In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-1405

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VINCENT TODD,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 96—Ronald A. Guzman, Judge.

____________

ARGUED NOVEMBER 8, 2004—DECIDED SEPTEMBER 7, 2005

____________

Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.

BAUER, Circuit Judge. A jury convicted defendantappellant Vincent Todd of attempting to board an airplane with a stun gun in violation of 49 U.S.C. § 46505.

He appeals, arguing that his conviction should be vacated

because he did not knowingly and voluntarily waive his

right to counsel and the prosecution failed to timely produce

evidence that was favorable to his defense. We affirm.

I. Background

On January 27, 2003, Todd was preparing to fly from
2 No. 04-1405

Chicago’s Midway International Airport to Los Angeles to

answer criminal charges in a gun possession case stemming

from a prior arrest. An x-ray machine operator at a Midway

Airport security checkpoint noticed on his screen that

Todd’s carry-on bag contained an opaque box. Todd agreed

to step out of line and to submit to a search of his bag. A

security employee opened Todd’s bag and found a box

sandwiched between a bottle a mouthwash and a can of

deodorant which contained a fully activated, 300,000-volt ZForce stun gun. Todd was arrested. He waived his Miranda

rights and explained to Special Agent Robert Amann that

he had purchased the stun gun for protection and that he

believed that people—particularly law enforcement

officers—were following him. He also described the stun

gun’s location in his bag and recalled that he had used the

deodorant the night before and the mouthwash earlier that

morning.

On January 28, 2003, Todd made his initial appearance

before Magistrate Judge Martin C. Ashman. Judge Ashman

advised Todd of his right to counsel and had the prosecutor

state the charge against Todd and its maximum penalty.

Todd acknowledged that he understood. The magistrate

judge then appointed Mary Judge of the Public Defender

Program to represent Todd. Two days later, Judge Ashman

granted Todd’s request for pretrial release but ordered that

he be confined to his father’s home and submit to electronic

monitoring.

On February 19, 2003, Todd made his first appearance

before District Judge Ronald A. Guzman. The government

sought to revoke Todd’s release because he had tampered

with his electronic monitoring bracelet. The government

also asked the court to order a psychiatric evaluation to

determine whether Todd posed a safety risk. In support

of its request, the government noted that Todd showed signs

of paranoia; in addition to believing that government agents

were following him, he was convinced that his present case
No. 04-1405 3

was part of a larger conspiracy against him. Defense

attorney Judge acknowledged Todd’s paranoia but assured

the court that Todd understood the seriousness of his

offense. She also stated that Todd would refuse to participate in a court-ordered psychiatric evaluation but would

agree to undergo an evaluation arranged by the Public

Defender Program. The government accepted her offer, and

the court revoked Todd’s release pending the results of the

evaluation.

On February 26, 2003, Todd was evaluated by Michael L.

Fields, Ph.D., of Human Resources Associates in Chicago.

Fields summarized his conclusions in a report, which stated

that Todd understood that bringing a stun gun on an

airplane was illegal and did not appear remorseful about

having done so. The report also indicated that Todd was

“intensely paranoid” and suffered from “what appeared to

be a probable delusional process.” R. at 52. Fields further

noted that Todd’s test results revealed “significant

psychopathology.” Id.

Todd did not agree with the psychologist’s assessment and

refused to disclose the results of the evaluation to the

district court or the government. This decision put him

at odds with defense counsel Judge, and Todd filed a motion

to have her dismissed. On April 1, 2003, the court granted

Todd’s motion and appointed a second attorney, Gene

Steingold, to take Judge’s place. Steingold represented Todd

for three months. During that time, Todd grew increasingly

suspicious of Steingold’s motives. Steingold, in turn,

complained that Todd’s distrust in him and the court made

working with Todd impossible. Nevertheless, Steingold

assured the court that Todd was competent and understood

the seriousness of the proceedings. The court tried to allay

Todd’s concerns and discourage him from seeking

Steingold’s dismissal, but was unsuccessful. On July 10, the

court issued Todd an ultimatum: He could continue with

Steingold or he could proceed without counsel, but the court
4 No. 04-1405

would not appoint a third attorney. Todd chose to proceed

pro se, and the court appointed Steingold standby counsel.

Todd proceeded without counsel for three weeks until

the next hearing. On August 4, 2003, the district court

reconsidered its decision and offered to appoint a third

attorney. Todd accepted, and the court appointed Gerald

Collins to represent him. Unfortunately, Todd grew suspicious of Collins’ motives, too. When the court inquired into

the problem, Collins explained that Todd’s psychiatric

evaluation indicated that he suffered from extreme paranoia. Yet, Collins added, Todd understood the charge

pending against him. On September 2, Collins submitted to

the court under seal a copy of Todd’s psychiatric evaluation.

This confirmed Todd’s suspicions about Collins, and Todd

moved to have Collins dismissed. On September 4, the court

granted Todd’s motion and appointed Collins as standby

counsel.

At Todd’s final pretrial hearing on October 2, 2003, the

district court thoroughly admonished Todd of the disadvantages of proceeding pro se. Undeterred, Todd went to trial

on October 8 with the aid of standby counsel. On October

10, Todd was convicted by a jury and sentenced to one year

in prison and three years’ supervised release. Todd asked

the court to vacate his conviction, claiming, among other

things, that the government had failed to timely produce

copies of papers favorable to his defense. The court denied

his motion for a new trial. Todd timely appealed to this

court.
No. 04-1405 5

1 Both parties cite United States v. Hoskins, 243 F.3d 407, 410

(7th Cir. 2001), for the proposition that the standard of review

for Todd’s waiver claim is de novo. We believe the proper standard

of review is for abuse of discretion. United States v. Avery, 208

F.3d 597, 601 (7th Cir. 2000); see also Faretta v. California, 422

U.S. 806, 812 n. 7 (1974) (noting that the state court of appeals

reviewed whether waiver was knowing and intelligent for abuse

of discretion); United States v. Berkowitz, 927 F.2d 1376, 1383 (7th

Cir. 1991) (recognizing that trial judge is in best position to assess

whether defendant’s waiver was knowing). However, we would

have reached the same result in this case had we reviewed the

district court’s decision de novo.

II. Discussion

Todd raises two issues on appeal. First, he argues that he

did not knowingly and intentionally waive his right to

counsel. Second, he contends that the government failed to

timely produce medical documents that he had in his

possession when arrested, and that the district court’s

finding to the contrary and subsequent denial of his motion

for a new trial was in error. We review both issues for abuse

of discretion.1 United States v. Avery, 208 F.3d 597, 601 (7th

Cir. 2000); United States v. Asher, 178 F.3d 486, 496 (7th

Cir. 1999).

A. Waiver of Counsel

Todd argues that he did not knowingly and intelligently

waive his right to counsel because the district court failed

to warn him of the risks of proceeding pro se and failed to

ensure that he understood those risks. He contends that

this violated his Sixth Amendment rights and that we

should vacate his conviction.

The Sixth Amendment guarantees the right to counsel not

just at trial, but during all “critical stages of the prosecution.” United States v. Lane, 804 F.2d 79, 81 (7th Cir. 1986)
6 No. 04-1405

(quoting United States v. Wade, 388 U.S. 218, 237 (1967)).

“A critical stage is one where potential substantial prejudice

to defendant’s rights inheres in the . . . confrontation [of the

accused by the prosecution] and where counsel’s abilities

can help avoid that prejudice.” United States v. O’Leary, 856

F.2d 1011, 1014 (7th Cir. 1988) (citing Coleman v. Alabama,

399 U.S. 1, 9 (1970)). It is settled that the indictment and

the arraignment are always starting points in the prosecution. Lane, 804 F.2d at 82. In fact, the Supreme Court has

recognized that the period from arraignment to trial is

“perhaps the most critical period of the proceedings.” Wade,

388 U.S. at 225 (quoting Powell v. Alabama, 287 U.S. 45, 57

(1932)). Since Todd was arraigned on February 19, 2003, his

Sixth Amendment right to counsel had attached well before

July 10, which was the first time that he elected to proceed

without an attorney.

A criminal defendant is entitled to waive his right to

counsel and to conduct his own defense when he knowingly

and intentionally elects to do so. Faretta v. California, 422

U.S. 806, 835 (1975). To determine whether a defendant’s

decision to proceed pro se was knowing and informed, we

consider four factors: (1) whether and to what extent the

district court conducted a formal hearing into the defendant’s decision to represent himself; (2) other evidence in

the record that establishes whether the defendant understood the dangers and disadvantages of self-representation;

(3) the background and experience of the defendant; and (4)

the context of the defendant’s decision to waive his right to

counsel. Avery, 208 F.3d at 601. The most reliable way for

a district court to ensure that the defendant has been

adequately warned of the dangers and disadvantages of

self-representation is to conduct a formal inquiry. United

States v. Maya-Gomez, 860 F.2d 706, 733 (7th Cir. 1988).

However, failure to conduct a full inquiry is not necessarily

fatal. “[T]he ultimate question is not what was said or not

said to the defendant but rather whether he in fact made a
No. 04-1405 7

2 Todd argues that the court’s October 2 warning was pro forma

and also encouraged him to proceed pro se. Since this factor

weighs in Todd’s favor, we choose not to address his claims. We

will say, however, that the court’s lengthy warning was neither

inadequate nor improperly suggestive. What is more, the

court previously warned Todd against proceeding without counsel.

Pretrial Tr. 6.20.03 at 6-7.

knowing and informed waiver of counsel.” Id. at 733.

The first factor that we consider is whether the district court made a formal inquiry into Todd’s decision to

proceed pro se. District judges are not expected to give “a

hypothetical lecture on criminal law.” Moya-Gomez, 860

F.2d at 732. However, the court should explore whether the

defendant realizes the difficulties he will encounter in

acting as his own attorney and advise the defendant that

proceeding pro se is unwise. Id. It is not enough for the

court merely to confirm that it is the defendant’s wish to

represent himself; rather, the court must impress upon

the defendant the disadvantages of self-representation.

Id. at 734.

Todd first elected to proceed without counsel on July 10,

2003, and did so again on September 4. Both times the

district court limited its inquiry to whether Todd understood that the court would appoint no further attorneys.

These inquiries were inadequate because the court failed to

probe whether Todd recognized the disadvantages of

proceeding pro se. Moya-Gomez, 860 F.2d at 734. When the

issue of representation reemerged on October 2, several

days before trial, the court thoroughly admonished Todd

of the dangers of proceeding without counsel.2

 Pretrial

Tr. 10.02.03 at 22-25. Yet, the adequacy of the October 2

warning did not compensate for the court’s failure to

properly warn Todd before allowing him to proceed pro se

for two, brief periods—from July 10 through August 4 and

from September 4 through October 2—prior to trial. This
8 No. 04-1405

weighs against finding that Todd’s waivers of his right to

counsel during critical pretrial proceedings were knowing

and intelligent. United States v. Bell, 901 F.2d 574, 578 (7th

Cir. 1990).

The second factor that we consider is whether there is

other evidence that Todd understood the dangers and

disadvantages of self-representation. We believe there

is. Some of this evidence came directly from statements that

Todd made. At his initial court appearance, Todd acknowledged that he understood the charge against him and the

penalties it carried. Pretrial Tr. 1.28.03 at 4. Todd identifies

occasions when he told the court that he did not understand

the charge or when he underestimated the potential

penalties, but those comments were contradicted by later

statements. For example, on July 30, 2003, Todd confirmed

that he had in fact received the “accurate charges, which

meant the indictment and everything that went with it.”

Pretrial Tr. 7.30.03 at 4. Further, Todd demonstrated his

understanding of the charge during his opening remarks by

declaring himself “not guilty of knowing that the stun gun

was in his bag while trying to board an aircraft.” Trial Tr.

at 17. The record reveals that the inconsistencies Todd

highlights were more likely caused by his obstreperousness

than any mental incapacity. In addition, when Todd first

elected to proceed pro se, he acknowledged that his lack of

skills would place him at a disadvantage: “[Steingold is] not

representing me. I’d rather lose it myself.” Pretrial Tr.

7.10.03 at 5. This was another indication that Todd realized

he was taking a risk by representing himself. Bell, 901 F.2d

at 578.

Furthermore, Judge Guzman and Todd’s three attorneys all believed that Todd recognized that the proceedings were serious. Defense attorney Judge told the court

that although Todd “has some mental health paranoid

kind of issues,” he is capable of understanding “the seriousness of the offense, he understands the consequences of his
No. 04-1405 9

behavior . . . .” Pretrial Tr. 2.19.03 at 10. Defense attorney

Steingold stated that “while my client has mental problems,

I think he understands the proceedings, and . . . I believe

he’s competent to stand trial, and I believe he was fit or

sane at the time this happened.” Pretrial Tr. 6.20.03 at 11-

12. Similarly, defense attorney Collins acknowledged that

although Todd’s psychiatric evaluation indicated that Todd

suffered from extreme paranoia, “based on my conversations

with him, he certainly has an understanding of the charges

and he’s able to cooperate with me.” Pretrial Tr. 8.18.03 at

9. In addition, Judge Guzman was impressed by Todd’s

understanding of how the events of September 11, 2001,

made the charge against him more serious than it otherwise

might have been. Pretrial Tr. 6.20.03 at 14.

Todd claims that, regardless of what his attorneys

and the judge believed, the district court erred by not

considering the results of his psychiatric evaluation. This

argument is puzzling because it signifies a 180-degree turn

from the position Todd staunchly held throughout the

pretrial and trial proceedings. The court inquired about the

evaluation at least six times prior to trial. Todd adamantly

refused to disclose the results of his evaluation because he

believed that its conclusions were wrong and would compromise his defense. Pretrial Tr. 9.4.03 at 12. In fact, Todd

prohibited his attorneys from even mentioning the evaluation. The only reason why the psychiatric evaluation

appears in the record is because defense attorney Collins

submitted a copy to the court, an action that Todd viewed

as evidence of betrayal. The court should not be held to

blame for Todd’s intransigence.

Moreover, though the results of Todd’s psychiatric

evaluation are disquieting, they do not demonstrate that his

waivers were not knowing or voluntary. The psychologist

who authored the report stated that Todd “knew it was

illegal, or at least inappropriate to have a weapon with him
10 No. 04-1405

going on to a plane, and he did appear to be somewhat

dismayed that he made such a foolish error.” R. at 52. The

psychologist was also understandably alarmed about Todd’s

extreme paranoia. Judge Guzman and Todd’s attorneys

were concerned, too, but they reached the unanimous

conclusion that Todd was capable of understanding the

seriousness of the proceedings. See United States v. Hill,

252 F.3d 919, 925 (7th Cir. 2001) (observing that any person

competent to stand trial is able to waive counsel). We find

that their observations carry more weight than those of the

psychologist, who formed his conclusions after observing

Todd for only a day. Todd argues that his evaluation should

nonetheless have prompted the court to engage in the type

of reality testing that we advocated in United States v.

Sandles, 23 F.3d 1121, 1127 (7th Cir. 1994). We disagree. In

Sandles, the defendant had declared he would present an

insanity defense at trial; Todd, by contrast, maintained

throughout the proceedings that he was competent, and his

attorneys and the judge ultimately agreed. This weighs

heavily in favor of finding that Todd’s waiver was knowing and intelligent.

The third factor that we consider is Todd’s background

and experience. “In this context, background and experience

includes educational achievements, prior experience with

the legal system (including prior pro se representation), and

performance at trial in the case at bar.” Sandles, 23 F.3d at

1128-29 (internal quotes omitted). The district court did not

inquire into Todd’s background, but that error was not fatal.

Moya-Gomez, 860 F.2d at 736. Although the record shows

that Todd has only a tenth-grade education, he demonstrated at trial that he could represent himself. For example, Todd made motions, offered evidence that was admitted, conducted cross-examinations, and tried to impeach a

witness. The record also indicates that Todd had substantial experience with the judicial system; he had been

arrested over a dozen times, with two prior convictions (one
No. 04-1405 11

for contempt of court and one for assault and battery),

and—significantly—had at least one prior weapons charge.

Despite the lack of evidence that Todd represented himself

at those proceedings, we have held that a defendant’s prior

experience with the judicial system tends to show that he

understood that the charge against him was serious and

that he was accepting a risk by representing himself.

United States v. Egwaoje, 335 F.3d 579, 585-86 (7th Cir.

2003). Therefore, this factor weighs in favor of finding a

valid waiver, as well.

The fourth factor that we consider is the context of Todd’s

decision to proceed pro se. We have held that a defendant

who waives his right to counsel for strategic reasons tends

to do so knowingly. See Bell, 901 F.2d at 579 (finding that

a defendant’s tactical decision to proceed pro se as a result

of his attorney’s unwillingness to present an alibi defense

supports the finding of a knowing waiver). Todd chose to

represent himself because he believed that his courtappointed attorneys would employ a weak and ineffective

defense. He baldly stated that he did not trust courtappointed attorneys: “I don’t want a court-appointed

attorney. I do not trust the courts.” Pretrial Tr. 10.2.03 at

25. In addition, we have found that although standby

counsel is no substitute for actual counsel, a defendant’s use

of standby counsel shows an appreciation for the difficulties

of self-representation. Sandles, 23 F.3d at 1128. Todd

deferred several times at trial to his standby counsel on

matters pertaining to objections and jury instructions.

Thus, this factor also weighs in favor of finding a valid

waiver.

Although the district court should have conducted a

formal inquiry into Todd’s understanding of the risks of

proceeding without counsel when he first waived his right

to an attorney, the error was not fatal because the remaining factors weigh in favor of finding a knowing and intelligent waiver. Bell, 901 F.2d at 579; Moya-Gomez, 860 F.2d
12 No. 04-1405

at 738-39. Therefore, we agree with the court that Todd

understood the risks of proceeding pro se and nonetheless

knowingly and intelligently waived his right to counsel.

B. The Brady Claim

Todd also contends that his conviction should be vacated

because the government did not timely produce records

favorable to his defense. On October 2, 2003, the district

court ordered the government to produce documents that

were taken from Todd upon his arrest. These materials

included a report by the Department of Veterans Affairs

that showed Todd suffered from memory loss as a result of a

head injury sustained while serving in the United States

Army. In its order denying Todd’s motion for a new trial,

the court found that the government had hand-delivered

copies of the requested materials to Todd’s attention at the

Metropolitan Correction Center and to standby defense

attorney Collins on August 6, two days before the start of

trial. United States v. Todd, No. 03 CR 96, 2003 WL

22802375, at *1 (N.D.Ill. Nov. 25, 2003). The court

also found that on the morning of August 8, the first day of

trial, Collins set copies of the report on his table, which

made them readily available to Todd. Id. Todd maintains

that he did not receive the materials until the evening

of August 10, by which time the case had been submitted to

the jury. He contends that even if he had access to the

documents on August 6, we should still consider them

suppressed because the government did not provide Todd

with sufficient time to incorporate the materials in his

defense.

Brady v. Maryland, 373 U.S. 83 (1963), prohibits government prosecutors from withholding evidence that is favorable to the defense. Id. at 87. The suppression of such

evidence deprives the defendant of a fair trial and thus

violates due process. Id. To prevail on a Brady claim, a

defendant must establish that: (1) the government sup-
No. 04-1405 13

pressed the evidence; (2) the suppressed evidence was

favorable to the defendant; and (3) the suppressed evidence

was material to an issue at trial. United States v. O’Hare,

301 F.3d 563, 569 (7th Cir. 2002). Evidence is suppressed

for Brady purposes when (1) the prosecution failed to

disclose the evidence in time for the defendant to make use

of it, and (2) the evidence was not otherwise available to the

defendant through the exercise of reasonable diligence. Id.

(citing Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001)).

The district court’s decision that the government did

not suppress Todd’s reports was not an abuse of discretion. Because Todd was intimately familiar with the

information contained in the documents in question, he

should have been able to utilize that information in his

defense when the documents were delivered two days before

trial. Even if we assume that Todd did not have access to

the documents until the morning of trial, he still could have

quickly incorporated them into his defense because he was

familiar with the material. Had Todd needed the information sooner, he could have subpoenaed the Department of

Veterans Affairs, which he had done previously to obtain

other materials. Pretrial Tr. 6.5.03 at 2. Moreover, the fact

that Todd gave no indication at trial that he had not

received the materials was yet another indication that they

were not suppressed for Brady purposes. R. at 86.

More importantly, Todd has not demonstrated that the

reports were material. Evidence is material for Brady

purposes “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.” Kyles v. Whitley, 514

U.S. 419, 433-34 (1995). Todd maintains that this evidence

was material because it would have shown that he did not

knowingly attempt to bring a stun gun though airport

security, but rather forgot that it was in his carry-on bag.

We disagree that the reports would have made a significant

difference. Todd told the jury about his disability in both his
14 No. 04-1405

opening statement and closing remarks. Trial Tr. at 16-17,

239. Apart from those comments, he chose not to testify or

present evidence on the issue. Thus, our confidence in the

outcome of Todd’s trial is not shaken by the documents’

exclusion.

III. Conclusion

For the foregoing reasons, we AFFIRM Todd’s conviction and the district court’s denial of his motion for a new

trial.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-7-05