent-

 

3

Portions of this testimony, including that Morris “sold to a lot of people,” were 

corroborated by Brent Hoffmaster, who also traveled with Morris to pick up cocaine.
9

A-Car bank records and a Rent-A-Car employee who testified to renting cars to Morris 

nearly every weekend between June 2007 and August 2008. 

Finally, Officer William Watt testified that he watched the window of Morris’

apartment when the search warrant was executed. He observed Morris open the window 

and toss a glass bowl out. A cake-like substance, which Watt believed to be crack, fell 

from the bowl when it hit the ground. Detective Lombardo, who entered the apartment 

during the search testified to finding cocaine, Morris’ wallet, identification, and mail and 

documents indicating that he resided at the apartment. 

No nonfrivolous challenge exists. The evidence of Morris’ knowing possession 

was adequate to justify a rationale trier of fact in finding this essential element 

established beyond a reasonable doubt. See Gibbs, 190 F.3d at 197. 

b. Intent to Distribute

Testimony elicited at trial was also sufficient for a rational trier of fact to find

beyond a reasonable doubt that Morris intended to distribute cocaine. The Government 

presented witnesses who both sold cocaine for and purchased cocaine from Morris. 

Mestre-Nunez testified that she sold up to $900 worth of cocaine for Morris on weekends 

while he was out of town. She testified that Morris would sell cocaine during the week. 

Witnesses Michael Shaub and Lyle Doyle testified to purchasing cocaine from Morris.

Detective Lombardo testified to finding sandwich baggies, ammonia (used to 

manufacture crack), razors with suspected cocaine residue on them, and $6,000 in cash.

The Government’s expert witness, Drug Enforcement Agency Special Agent Mark 

O’Donnell, testified that the facts of Morris’ case supported the inference that Morris 
10

possessed cocaine with the intent to distribute it. No nonfrivolous challenge to the 

sufficiency of the evidence exists.

4. Reasonableness of the Sentence

We review imposition of a criminal sentence for abuse of discretion and conduct a 

two-step inquiry. United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). We initially

determine whether the District Court committed procedural error; if such error exists, we 

remand without further analysis. Id. If we find no procedural error, we review for 

substantive reasonableness and affirm “unless no reasonable sentencing court would have 

imposed the same sentence on that particular defendant for the reasons the district court 

provided.” Id.

A district court must follow a three step sentencing process. It should (1) calculate 

the Guidelines range, including sentencing enhancements; (2) consider any motions for 

departure; and (3) consider the Guidelines range in conjunction with the sentencing 

factors listed in 18 U.S.C. § 3553(a) to determine the appropriate sentence. Id.

The District Court correctly found that Morris’ Total Offense Level of 37 and 

Criminal History Category of VI subjected him to a Guidelines range of 360 months to 

life imprisonment. It also noted that he was subject to a mandatory 20 year minimum. 

Morris did not object to the PSR on procedural grounds.4 Neither party requested a

departure. The record demonstrates that the District Court sufficiently considered all of 

 

4 As noted, Morris did initially raise two non-procedural objections to the PSR: (1) that 

there was insufficient evidence to support the drug weight of 10 kilograms of cocaine, 

and (2) that he was not a career offender. As discussed, the unrefuted trial testimony 

demonstrated Morris was selling at least 10 kilograms of cocaine, and his career offender 

status was well established by his prior convictions.
11

the relevant § 3553(a) factors and sentencing grounds raised by the parties—including 

those raised by Fetterhoff in support of Morris’ request for a variance. Judge Caldwell 

explained that while the 1993 convictions “were serious,” he would take into account that 

they occurred 20 years ago. (App. at 551.) He also considered Morris’ age and the lack of 

firearms or crimes of violence. He concluded, “I do feel therefore that the guideline 

sentence is too severe for the offenses that you have committed, and I’m sorry that you 

have to be sentenced as a career offender, but I don’t control that at all.” (Id.)

The District Court considered all of the relevant factors and sentenced Morris to 

96 months below the properly calculated applicable Guidelines range. We cannot say that 

“no reasonable sentencing court would have imposed the same sentence on that particular 

defendant for the reasons the district court provided.” Wright, 642 F.3d at 152. No 

meritorious challenge exists on appeal.

5. Morris’ Pro Se Brief

Our inquiry under Anders requires us to review those issues identified in Morris’

pro se brief. See Youla, 241 F.3d at 301. Morris raises two issues in addition to those 

highlighted in counsel’s Anders brief.5 Our independent review indicates that none of the 

issues raised by Morris could support a meritorious appeal.

a) Sufficiency of the Indictment

Morris admits that his challenge to the sufficiency of the indictment was not raised 

before the District Court. We have held that defendants may challenge the sufficiency of 

 

5 Many of the issues raised by Morris, such as the sufficiency of the evidence and 

purported errors during the Suppression Hearing, were raised in counsel’s brief and are 

discussed above. We limit the foregoing discussion to those issues not raised by counsel.
12

indictments for the first time on appeal pursuant to Federal Rule of Criminal Procedure 

12(b)(3)(B). United States v. Al Hedaithy, 392 F.3d 580, 589 (3d Cir. 2004). However, 

tardy challenges to indictments “are liberally constructed in favor of validity.” United 

States v. Vitillo, 490 F.3d 314, 324 (3d Cir. 2007) (quoting United States v. Wander, 601 

F.2d 1251, 1259 (3d Cir. 1979)). An indictment will be upheld “unless it is so defective 

that it does not, by any reasonable construction, charge an offense.” Id. (quoting United 

States v. Childress, 58 F.3d 693, 720 (D.C. Cir. 1995)).

Morris argues that the indictment was duplicitous because the language “on or 

between 2005 and April 15, 2011” is so open-ended that Count I “really contains two 

separate, distinct substantive offenses in the same count.” (Pro Se Br. at 3–4.) Morris 

believes that only the actual drugs he was caught with during the search should be 

counted toward his 21 U.S.C. § 841(a) violation, and that any other evidence supporting a 

charge of possession with intent to distribute should be charged separately. However, an 

indictment is not duplicitous merely because it alleges a continuing offense. United States 

v. Mancuso, 718 F.3d 780, 792 (9th Cir. 2013); United States v. Cohen, 444 F. Supp. 

1314, 1320 (E.D. Pa. 1978). “[P]ossession with intent to distribute controlled substances 

is a continuing offense.” United States v. Zidell, 323 F.3d 412, 422 (6th Cir. 2003) 

(quoting United States v. Medina, 992 F.2d 573, 587 (6th Cir. 1993)) (collecting cases).6

b) Failure to Appoint New Counsel/Involuntary Waiver of 

Counsel

 

6 Morris’ allegations that the erroneous indictment resulted in unfair Grand Jury 

proceedings and noncompliance with the 5 year statute of limitations provided in 18 

U.S.C. § 3282(a) are rejected on the same grounds. 
13

Morris also avers that his Sixth Amendment right to counsel was violated because 

his request to represent himself pro se was unknowing and involuntary. Specifically, he 

argues that the District Court never conducted a searching inquiry into his “irreconcilable 

conflict” with Fetterhoff, and that its failure to appoint substitute counsel coerced him 

into proceeding pro se. (Pro Se Br. at 12.) He also contends that the District Court did not 

conduct a proper colloquy under Faretta v. California, 422 U.S. 806 (1975) and its 

progeny. While we have some reservations about the procedures by which the District 

Court inquired into Morris’ reasons for his dissatisfaction with Fetterhoff—and thus 

highlight them with an extended discussion—we find Morris’ arguments to raise no 

nonfrivolous grounds for appeal.

The Sixth Amendment contains both a right to counsel and a right to proceed pro 

se. See United States v. Peppers, 302 F.3d 120, 129 (3d Cir. 2002). Defendants must 

affirmatively and unequivocally assert the right to proceed pro se, and district courts must 

establish that a defendant’s request is voluntary, knowing, and understanding. Id. at 130–

31. Because a defendant’s request, immediately prior to trial, to substitute counsel or 

proceed pro se likely implicates a continuance, the district court is required to conduct a 

dual inquiry. Id. at 132; see also United States v. Welty, 674 F.2d 185, 187 (3d Cir. 1982). 

The district court must first “engage in at least some inquiry,” Welty, 674 F.2d at 187, 

with which to “ascertain the defendant’s reasons for his dissatisfaction with counsel,” 

Peppers, 302 F.3d at 132. Alternatively, if the court is made aware of the reasons for the 

defendant’s dissatisfaction with counsel, it may rule without more. Welty, 674 F.2d at 188 
14

(quoting Brown v. United States, 264 F.2d 363, 369 (D.C. Cir. 1959) (en banc) (Burger, J.

concurring in part)).

If the defendant can show good cause, the district court must “grant a continuance 

and appoint new counsel, unless the defendant expressly wishes to proceed pro se.” Id. 

We have previously defined good cause as, inter alia, “a conflict of interest, a complete 

breakdown of communication, or an irreconcilable conflict with the attorney.” United 

States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995) (citing Welty, 674 F.2d at 188;

McMahon v. Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987)). Where no good cause is 

shown, the district court is required to inform the defendant that he can “proceed with 

current counsel, or represent himself.” Id. We review a district court’s legal conclusions 

de novo, including whether it properly fulfilled its duties under Welty. See Goldberg, 67 

F.3d at 1097. We review a district court’s decision whether to appoint substitute counsel 

for abuse of discretion. Id. (citing McMahon, 821 F.2d at 943; Welty, 674 F.2d at 190).

Second, if the defendant elects to represent himself, the district court must ensure 

that such decision “is intelligently and competently made.” Welty, 674 F.2d at 187. In 

doing so, the following Faretta inquiry requirements must be satisfied:

1. The defendant must assert his desire to proceed pro se clearly and 

unequivocally.

2. The court must inquire thoroughly to satisfy itself that the defendant 

understands “the nature of the charges, the range of possible punishments, 

potential defenses, technical problems that the defendant may encounter, 

and any other facts important to a general understanding of the risks 

involved.”

3. The court must “assure itself” that the defendant is competent to stand 

trial.
15

Peppers, 302 F.3d at 132 (footnote and citations omitted) (quoting Virgin Islands v. 

Charles, 72 F.3d 401, 404 (3d Cir. 1995)). “A defendant who chooses to represent 

himself must be allowed to make that choice, even if it works ‘ultimately to his own 

detriment.’” Id. at 130 (quoting Faretta, 422 U.S. at 834). 

i) Welty’s First Line of Inquiry

On October 25, 2012, Morris wrote to the District Court claiming that Fetterhoff 

was ineffective and requesting substitute counsel. Specifically, Morris alleged that 

Fetterhoff’s motions for continuances violated his right to a speedy trial.7In another letter 

on November 15, 2012, Morris generally complained that he mistrusted Fetterhoff and 

that he was derelict in his duties.8 However, this time Morris did not request substitute 

counsel. Rather, Morris expressed his desire to proceed pro se: “The purpose of this 

missive is to inform you of how I wish to implement one of the rights thats [sic] entitled 

to me, as a citizen of this great land, so that you . . . can get the process started for me to 

actually exercise my right to represent myself as pro se counsel, during my trial.” (Pro Se 

Br. Ex. H.) He concluded, stating, “I know my case better than Mr. Fetteroff [sic], so I 

should be the one defending my freedom.” (Id.)

 

7 On October 22, 2012, Morris had also written to the District Court indicating that he did 

not want any more continuances, which he suggested were interfering with his right to a 

speedy trial. (Letter from Miguel Junior Morris to District Court at 1, Oct. 22, 2012, ECF 

No. 41.)

8 After the trial, but prior to sentencing, Morris sent three letters requesting that the 

District Court appoint substitute counsel. In these letters, Morris cited additional reasons 

for his dissatisfaction: counsel’s refusal to send him all copies of his discovery, counsel’s 

alleged involvement in the prosecutor’s “forgery,” (Pro Se Br. Ex. J.), counsel’s failure to 

file certain motions, (id. Ex. K.), a lack of meaningful communication, and counsel’s 

alleged threats against Morris and his family, (id. Ex. L.)
16

Morris’ request appeared reluctant, however. He seemed to note the difficulty of 

proceeding pro se and accused the District Court of coercing this decision because it had 

not appointed substitute counsel: 

The decision to act as pro se counsel is a very complex-ed [sic] concept to 

try to decipher, yet due to the fact that I just dont [sic] trust my advocate, 

my decision to represent myself seemed like the right move to make, 

especially when my freedom is at risk. I consider your actions, of not 

helping me obtain new counsel, after I declaired [sic] to you of how my 

attorney was being a derelict of his duty towards me, as coercing me to 

make this decision.

(Id.)

On November 20, 2012, the District Court issued an Order acknowledging the 

substance of Morris’ letters and declaring that “[t]hese events require a hearing to 

determine whether new counsel should be appointed, and/or whether the defendant is 

serious about going to trial pro se and understands the implications of such a decision.” 

(Order at 1, Nov. 20, 2012, ECF No. 44.). The hearing occurred on November 28, 2012, 

six days prior to the December 4, 2012 trial. Despite noting in its Order the potential need 

to assess whether new counsel should be appointed, the District Court was initially 

reluctant to discuss the reasons for Morris’ substitution request:

THE COURT: Is it still your desire to proceed pro se in this case?

THE DEFENDANT: That’s correct.

THE COURT: Because you’re not satisfied with Mr. Fetterhoff?

THE DEFENDANT: Well, first of all, he violated my Sixth 

Amendment right.

THE COURT: I don’t want to hear that.

THE DEFENDANT: Okay.

THE COURT: I just want you to answer my questions.

THE DEFENDANT: I’m just giving you why I did it for.

(Supplemental App. at 2–3.) 
17

During the colloquy, Morris raised the subject again:

Q. In light of the penalties that you might suffer if you’re found guilty 

and in light of all the difficulties of representing yourself, do you still desire 

to represent yourself and give up your right to be represented by a lawyer?

A. Your Honor, I really would like another lawyer. I don’t want Mr. 

Fetterhoff because every time I told him to do something, he just -- I told 

him to get me a private investigator. He denied me that. I told him I don’t 

want no continuance on my case. He still continued -- he violated my Sixth 

Amendment right for a speedy trial. So what’s the point of me having this 

gentleman here if he’s not going to represent me the way he should?

Q. Okay. Well, what you have to understand is that I cannot judge Mr. 

Fetterhoff’s performance as your defense lawyer at this point. If you’re 

convicted, that is a matter that can be reviewed, and I will then determine 

whether or not any of the complaints that you have raised are valid.

But at this point you have not shown sufficient reasons for me to 

appoint another attorney for you. You have to understand that an attorney 

does not have to do everything you want him to do. What he has to do is 

what, in his judgment, is in your best interest. So if he refuses to get you a 

private investigator, there must be a reason that he has for that. . . .

....

Q. I’m just telling you that under all the circumstances, I don’t think 

you have presented the Court with a valid reason at this point for me to 

appoint another attorney.

What I will do, however, is appoint Mr. Fetterhoff as standby 

counsel to be here during the trial, and if you wish to, you can consult with 

him about anything that might come up during the trial about which you 

might want to talk to him about.

(Id. at 9–10.)9 

 

9 Morris’ pro se brief purports to quote an exchange between Morris and the District 

Court, however we have been unable to locate this dialogue anywhere in the record. The 

source Morris cites—Document 46—is his waiver of his right to trial by jury, not a 

transcript. (App. at 12.) We are left to assume that, despite his use of quotation marks, 

Morris is paraphrasing the above exchange. Also, although Morris suggests that the 

hearing occurred on November 11, 2012, we assume he is referring to the hearing which 

took place on November 28, 2012. Morris writes:

During the hearing of November 11, 2012 (Doc. 46), Appellant 

attempted to inform the district court as to the substance of the conflict[.] 

Appellant stated “between my lawyer, and the prosecution they both are 
18

The hearing called by the District Court occurred less than one week before trial, 

thus implicating its duties under Welty. The District Court was well aware of Morris’ 

complaints regarding Fetterhoff’s continuances, which he referenced in three prior letters. 

Morris’ November 15, 2012 letter raised other general reasons for his dissatisfaction with 

Fetterhoff, and he expressed another reason during the hearing—Fetterhoff’s alleged 

failure to hire a private investigator as requested. The District Court then explicitly ruled 

that Morris had failed to show “sufficient reasons” to appoint substitute counsel and 

explained its rationale. (Id.) 

This case does not require us to decide whether the District Court should have

engaged in Welty’s first line of inquiry or whether Morris’ letters “clearly stated” his 

reasons so that the District Court could “rule without more.” Welty, 674 F.2d at 187; see 

also United States v. Salemo, 61 F.3d 214, 221 (3d Cir. 1995) (finding Welty inquiry did 

not require discussion of reasons for continuance request to obtain new counsel where 

defendant’s reasons were “clearly stated”). Even assuming the District Court was 

 

violating my 6th Amendment right to a speedy trial, and also I asked my 

attorney to inform the court of the need for a private investigator to 

discover necessary facts for a[n] adequate defense, and my attorney stated

to me that he needed permission from the prosecution. The district court 

then stated “what ever [sic] conflict you, and your lawyer have that’s 

between you, and your lawyer.” Appellant then stated “I don’t want Mr. 

Fetterhoff as my attorney, because he’s using his position to gain a tactical 

advantage on me.” The district court then replied “I’m still going to keep 

him on as stand by counsel.” 

(Pro Se Br. at 12.) Finally, we note that it is unclear where the first quote ends because 

Morris did not use a close quotation mark.
19

required to engage in Welty’s first line of inquiry, it properly adhered to the substance—if 

not the form—of its duty. 

The preferred procedure under Welty is for the district court to determine whether 

good cause exists for the defendant’s dissatisfaction with counsel first, and then, if 

necessary, inquire into whether the defendant’s waiver of counsel is knowing, 

understanding, and voluntary. See, e.g., Peppers, 302 F.3d at 132; Welty, 674 F.2d at 

187–88. Although at the outset of the hearing the District Court was reluctant to entertain 

Morris’ rationale for wanting substitute counsel (beyond the detail provided in his 

letters),10 it ultimately ascertained and ruled upon Morris’ reasons for his dissatisfaction. 

See Peppers, 302 F.3d at 132. Though its inquiry was modest, the court did engage “in at 

least some inquiry.” Welty, 674 F.2d at 187. Due to the District Court’s efforts and 

Morris’ letters, we are not left to conduct our review “in the total absence of any inquiry 

into the cause of [Morris’] dissatisfaction [with] no way of knowing whether [Morris] 

may have had some valid ground for seeking a substitution of counsel.” Id. at 190; see 

also McMahon, 821 F.2d at 944 (district court violated defendant’s constitutional rights 

where it failed to engage in “any on-the-record inquiry as to the reasons for the 

 

10 We find the District Court’s initial reluctance difficult to explain given that its Order 

specifically suggested that Morris’ letters required a hearing “to determine whether new 

counsel should be appointed.” (Order at 1, Nov. 20, 2012, ECF No. 44.) Although we

find the District Court ultimately fulfilled its duties under Welty’s first line of inquiry, the 

record gives the appearance of confusion over the nature of those duties. Specifically, the 

District Court told Morris that “I cannot judge Mr. Fetterhoff’s performance as your 

defense lawyer at this point. If you’re convicted, that is a matter that can be reviewed, 

and I will then determine whether or not any of the complaints that you have raised are 

valid.” (Supplemental App. at 9.) As our main discussion makes clear, however, a district 

court in this situation does have a duty to determine whether a defendant has good cause 

for his dissatisfaction with counsel. 
20

defendant’s dissatisfaction with his existing attorney”). After properly concluding that 

good cause did not exist, the District Court’s remaining duty under Welty’s first line of 

inquiry was to “inform the defendant that he [could] either proceed with current counsel, 

or represent himself.” Peppers, 302 F.3d at 132. The District Court did so—in fact, it 

gave Morris the best of both worlds, permitting him to represent himself and appointing 

Fetterhoff as standby counsel. Thus, no nonfrivolous argument exists to challenge the 

District Court’s adherence to its duties under Welty’s first line of inquiry. 

Furthermore, no nonfrivolous argument exists to challenge the District Court’s 

exercise of discretion in denying Morris’ request for substitute counsel. We agree that 

Morris’ attorney did not have to “do everything [Morris] wanted him to do.” 

(Supplemental App. at 9.) Nothing in the record indicates a “conflict of interest, a 

complete breakdown of communication, or . . . irreconcilable conflict.” Goldberg, 67 

F.3d at 1098. “[T]he essential aim of the [Sixth] Amendment is to guarantee an effective 

advocate for each criminal defendant rather than to ensure that a defendant will 

inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 

U.S. 153, 159 (1988). 

ii) Welty’s Second Line of Inquiry(Faretta Inquiry)

Morris also claims that the District Court failed properly to discharge its duties 

under Faretta (and Welty’s second line of inquiry) because (i) his asserted desire to 

proceed pro se was not clear and unequivocal, and (ii) his waiver of counsel was not 

knowing and voluntary due to the District Court’s failure properly to advise him. See 

Peppers, 302 F.3d at 132. These claims raise no nonfrivolous arguments for appeal.
21

Morris contends that he only reluctantly proceeded pro se after the District Court 

denied him substitute counsel, and therefore his request to proceed pro se was not clear 

and unequivocal. The record somewhat supports this position. As noted, his November 

15 letter blamed his decision to proceed pro se on the District Court’s “coercion.” (Pro Se 

Br. Ex. H.) Also, Morris expressed reluctance to proceed pro se during the colloquy. 

Q. In light of the penalties that you might suffer if you’re found 

guilty and in light of all the difficulties of representing yourself, do you still 

desire to represent yourself and give up your right to be represented by a 

lawyer?

A. Your Honor, I really would like another lawyer.

(Supplemental App. at 9.)

When a defendant’s language “casts doubt upon the voluntariness of his request” 

to proceed pro se, we have noted that “a defendant will not normally be deemed to have 

waived the right to counsel by reluctantly agreeing to proceed pro se under circumstances 

where it may appear that there is no choice.” Salemo, 61 F.3d at 221 (citing United States 

ex rel. Martinez v. Thomas, 526 F.2d 750, 755–56 (2d Cir. 1975)). However, district 

courts need not be manipulated into appointing new counsel. Id. Rather, a defendant’s 

apparent reluctance to proceed without counsel “should . . . alert[] the court to the need to 

inform the defendant of the pitfalls and technicalities of” proceeding pro se. Id.

The District Court fulfilled this duty. It conducted a thorough colloquy which 

addressed all of the requirements outlined in Peppers and clearly advised Morris of the 

risks of proceeding pro se. (See Supplemental App. at 3–9 (“I must advise you that in my 

opinion, a trained lawyer would defend you far better than you can defend yourself. . . . I 
22

strongly urge you not to try to represent yourself.”).) Morris again reiterated his request 

to proceed pro se even after the District Court denied his request for substitute counsel: 

Q. Do you have any questions or do you want me to clarify or explain 

further anything that we’ve discussed here this morning?

A. No.

Q. All right. Are you making this decision [to proceed pro se] freely 

and does it reflect your personal desire, subject, of course, to what you’ve 

said about wanting another lawyer?

A. Yes.

(Supplemental App. at 11.)

Additionally, the District Court appointed Fetterhoff as standby counsel. It 

discussed with Morris the option of using Fetterhoff at trial and then arguing ineffective 

assistance, if necessary. Morris opted not to, only permitting Fetterhoff to conduct three 

cross-examinations. Any challenge on appeal to the District Court’s Faretta inquiry 

would be frivolous.

III. CONCLUSION

For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm

the Appellant’s conviction, the District Court’s judgment and its sentence.