2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-21-2002

USA v. Peppers

Precedential or Non-Precedential: Precedential

Docket No. 01-2348

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Recommended Citation

"USA v. Peppers" (2002). 2002 Decisions. Paper 527.

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PRECEDENTIAL 

 Filed August 21, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-2348 

UNITED STATES OF AMERICA 

v. 

RONNIE PEPPERS, 

 Appellant 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Criminal No. 00-cr-00105) 

District Judge: Honorable Sylvia H. Rambo 

Argued: March 4, 2002 

Before: ALITO, RENDELL, and HALL,* 

Circuit Judges 

(Filed: August 21, 2002) 

 Daniel I. Siegel, Esq. [ARGUED] 

 Office of Federal Public Defender 

 100 Chestnut Street, Suite 306 

 Harrisburg, PA 17101 

 Counsel for Appellant 

_________________________________________________________________ 

* Honorable Cynthia Holcomb Hall, Senior Judge of the United States 

Court of Appeals for the Ninth Circuit, sitting by designation. 

 

 Theodore B. Smith, III, Esq. 

 [ARGUED] 

 Office of United States Attorney 

 Federal Building, Suite 220 

 228 Walnut Street 

 P.O. Box 11754 

 Harrisburg, PA 17108 

 Counsel for Appellee 

OPINION OF THE COURT 

RENDELL, Circuit Judge. 

On November 28, 2000, a federal jury found Ronnie 

Peppers guilty of the first degree murder of a drug dealer, 

Jorge ("Cuban George") Drake, conspiracy to distribute and 

possess with the intent to distribute controlled substances, 

use of a firearm during and in relation to a drug trafficking 

crime, and being a felon in possession of a firearm. Before 

us, Peppers raises three allegations of error: that the 
prosecution failed to adduce sufficient proof of all of the 

elements of the alleged crimes, that the District Court erred 

in not allowing Peppers to proceed pro se after he requested 

to do so, and that the District Court erred in its 

determination that the victim’s identification of his 

assailant was not admissible as a dying declaration. For the 

reasons set forth below, we find Peppers’ challenge to the 

sufficiency of the evidence to be without merit. We do, 

however, agree with Peppers that the District Court erred in 

its handling of his request to proceed pro se . We will 

accordingly remand for a new trial. Additionally, we find 

that the District Court had the discretion to admit or 

preclude the proffered statement of identification, and, 

while perhaps it could have expressed the basis for its 

ruling more clearly, we do not find that it abused its 

discretion in refusing to admit the out of court statement. 

I. Statement of Facts 

Lisa Watson lived with her mother in Harrisburg. Her 

brother, John, lived close by. On August 13, 1997, at 

 2 

 

approximately 2:00 a.m., Jorge Drake was taking Lisa 

Watson home, and had stopped the car near her residence. 

A man wearing a black ski mask and dark clothing 

approached the driver’s window and shot Drake in the head 

at close range, causing blood and brain matter to spatter 

upon Lisa Watson, who was sitting in the front passenger 

seat. According to eyewitnesses, the shooter reached into 

the car and removed something, yelled to Lisa Watson to 

get out, and then ran away. Drake did not die immediately. 

In fact, later that night, though heavily sedated and 

partially paralyzed, he responded to an inquiry as to who 

shot him with the single word, "Jun."1 When subsequently 

asked by police who Jun was, Drake stated that he was 

"his boy," but refused to provide further details. Drake’s exwife told police that, on the day after he was shot, Drake 

told her that John Watson had shot him. Another person 

who visited Drake in the hospital also told police that Drake 

had said "Juney and John" when asked who shot him.2 

Although it appeared that Drake might recover, after being 

transferred to a rehabilitation facility he died from his 

injuries on September 10, 1997. Peppers was charged in a 

seventeen count indictment, and he pled not guilty to the 

offenses charged. On October 20, 2000, Peppers wrote to 

the District Court, requesting permission to file a pro se 

interlocutory appeal and to represent himself. He also 

requested a hearing to address his requests. The District 

Court responded by letter on October 25, 2000,3 stating 

only: 

 Please be advised that your correspondence to me 

 dated October 20, 2000, has been forwarded to your 

 counsel of record. I do not entertain motions, or 

 requests that could be deemed motions, from litigants 

 who are represented by counsel. 

_________________________________________________________________ 
1. Counsel has informed us that "Jun" is pronounced "June." 

2. It is not clear from the record whether Drake said "Juney" and "John" 

or "Juney and John." For the purposes of our analysis the distinction is 

immaterial. 

3. Although the letter is dated October 25, 2000, it was docketed 

September 24, 2001. 

 3 

 

On November 2, 2000, Peppers was arraigned on the 

Second Superseding Indictment, and a hearing was held on 

Motions in Limine by the government to exclude Drake’s 

statements identifying "Jun" as the person who shot him. 

During the course of that hearing, the government 

represented that it had been unable to locate Drake’s exwife, Josephine Williams, one of the persons to whom 

Drake had identified the shooter. Shortly thereafter, 

Peppers’ counsel indicated that Peppers desired to address 

the Court. The following exchange took place. 

 Mr. Welch: Mr. Peppers has asked that he be allowed 

 to address the Court. As Your Honor is aware, he sent 

 a letter to the Court asking to be able to proceed pro 

 se. I have no idea what he wants to speak to right now, 

 Your Honor. 

 The Court: Go ahead, Mr. Peppers. 

 Mr. Peppers (misidentified in the transcript as Mr. 

 Welch): I just wanted to speak not to the letter, but 

 with reference to some of the witnesses. I wanted to 

 speak in reference to Josephine Williams and some 

 other witnesses that they are looking for. 

On November 6, 2000, just before jury selection was to 

begin, Peppers orally requested to proceed pro se. The 

District Court proceeded with jury selection and then 

conducted a colloquy with Peppers. On November 15, the 

District Court issued a written order denying Peppers’ oral 

request. On November 16, the District Court granted the 

government’s motion in limine to exclude Drake’s 

statements. On November 20, trial began. 

The witnesses at trial included -- among others-- Lisa 

Watson, the two persons who were with Peppers the night 

of the murder, one of whom claimed to be his lookout,4 and 

two neighbors who were eyewitnesses to the shooting. The 

identification testimony was not entirely consistent. 

Testimony was also presented that Drake had been a drug 

dealer who dealt in "ass kicker" heroin, and that Peppers 

_________________________________________________________________ 

4. After the preliminary hearing and prior to trial, Waters, the person 

claiming to be his lookout, died. The preliminary hearing testimony was 

read into the record at trial. 
 4 

 

was also a drug dealer, dealing primarily in crack cocaine. 

The thrust of Peppers’ defense was that, while he was in 

the vicinity of the shooting at the time in question, he did 

not commit the murder. Peppers was convicted on all 

counts, and was sentenced to life imprisonment plus five 

years. He filed a timely appeal. 

II. Statement of Jurisdiction 

The District Court had jurisdiction pursuant to 18 U.S.C. 

S 3231. Because Peppers is appealing from a final judgment 

of conviction, we have jurisdiction pursuant to 28 U.S.C. 

S 1291. 

III. Peppers’ Claims on Appeal 

A. Sufficiency of the Evidence as to Each Element of the 

Crime 

1. Standard of Review 

We apply a "particularly deferential" standard of review to 

a challenge to the sufficiency of evidence supporting a jury 

verdict. United States v. Cothran, 286 F.3d 173, 175 (3d 

Cir. 2002) (quoting United States v. Dent, 149 F.3d 180, 187 

(3d Cir. 1998)). If "any rational juror" could have found the 

challenged elements beyond a reasonable doubt, viewing 

the evidence in the manner that is most favorable to the 

government, neither reweighing evidence, nor making an 

independent determination as to witnesses’ credibility, we 

will sustain the verdict. Id. Further, Peppers concedes that 

he did not preserve an objection to the sufficiency of the 

evidence. We will therefore examine the record only for 

plain error. United States v. Wolfe, 245 F.3d 257, 260-61 

(3d Cir. 2001) (citing United States v. Turcks , 41 F.3d 893, 

898 (3d Cir. 1994)). Thus, Peppers must establish that the 

error prejudiced the jury’s verdict, and even if it did, we 

may -- but are not mandated -- to correct the error. 

Turcks, 41 F.3d at 897. In determining whether to correct 

the error, we consider the impact of the error on the 

"fairness, integrity or public reputation of judicial 

proceedings." Id. We do not need to go so far here, however, 

for we find that there is evidence -- though not 

 5 

 

overwhelming or entirely consistent -- from which the 

jurors could have found each element of the challenged 

offense. 

2. Discussion 

The government’s charge that Peppers violated S 924(j) 

(Count I of the Second Superseding Indictment) alleged that 

he 
 did intentionally and knowingly unlawfully cause the 

 death of Jorge Drake through the use of a firearm that 

 the defendant, Ronnie Peppers, used and carried 

 during and in relation to a drug trafficking crime for 

 which he may be prosecuted in a court of the United 

 States, that is conspiracy to distribute and possess 

 with the intent to distribute controlled substances. 

Peppers now claims that even if the evidence at trial 

permitted the jury to find that Peppers shot and robbed 

Drake, there was no evidence that the killing was in any 

way related to a conspiracy to distribute or to possess with 

the intent to distribute controlled substances. There was 

abundant testimony in the record that Peppers was a drug 

dealer.5 But Peppers argues that the government’s strongest 

evidence that he ever conspired with someone to distribute 

controlled substances related to events that took place after 

Drake had died, namely, a purported agreement between 

Peppers and David Miller to distribute crack cocaine to a 

person in Lancaster in November 1997. There was no 

testimony presented to link Miller to Drake. However, Miller 

testified that Peppers had provided him with substances for 

distribution over the course of six months, even though the 

only testimony about an express agreement between the 

two to distribute controlled substances occurred in 

November 1997. We have little difficulty concluding that the 

jury could infer from Miller’s testimony that an agreement 

to distribute with Miller had been in effect for some time 

prior to Drake’s death. Further, and perhaps more 

importantly, there was evidence directly related to a 

_________________________________________________________________ 

5. For example, Detective Heffner testified at trial that during an 

interview with Peppers, Peppers had stated "that he was selling drugs 

during this time, that he was selling a lot of drugs." 

 6 

 

conspiracy with Waters, the lookout during Drake’s 

shooting, to distribute controlled substances on the night 

in question. Waters testified at a preliminary hearing prior 

to his death, so the preliminary hearing testimony was read 

into the record at trial. He testified that he and Peppers had 

seen Drake on the afternoon of Drake’s death, and Peppers 

had arranged for Waters to act as lookout while Peppers 

robbed Drake. On cross-examination, Waters was asked 

what Peppers said to him specifically. He replied,"I’m going 

to do a stick-up, watch my back, you get half the money 

and the drugs." Also on cross-examination, Waters testified 

that Peppers was going to "hit" Drake that night, and that 

"hit means rob." When asked if details were discussed, 

Waters replied: "Just rob him, take his drugs." In his direct 

testimony, Waters stated that after the murder, Peppers 

gave him "three bags of crack." On cross-examination, the 

following exchange took place: 

 Q All you got out of it was some crack cocaine? 

 A Yeah. 
 Q Did you see that crack cocaine? 

 A I tricked with it.6 

 Q How much was it worth? 

 A $60. 

 Q Is that all you got out of this? 

 A Yeah. 

 Q So a man was killed and all you got out of it was 

 $60? 

_________________________________________________________________ 

6. At trial, the attorneys held a conversation at sidebar that reflected two 

different understandings of the term "tricked" in Waters’ testimony. 

Defense counsel indicated that he had interpreted the phrase as 

referring to Waters’ attempt to "solicit the affections" of the young 

woman who was in the car with Peppers and Waters. The prosecution 

stated that he would "clarify this through Detective Heffner. When 

Michael Waters referred to tricking, my understanding is he was 

referring to doing drugs with somebody as opposed to being involved in 

some sort of amorous situation." The meaning of"tricking" was not 

clarified in Heffner’s subsequent testimony. 

 7 

 

 A Yes, sir. 

The two neighborhood eyewitnesses both testified that 

they saw the shooter reach into the car and remove 

something. This testimony would clearly support a finding 

that one of the purposes of the robbery was to take drugs, 

that Peppers had promised Waters that he would share the 

proceeds from the robbery with him, and that Peppers had 

taken drugs from Drake, had given part of those drugs to 

Waters, and Waters had in turn sold those drugs for $60. 

Thus, we find that any rational juror could have found that 

Peppers caused Drake’s death "intentionally and knowingly 

unlawfully . . . through the use of a firearm that[he] used 

and carried during and in relation to a drug trafficking 

crime for which he may be prosecuted in a court of the 

United States, that is conspiracy to distribute and possess 

with the intent to distribute controlled substances." 

Accordingly, Peppers’ challenge to the sufficiency of the 

evidence is without merit. 

B. Should Peppers Have Been Allowed to Proceed pro se? 

1. Standard of Review 

As the issue is whether there was a knowing and 

intelligent waiver, the legal conclusion as to whether the 

record so indicates is subject to plenary review. United 

States v. Stubbs, 281 F.3d 109, 113 n.2 (3d Cir. 2002) 

(citing Virgin Islands v. Charles, 72 F.3d 401, 404 (3d Cir. 
1995)). As we recognized in Charles, when our review is as 

to facts found by the Court, we employ clearly erroneous 

review. 72 F.3d at 404 (citing Miller v. Fenton , 474 U.S. 

104, 112 (1985)). The right of a defendant to represent 

himself is structural; as such, "its denial is not amenable to 

‘harmless error’ analysis. The right is either respected or 

denied; its deprivation cannot be harmless." McKaskle v. 

Wiggins, 465 U.S. 168, 177 n.8 (1984). 

2. Discussion 

Peppers claims that he raised the issue of proceeding pro 

se three times: on October 20, 2000, in his letter to the 

court; on November 6, 2000, just prior to jury selection; 

 8 

 

and in his post-trial motions. In his October 20 letter, 

Peppers stated:7 

 (1) After numerous unsuccessful attempts to get my 

 attorney, Allen Welch, to have client/attorney 

 consultation meetings with me, so that we can prepare 

 for trial and have, if not, a effective defense, then at 

 least an adequate defense. Mr. Welch, however, did 

 finally meet with me on the above mentioned date, 

 which is hardly adequate to prepare for trial which 

 commence in two weeks, November 6, 2000. 

 (2) Defendant and counsel have numerous conflicts 

 of interest, from unfiled requested Pre-Trial motions, 

 motions to the court for release of evidence that is in 

 the custody of the government for forensic testing, 

 requested exhibit’s for trial, to counsel’s refusal to seek 

 permission from the court to file a interlocutory appeal 

 of the courts ruling. 

 (3) Counsel failing to keep defendant informed of 

 the status of his case so that defendant can make 

 intelligent decisions concerning general strategy, and 

 informed decisions regarding the representation. 

 (4) Counsel failing to inform defendant of any 

 motions submitted to the court in defendants behalf 

 and/or consult with defendant prior to the filing of Pre- 

 Trial motions. 

 (5) Counsel failing to submit requested Pre-Trial 

 motions in defendants behalf. 

 (6) So defendant can locate witness’ where counsel, 

 thus far has made no effort to locate/interview defense 

 witness’ that are on the defense witness list that was 

 supplied to counsel by defendant. 

 Finally, defendant request that the court conduct a 

 hearing consistent with this correspondence, permit 

 defendant to file a Pro Se, interlocutory appeal, and/or 

 permit defendant to represent himself. 
 Your Honor, I believe that for the foregoing reasons 

_________________________________________________________________ 

7. The text has been replicated precisely as it appeared in the original. 

 9 

 

 that it would not be in the interest of justice to conduct 

 court when such issue’s are before the court, and when 

 counsels competence is in question. 

(Emphasis added). 

The Court responded to Pepper’s letter by forwarding it to 

his counsel, and writing to Peppers, informing him that it 

would not entertain "motions, or requests that could be 

deemed motions from litigants who are represented by 

counsel." On November 2, Peppers’ counsel -- but not 

Peppers himself -- raised the issue of Peppers’ proceeding 

pro se. Through his counsel, Peppers reiterated his desire 

to proceed pro se on November 6, 2000, just prior to jury 

selection. The following interchange took place at sidebar. 

 Mr. Welch: Mr. Peppers just this instant came in and 

 sat down beside me and said he wants to represent 

 himself. 

 The Court: No, he is not going to. 

 Mr. Welch: I understand. 

 The Court: Tell him he can raise the matter again 

 after I have finished jury selection. I have another one 

 after this. I don’t want to do it in front of the panel. I 

 need to put a colloquy on the record. 

 Mr. Welch: I understand. 

After dismissing prospective jurors for lunch, the following 

colloquy took place. 

 The Court: Mr. Peppers, your counsel indicated that 

 you told him that you preferred to proceed in this 

 proceeding pro se. That is without counsel. Do you still 

 wish to advise the Court as to whether this is your 

 position? 

 The Defendant: Yes, it is, Your Honor. 

 The Court: Mr. Peppers, you have some very, very 

 serious charges against you in this matter. You have 

 had no experience in doing this before. Conspiracy is a 

 complicated matter. So is the killing of an individual in 

 the course of a drug transaction. 

 10 

 
 You also have a lot of witnesses that the government 

 needs to obtain on your behalf. He is out there able to 

 do that. You are confined. You will have every 

 opportunity to convey your wishes to Mr. Welch, to 

 present questions to him to present to the jury. 

 You may place on the record your request. Do you 

 want to put it on the record now? 

 The Defendant: To represent myself? 

 The Court: Yes. 

 The Defendant: Yes, I would like to do that. 

 The Court: Put the microphone in front of you, 

 please. I need to know why. 

 The Defendant: Why? 

 The Court: Yes. 

 The Defendant: Well, a lot of the details with a lot of 

 the pretrial issues, I felt didn’t get done. And I felt that 

 those areas were neglected. Therefore, I am not sure 

 about my defense being neglected. 

 The Court: What in this case has been neglected, and 

 how do you presume you will be able to rectify it? 

 The Defendant: Well, I feel that I can best serve my 

 defense by me questioning the witnesses. I don’t 

 believe that Mr. Welch knows what type of information 

 to cross-examine to elicit from these witnesses. 

 The Court: Why is that? Have you told him what to 

 elicit? 

 The Defendant: I haven’t seen -- 

 The Court: Wait a minute. Wait a minute. Go ahead. 

 The Defendant: I haven’t seen my attorney. I haven’t 

 seen him. None of my correspondence was responded 

 to. I don’t know exactly where my defense lies and 

 exactly what strategies are going to be used for my 

 defense. 

 The Court: Well, this case is scheduled for the 20th. 

 There are two weeks in between. I am directing Mr. 

 11 

 

 Welch to sit down with you and go over the strategy 

 that he intends. You can certainly supply him with the 

 questions that you want him to address to your 

 witnesses. 

 You will have the opportunity while you are sitting 
 there at trial to present -- you will have a pad and 

 paper. You can pass over to him questions. Of course, 

 it is up to him to decide whether or not the question is 

 relevant and whether or not it would be objected to. 

 Do you understand that? 

At the Court’s prompting, Peppers listed other areas of 

dissatisfaction with his attorney, including the failure to 

test evidence, to prepare a map as a trial exhibit, to file a 

pretrial motion challenging Count VII, and to file an 

interlocutory appeal of the Court’s refusal to admit Drake’s 

statements. The Court discussed these areas with Peppers 

and his counsel, and then stated: 

 The Court: All right. I will take his motion under 

 advisement. It is not likely to be granted. I will let you 

 know today. Court is in recess until two o’clock. 

On November 14, the District Court issued an order 

denying Peppers’ "oral motion" to represent himself. After 

summarizing the colloquy, the Court concluded that 

because Defendant had "no legal training or expertise," and 

since, at the time of the Court’s determination, there was 

less than one week before trial, Peppers’ request would be 

denied. The Court noted that "to allow Defendant to 

represent himself is equivalent to allowing him to stand 

trial with no representation at all." 

On post-trial motions, Peppers again raised the issue of 

the denial to proceed pro se. The Court prefaced its 

statement by noting that "there was never a formal motion 

presented." It further noted that since Peppers had not 

pursued the issue at the November 2 hearing, "there was 

no basis for the court to grant the request." 

We conclude that the District Court misapprehended the 

nature of its duty in response to Peppers’ initial request to 

proceed pro se. Its responsibility was to assess whether the 

defendant’s assertion was unequivocal, and, if so, whether 

 12 

 

his waiver of his constitutional right was done voluntarily, 

knowingly, and with an understanding of the ramifications 

and consequences. We view this aspect of a district court’s 

duty to be very important and challenging, yet one as to 

which there is little guidance. We write so as to explore this 

issue based on our caselaw. 

 a. The Nature of the Right 

The right to counsel embodied within the Sixth 

Amendment carries as its corollary the right to proceed pro 

se. These rights are both respected within our 

jurisprudential tradition, although, since a person cannot 

secure the right to proceed pro se without sacrificing the 

right to counsel, we have required defendants to assert the 

right to proceed pro se affirmatively and unequivocally, and 
we have placed on the court the burden of establishing that 

the defendant who does so acts voluntarily, and that he 

understands both the scope of the right sacrificed and the 

restrictions and challenges that he will face. Peppers has 

asserted the right to proceed pro se. 

As the Supreme Court explained in the seminal case in 

this area, Faretta v. California, 422 U.S. 806, 820 (1975), 

the Sixth Amendment 

 speaks of the ‘assistance’ of counsel, and an assistant, 

 however expert, is still an assistant. The language and 

 spirit of the Sixth Amendment contemplate that 

 counsel, like the other defense tools guaranteed by the 

 Amendment, shall be an aid to a willing defendant-- 

 not an organ of the State interposed between an 

 unwilling defendant and his right to defend himself 

 personally. 

Id. "An unwanted counsel ‘represents’ the defendant only 

through a tenuous and unacceptable legal fiction. Unless 

the accused has acquiesced in such representation, the 

defense presented is not the defense guaranteed him by the 

Constitution, for, in a very real sense, it is not his defense."8 

_________________________________________________________________ 

8. Despite this broad language, however, the District Court’s 

characterization of defendant as "entitled to counsel of his own choosing" 

is not completely accurate. See, e.g., Wheat v. United States, 486 U.S. 

 13 

 

Id. at 821. Thus, 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 834. 

In Faretta, the court had initially, though reluctantly, 

allowed the defendant to proceed pro se, but reserved the 

right to revoke Faretta’s "privilege" to represent himself if "it 

later appeared that Faretta was unable adequately to 

represent himself." Id. at 808, 811 n.4. After querying the 

defendant as to the number of exceptions to the hearsay 

rule and the number of and grounds for challenging jurors 

for cause, the court concluded that "the ends of justice and 

requirements of due process require that the prior order 

permitting the defendant to represent himself in pro per 

should be and is hereby revoked." Id. at 811 & n.4. 

Noting that the right of self-representation "has been 

protected by statute since the beginnings of our Nation," 

the Supreme Court found that the right of selfrepresentation was supported by both the structure of the 

Sixth Amendment itself and the jurisprudence that gave 

rise to it. Id. at 812, 818. It specifically rejected the trial 

court’s paternalistic determination that it should ensure 

that the defendant was capable of defending himself well in 

order to be allowed to defend himself. 

 We need make no assessment of how well or poorly 
 Faretta had mastered the intricacies of the hearsay 

 rule and the California code provisions that govern 

 challenges of potential jurors on voir dire. For his 

 technical legal knowledge, as such, was not relevant to 

 an assessment of his knowing exercise of the right to 

 defend himself. 

Id. at 836. 

The Court noted approvingly that Faretta’s request was 

made "weeks" before trial and was clear and unequivocal, 

_________________________________________________________________ 

153, 159 (1988) ("Thus, while the right to select and be represented by 

one’s preferred attorney is comprehended by the Sixth Amendment, the 

essential aim of the 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."). 

 14 

 

and that it was evident from the record that Faretta was 

"literate, competent, and understanding." Id at 835. 

 b. The Responsibility of the Court 

It is the tension between the right to have counsel and 

the right to represent oneself that places upon the trial 

court the weighty responsibility of conducting a sufficiently 

penetrating inquiry to satisfy itself that the defendant’s 

waiver of counsel is knowing and understanding as well as 

voluntary. The Supreme Court’s jurisprudence reflects a 

long tradition of concern for persons haled into a legal 

system that they cannot understand and in need of 

assistance to help them navigate. See, e.g., Von Moltke v. 

Gillies, 332 U.S. 708, 720 (1948). But requiring a trial court 

to be particularly vigilant when a defendant waives his right 

to counsel even predates Von Moltke. 

 This protecting duty imposes the serious and weighty 

 responsibility upon the trial judge of determining 

 whether there is an intelligent and competent waiver by 

 the accused. While an accused may waive the right to 

 counsel, whether there is a proper waiver should be 

 clearly determined by the trial court, and it would be 

 fitting and appropriate for that determination to appear 

 upon the record. 

Johnson v. Zerbst, 304 U.S. 458, 465 (1938). Citing to 

Zerbst, the Von Moltke Court stressed that the discourse 

with the defendant is not "a mere procedural formality" but 

that it requires a judge to 

 investigate as long and as thoroughly as the 

 circumstances of the case before him demand. The fact 

 that an accused may tell him that he is informed of his 

 right to counsel and desires to waive this right does not 

 automatically end the judge’s responsibility. To be valid 

 such waiver must be made with an apprehension of the 
 nature of the charges, the statutory offenses included 

 within them, the range of allowable punishments 

 thereunder, possible defenses to the charges and 

 circumstances in mitigation thereof, and all other facts 

 essential to a broad understanding of the whole matter. 

 A judge can make certain that an accused’s professed 

 15 

 

 waiver of counsel is understandingly and wisely made 

 only from a penetrating and comprehensive 

 examination of all the circumstances under which such 

 a plea is rendered. 

 This case graphically illustrates that a mere routine 

 inquiry -- the asking of several standard questions 

 followed by the signing of a standard written waiver of 

 counsel -- may leave a judge entirely unaware of the 

 facts essential to an informed decision that an accused 

 has executed a valid waiver of his right to counsel. 

Von Moltke, 332 U.S. at 723-24.9 

As far back as 1965 -- ten years prior to Faretta -- we 

also began to articulate the scope of the court’s 

responsibility when a defendant seeks to proceed pro se, 

drawing upon Von Moltke. See United States v. Washington, 

341 F.2d 277, 285 (3d Cir. 1965). We have refined those 

requirements to reflect the obligations placed upon the 

district court through Faretta and its progeny. 

_________________________________________________________________ 

9. Since Faretta, the Court has revisited various aspects of selfrepresentation on several occasions. E.g., In re Little, 404 U.S. 553, 555 

(1972) (A defendant who represents himself is "entitled to as much 

latitude in conducting his defense as we have held is enjoyed by counsel 

vigorously espousing a client’s cause."); McKaskle v. Wiggins, 465 U.S. 

168, 177 (1984) (providing guidance on trial court discretion to utilize 

standby counsel, and clarifying that "In determining whether a 

defendant’s Faretta rights have been respected, the primary focus must 

be on whether the defendant had a fair chance to present his case in his 

own way. Faretta itself dealt with the defendant’s affirmative right to 

participate, not with the limits on standby counsel’s additional 

involvement."); Patterson v. Illinois, 487 U.S. 285, 293 (1988) (permitting 

a simplified waiver of counsel for post-indictment questioning); Godinez 

v. Moran, 509 U.S. 389, 399-400 (1993) (holding that the standard for 

competency to stand trial is the same as the standard to plead guilty or 

to waive counsel, except that a person seeking to waive a constitutional 

right must also demonstrate that the waiver is knowing and voluntary; 

holding further that the competency at issue is the competency to waive 

the right, not the competency to perform as counsel.); Martinez v. Court 

of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 154 (2000) 

(finding the right of self-representation on direct appeal not mandated by 

the United States constitution). 

 16 

 

In skeletal form, the requirements are these. 
 1. The defendant must assert his desire to proceed 

 pro se clearly and unequivocally. See, e.g. , Buhl v. 

 Cooksey, 233 F.3d 783, 791 (3d Cir. 2000).10 

 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." Charles , 72 F.3d 

 at 404. 

 3. The court must "assure itself " that the defendant 

 is competent to stand trial. Id.11 

Because a request to dismiss counsel just before (or 

during) trial may well require a continuance, our court has 

also developed a "good cause" test, whereby a court 

confronted with a time-sensitive request to proceed absent 

current counsel should ascertain the defendant’s reasons 

for his dissatisfaction with counsel. United States v. Welty, 

674 F.2d 185, 187 (3d Cir. 1982). Accord, Virgin Islands v. 

James, 934 F.2d 468, 471 (3d Cir. 1991); Buhl, 233 F.3d at 

_________________________________________________________________ 

10. We have determined that the Court’s approval of Faretta’s request as 

clear and unequivocal is in actuality a prerequisite for assertion of a 

right to self-representation. Buhl v. Cooksey , 233 F.3d 783, 792 (3d Cir. 

2000). The Tenth Circuit Court of Appeals agrees."[W]e are persuaded 

that the right is one which the defendant must clearly and unequivocally 

assert before trial, as the accused did in Faretta. This is necessary 

because the trial court faces the difficult related problem of ascertaining 

whether there is an intelligent and voluntary waiver of the right to 

counsel." United States v. Bennett, 539 F.2d 45, 50 (10th Cir. 1976) 

(internal citations omitted). While requiring a clear and unequivocal 

request by the defendant, the First Circuit Court of Appeals places the 

burden on the court to elicit whether the request is clear and 

unequivocal: "it is generally incumbent upon the courts to elicit that 

elevated degree of clarity through a detailed inquiry." United States v. 

Proctor, 166 F.3d 396, 403 (1st Cir. 1999). 

11. No question as to Peppers’ competency to waive his right to counsel 

appears in the record; hence, we have no reason to address this aspect 

of the Faretta inquiry here. We note that this evaluation does not test 

one’s legal competency to represent oneself. 

 17 

 

798. If there is good cause, the court is required to grant a 

continuance and appoint new counsel, unless the 

defendant expressly wishes to proceed pro se. If the court 

does not find good cause, the court must inform the 

defendant that he can either proceed with current counsel, 

or represent himself. See, e.g., Welty , 674 F.2d at 187. If he 

indicates a desire to represent himself, the court must then 

conduct a Faretta inquiry. Id. 

While the identification of the defendant’s reasons for 
wishing to dismiss his current counsel is more pertinent 

when substitute counsel is desired, we have noted that his 

reasons may also inform the knowing, understanding, and 

voluntary inquiry as well. Buhl, 233 F. 3d at 798-99; see 

also Stubbs, 281 F.3d at 117 (noting with respect to a midtrial request to proceed pro se that "the defendant’s motives 

may still be relevant as they may shed light on whether the 

defendant’s waiver has been made knowingly and 

intelligently"); Jermyn v. Horn, 266 F.3d 257, 290 (3d Cir. 

2001) (perceiving an assessment by the court of the 

defendant’s intentions in seeking to take over his defense 

mid-trial as pertinent to a determination of whether his 

waiver of counsel was "knowing"); Charles , 72 F.3d at 404 

(stating without elaboration that a court "must make an 

inquiry regarding the defendant’s reasons for the request" 

as the first step in a Faretta inquiry). We note that every 

case in which we have iterated the "good cause" test has 

involved a request that is "on the eve of trial" or, as was the 

case in Stubbs, during trial.12 

In sum, a district court cannot make an informed 

decision as to the knowing and voluntary nature of a 

defendant’s request to proceed pro se without a thorough 

inquiry, on the record, to assure itself that the defendant 

_________________________________________________________________ 

12. One request was made following trial. There, the defendant sought 

new counsel prior to his sentencing and in conjunction with a request 

for continuance -- after three earlier requests for a continuance of the 

sentencing date had already been granted. We mentioned the inquiry 

into reasons as one guideline "for conducting a proper inquiry following 

a defendant’s request for substitution or waiver of counsel" but noted 

that the defendant had clearly expressed his reasons, thus relieving the 

court of any burden of inquiry. United States v. Salemo, 61 F.3d 214, 

218, 221 (3d Cir. 1995). 

 18 

 

fully apprehends the nature of the charges against him, the 

perils of self-representation, and the requirements that will 

be placed upon him. This calls for specific forewarning of 

the risks that foregoing counsel’s trained representation 

entails. Once the court has fulfilled those responsibilities, 

however, if the defendant still elects to proceed pro se, the 

court must permit him to do so. 

 c. The Court’s Inquiry and Conclusions as to Peppers 

As noted earlier, Peppers first mentioned the issue of 

proceeding pro se in a letter/motion to the Court on 

October 20, 2000, and his attorney referred to the matter 

again on November 2. The Court never dealt directly with 

the October 20 letter, referring the matter to counsel, and 

in its order of November 20 it seemed to downplay the 

import of its contents based on Peppers’ conduct at the 

November 2 hearing.13 Whether or not the October 20 letter 

would have been sufficient to require the District Court to 

inquire about Peppers’ desire to represent himself, the 

November 6 colloquy clearly sufficed. As the Eleventh 
Circuit said in Dorman v. Wainwright: 

 To invoke his Sixth Amendment right under Faretta a 

 defendant does not need to recite some talismanic 

 formula hoping to open the eyes and ears of the court 

 to his request. Insofar as the desire to proceed pro se 

 is concerned, petitioner must do no more than state 

 his request, either orally or in writing, unambiguously 

 to the court so that no reasonable person can say that 

 the request was not made. 

798 F.2d 1358, 1366 (11th Cir. 1986) (quoted in part in 

_________________________________________________________________ 

13. While referring the matter to counsel might be an appropriate 

response to some direct correspondence from defendants, it seems 

inappropriate when the defendant is confiding in the court about 

difficulties he is experiencing with the very counsel the court chides him 

for bypassing. Also, with respect to the November 2 hearing, the District 

Court order seemed to characterize Peppers’ failure to assert his desire 

to represent himself as somehow reflecting equivocation. While not 

necessary to our ruling on this issue, we think the District Court 

overread Peppers’ intent, given that the focus of the November 2 hearing 

was on a different issue. 

 19 

 

Buhl, 233 F.3d at 790 n.9 and Stubbs, 281 F.3d at 118 

n.5). Although the District Court did conduct a colloquy 

with him at that time, we view it as inadequate under our 

precedent. While the Court did seek to ascertain the basis 

for Peppers’ dissatisfaction with counsel -- his reasons -- 

it did not satisfactorily address the heart of the Faretta 

inquiry. 

As stated above, the second, and, in this case, core 

responsibility that the court bears is to inquire as 

thoroughly as needed to satisfy itself that the defendant 

understands "the nature of the charges, the range of 

possible punishment, potential defenses, technical 

problems that the defendant may encounter, and any other 

facts important to a general understanding of the risks 

involved." Charles, 72 F.3d at 404. The Court never sought 

to determine whether Peppers understood the risks-- the 

structural limitations or perils of representing himself -- 

but focused instead on the ways that Peppers could be 

accommodated by counsel’s representation: 

 Mr. Peppers, you have some very, very serious 

 charges against you in this matter. You have had no 

 experience in doing this before. Conspiracy is a 

 complicated matter. So is the killing of an individual in 

 the course of a drug transaction. 

 You also have a lot of witnesses that the government 

 needs to obtain on your behalf. He is out there able to 

 do that. You are confined. You will have every 

 opportunity to convey your wishes to Mr. Welch, to 

 present questions to him to present to the jury. 
 . . . 

 Well, this case is scheduled for the 20th. There are 

 two weeks in between. I am directing Mr. Welch to sit 

 down with you and go over the strategy that he 

 intends. You can certainly supply him with the 

 questions that you want him to address to your 

 witnesses. 

 You will have the opportunity while you are sitting 

 there at trial to present -- you will have a pad and 

 paper. You can pass over to him questions. Of course, 

 20 

 

 it is up to him to decide whether or not the question is 

 relevant and whether or not it would be objected to. 

Although the Court characterized this exchange as 

"advis[ing] Defendant of the dangers of proceeding pro se," 

it did not apprise him of the full range of risks and 

structural limitations that would be attendant upon 

Peppers should he proceed pro se; nor does it even attempt 

to ascertain the extent of Peppers’ understanding. The 

responsibility of determining whether a waiver is knowing 

and voluntary can be fulfilled only through adequate 

inquiry and thorough explanation by the District Court. 

Absent a proper inquiry, the District Court had no basis 

upon which to deny -- or to grant -- Peppers’ request for 

self-representation. McMahon v. Fulcomer, 821 F.2d 934, 

946 (3d Cir. 1987). 

The Court’s conclusion to deny Peppers’ motion to 

proceed pro se was based largely on its determination that, 

taking into consideration the fact that Peppers was charged 

with serious offenses and incarcerated, he "is unable to 

contact or interview witnesses and prepare a case. 

Furthermore, Defendant has no legal training or expertise, 

and to allow Defendant to represent himself is equivalent to 

allowing him to stand trial with no representation at all." 

The Court’s concern over Peppers’ skill and legal 

competency misses the mark. Federal courts have stated 

repeatedly that a court must not evaluate whether the 

defendant is competent to represent himself as part of its 

determination of whether he is knowingly asserting the 

right to self-representation: 

 "The record affirmatively shows that Faretta was 

 literate, competent, and understanding, and that he 

 was voluntarily exercising his informed free will . . . . 

 We need make no assessment of how well or poorly 

 Faretta had mastered the intricacies of the hearsay 

 rule and the California code provisions that govern 

 challenges of potential jurors on voir dire. For his 

 technical legal knowledge, as such, was not relevant to 

 an assessment of his knowing exercise of the right to 

 defend himself." 
Faretta, 422 U.S. at 835-36. See also Lopez v. Thompson, 

202 F.3d 1110, 1119 (9th Cir. 2000) ("In assessing waiver 

 21 

 

of counsel, the trial judge is required to focus on the 

defendant’s understanding of the importance of counsel, 

not the defendant’s understanding of the substantive law or 

the procedural details."); United States v. McKinley, 58 F.3d 

1475,1481 (10th Cir. 1995) (listing cases finding error when 

a court denies self-representation based on its evaluation of 

a defendant’s skills or preparation). 

We have had occasion several times to describe the 

elements of what a court should or should not do in 

questioning a defendant when a request to proceed pro se 

is made.14 It presents a challenge for a judge, and it seems 

that invariably such a request comes at a time when it 

diverts from trial preparation. Just as there is no talismanic 

formula for a defendant’s expression of desire in this 

regard, there is no talismanic formula for the court’s 

inquiry. We have not hesitated to require that the 

defendant be informed of all risks and consequences 

associated with his decision for self-representation. 

 To ensure that an accused is aware of the pitfalls 

 possible in self-representation, "the district court 

 should advise him in unequivocal terms both of the 

 technical problems he may encounter in acting as his 

 own attorney and of the risks he takes if his defense 

 efforts are unsuccessful." See United States v. Welty, 

 674 F.2d 185, 188 (3d Cir. 1982). As a matter of 

 constitutional law, we have imposed a clear and 

 unambiguous obligation upon a trial judge who is 

 faced with an accused who states merely that he is 

 aware of his right to counsel but wishes to waive that 

 right . . . . At a minimum, "to be valid [a defendant’s] 

 waiver must be made with an apprehension of the 

 nature of the charges, the statutory offenses included 

 within them, the range of allowable punishments 

 thereunder, possible defenses to the charges and 

 circumstances in mitigation thereof, and all other facts 

 essential to a broad understanding of the whole 

 matter." 674 F.2d at 188-189 (quoting Von Moltke v. 

_________________________________________________________________ 

14. To recite only a few examples, we set forth the elements of an 

appropriate colloquy in Welty, 674 F.2d at 188-89; Charles, 72 F.3d at 

406-09; Buhl, 233 F.3d at 798-800; Stubbs, 281 F.3d at 117-19. 

 22 

 

 Gillies, 332 U.S. 708, 724 (1948) (plurality opinion) 

 (reversing denial of habeas petition because standard, 

 pre-printed waiver of counsel form insufficient to 

 satisfy Sixth Amendment)). We have held that an 

 accused’s protection under the Sixth Amendment Right 

 to Counsel is not satisfied when a trial judge has failed 
 to conduct "a penetrating and comprehensive 

 examination" of the accused’s waiver attempt which 

 ensures that the accused is knowledgeable about his 

 decision, even when the colloquy skips just one of the 

 above factors. See Welty, 674 F.2d at 189 (no waiver 

 where court merely informed defendant that self- 

 representation is "inadvisable") (quoting Von Moltke, 

 332 U.S. at 724 (plurality opinion)); see also United 

 States v. Moskovits, 86 F.3d 1303, 1308 (3d Cir. 1996) 

 (no waiver notwithstanding trial judge’s detailed 

 colloquy with defendant because judge failed to state 

 that he was authorized to impose greater sentence 

 than that imposed in defendant’s first trial). 

Henderson v. Frank, 155 F.3d 159, 166-67 (3d Cir. 1998) 

(granting a writ of habeas corpus where a petitioner had 

signed a "generic waiver form" and a petition to proceed pro 

se, but the trial court had not conducted a detailed 

colloquy). Nevertheless, we think that the following 

questions (derived in large part from Federal Judicial 

Center, Benchbook for U.S. District Court Judges S 1.02 (4th 

ed. 2000)) would prove a useful framework for the court to 

assure itself that a defendant’s decision to proceed pro se is 

knowing and voluntary. 

1. Have you ever studied law?* 

2. Have you ever represented yourself in a criminal 

action? 

3. Do you understand that you are charged with these 

crimes: [state the crimes with which the defendant is 

charged]? 

4. Do you understand that the U.S. Sentencing 

Commission has issued sentencing guidelines that will be 

used in determining your sentence if you are found guilty? 

5. Do you understand that if you are found guilty of the 

crime charged in Count 1, the Court must impose an 

 23 

 

assessment of $___, and could sentence you to as many as 

___ years in prison and fine you as much as $ ___? [Ask 

defendant this question for each count of the indictment or 

information.] 

6. Do you understand that if you are found guilty of 

more than one of these crimes, this Court can order that 

the sentences be served consecutively, that is, one after 

another? 

7. Do you understand that if you represent yourself, you 

are on your own? I cannot tell you -- or even advise you -- 

as to how you should try your case. 

7a. Do you know what defenses there might be to the 

offenses with which you are charged? Do you understand 
that an attorney may be aware of ways of defending against 

these charges that may not occur to you since you are not 

a lawyer? Do you understand that I cannot give you any 

advice about these matters? 

8. Are you familiar with the Federal Rules of Evidence?* 

8a. 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? 

9. Are you familiar with the Federal Rules of Criminal 

Procedure?* 

9a. Do you understand that these rules govern the way 

a criminal action is tried in federal court? Do you 

understand that you must follow these rules? 

10. Do you understand that you must proceed by 

calling witnesses and asking them questions, and that, 

except when and if you yourself testify, you will not be 

permitted to tell the jury matters that you wish them to 

consider as evidence? 

10a. Do you understand that it may be much easier for 

an attorney to contact potential witnesses, gather evidence, 

and question witnesses than it may be for you? 

11. I must advise you that in my opinion a trained 

lawyer would defend you far better than you could defend 

 24 

 

yourself. I think it 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. 

12. Now, in light of the penalties 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? 

13. Are you making this decision freely, and does it 

reflect your personal desire? 

14. Do you have any questions, or do you want me to 

clarify or explain further anything that we have discussed 

here? 

If the answers to the foregoing questions satisfy the court 

that the defendant knowingly and voluntarily desires to 

proceed pro se, the court would then state the necessary 

conclusions, such as: 

I find that the defendant has knowingly and voluntarily 
waived the right to counsel. I will therefore permit the 

defendant to represent himself (or herself). 

 * As is evident from the follow-up questions, the 

 purpose of inquiring as to the defendant’s 

 knowledge is only to ascertain the extent to which 

 the defendant understands the procedure that is to 

 be followed during the course of the trial, not to 

 assess his legal knowledge or training to determine 

 his ability to represent himself well. 

Of course, if, during the course of inquiry, it appears that 

the defendant needs further explanation, or it is evident 

that the defendant does not comprehend what the court is 

saying or asking, the court will need to probe further.15 

Here, the Court did not make a proper inquiry. Because 

error in assessing whether a defendant may represent 

_________________________________________________________________ 

15. No issue as to whether appointment of standby counsel would be 

appropriate or advisable is before us. 

 25 

 

himself is structural, it can never be harmless. E.g., Stubbs, 

281 F.3d at 121 (citing McKaskle v. Wiggins, 465 U.S. at 

177). Accordingly, we must remand this case to the District 

Court for a new trial. 

C. Did the District Court Correctly Exclude Drake’s Dying 

Declaration?16 

1. Standard of Review 

To the extent that our review of the District Court’s 

determination implicates its interpretation of the Federal 

Rules of Evidence, our review is plenary, but where the 

District Court’s ruling was "based on a permissible 

interpretation of a rule," we review only for an abuse of 

discretion. United States v. Console, 13 F.3d 641, 656 (3d 

Cir. 1993). 

2. Discussion 

Peppers asks us to determine that the District Court 

erred in refusing to admit the statements made by Jorge 

Drake after he was shot, purportedly identifying the actual 

shooter to various persons. Although multiple statements 

were made, only the one made to Officer Rivera as Peppers 

was being prepared for transport to Hershey Medical 

Center, when he responded to the officer’s question as to 

who shot him with "Jun," may arguably be characterized as 

a dying declaration, and we will confine ourselves to 

discussing that statement. 

A dying declaration is admissible as an exception to 

hearsay if the declarant makes the statement while 

"conscious of impending death and under the belief that 
there is no chance of recovery." Webb v. Lane , 922 F.2d 

390, 395 (7th Cir. 1991). A court may infer knowledge of 

the seriousness of a declarant’s condition from the"nature 

and extent of the wounds inflicted." Id. (quoting Mattox v. 

United States, 156 U.S. 237, 251 (1895)). Accord, 

_________________________________________________________________ 

16. Since we have ordered a new trial, we need not rely on this issue as 

a grounds for reversal. However, we address it here in recognition that 

the issue could recur when the case is retried. We confine our discussion 

to the record in the first trial, realizing that a different situation may be 

presented during the subsequent proceedings. 

 26 

 

Commonwealth v. Cooley, 348 A.2d 103, 108 n.8 (Pa. 1975) 

(listing cases and types of wounds supporting an inference 

that the declarant sensed death was imminent). 

In the District Court’s ruling on the admissibility of the 

evidence, it said, "At the hearing, Defendant was unable to 

produce any evidence or testimony regarding the victim’s 

physical or mental state at the time these statements were 

made." During the hearing on the government’s motion in 

limine, the Court had stated that it "needed some testimony 

regarding the mental status of the soon to be deceased at 

the time that he allegedly gave the statement to Officer 

Rivera." Counsel explained that he had tried to contact the 

physician who treated Drake in the emergency room, but 

that physician had left the hospital’s employ, and he had 

been unable to locate him. Counsel did stipulate that the 

facts as to Drake’s physical condition were as they had 

appeared in the report of the officer who interviewed Drake, 

namely that at the time of the interview, Drake was heavily 

sedated, his speech was slurred, and he had a bullet lodged 

in his head.17 The District Court granted the government’s 

motion in limine to exclude the statements. 

Obviously, since the declarant had died, we -- and the 

District Court -- have no way of ascertaining precisely what 

Drake knew or what his state of mind was at the time. 

Even evidence regarding one statement made to him might 

not be conclusive, since we could not be sure whether other 

statements were made, how the information was conveyed 

to him, and how he received and responded to it. 

Accordingly, it is clearly not only permissible, but indeed 

necessary, consistent with our caselaw, that the trial judge 

draw and rely on inferences from the facts of record, 

including the type of wounds inflicted and the nature of the 

declarant’s injuries. See Webb, 922 F.2d at 395. 

_________________________________________________________________ 

17. These facts are taken from the government’s brief on the motion in 

limine, derived from Officer Rivera’s report and stipulated to by Peppers’ 

counsel at the hearing on the motion in limine. Officer Rivera’s report 

also states that Drake was paralyzed on the left side of his body. Peppers 

does not dispute the contents of the report. Peppers has moved to 

include the report, but given the lack of argument as to its contents, 

especially in light of the fact that it was not technically part of the record 
at trial, we do not need to include it in the record on appeal. 

 27 

 

Here, the only information we have as to what medical 

personnel may have communicated about Drake’s condition 

immediately following the shooting was provided not to 

Drake himself, but to Officer Rivera. The officer was 

informed by an emergency physician that Drake had"a 

good chance for recovery," but there is no evidence in the 

record as to statements made to Drake, or his own beliefs 

or information about his condition. The District Court 

refused to admit the declaration about "Jun," expressing 

concern that it had not been provided with sufficient 

information as to Drake’s perceptions of his condition at 

the time he made his statements. This rationale leaves us 

uncertain as to the District Court’s understanding of its 

task. On the one hand, the District Court may have felt 

that it was the defendant’s burden to provide direct proof, 

and that it was not enough for it to rely on inferences 

drawn from the record, including Drake’s condition and the 

types of wounds inflicted. On the other hand, the District 

Court might have inferred from the information conveyed to 

Officer Rivera that Drake would have been told that he was 

not in danger of death, so something more was needed to 

convince the Court that the circumstances of Drake’s injury 

and condition made the exception applicable. See , e.g., 

David v. Pueblo Supermarket of St. Thomas, 740 F.2d 230, 

235 (3d Cir. 1984) (noting that the burden of establishing 

an exception to hearsay -- there, an excited utterance -- 

lies on the movant of the evidence). The District Court erred 

if the first explanation -- namely that a court must be 

provided with direct proof -- was at the heart of its ruling. 

If the second rationale -- that the inferences to be drawn 

from the proof were inadequate to tip the scales in favor of 

admissibility -- motivated the Court, there would be no 

abuse of discretion. Ordinarily, we would remand to the 

District Court for clarification. See, e.g., United States v. 

Sriyuth, 98 F.3d 739, 744 n.8 (3d Cir. 1996) (noting that 

where a District Court has not adequately set forth its basis 

for determining the admissibility of evidence (there under 

Rule 403), we may remand to the district court for 

clarification or even for a new trial). But here, as noted 

above, the issue may be raised anew at retrial, and on 

remand the Court should revisit this ruling if the Court 

misapprehended the evidence it should consider or the 

Defendant’s burden. 

 28 

 

IV. Conclusion 

For the reasons stated above, we will VACATE the 

Judgment and Commitment Order and REMAND for a new 

trial. 

A True Copy: 

Teste: 
 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 29