UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

CHRISTOPHER ROCCO VIGIL,

Defendant - Appellant.

No. 14-8007

(D.C. No. 2:08-CR-00108-SWS-2)

(D. Wyo.) 

ORDER AND JUDGMENT*

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

 

After pleading guilty to conspiracy to possess with intent to distribute 

methamphetamine, Christopher Rocco Vigil sought to withdraw his plea during the 

sentencing phase of his prosecution. His then-attorney, Nicholas Carter, informed the 

district court he could not join in that motion because he believed it lacked a factual or 

legal basis. By this time, several privately-retained and court-appointed counsel had 

withdrawn from Mr. Vigil’s case, and the district court had warned Mr. Vigil that Mr. 

Carter would be his last court-appointed attorney. The court gave Mr. Vigil the choice 

 

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 6, 2015

Elisabeth A. Shumaker 

Clerk of Court

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between following his attorney’s advice and not filing the motion, or waiving his right to 

counsel and filing the motion pro se. Mr. Vigil opted to proceed without counsel and 

filed the motion pro se. 

On appeal, Mr. Vigil argues his waiver of his Sixth Amendment right to counsel 

was not knowing and intelligent. Exercising jurisdiction under 28 U.S.C. § 1291, we 

conclude Mr. Vigil knowingly and intelligently waived his right to counsel and affirm the 

district court. 

I. BACKGROUND

On May 15, 2008, the government charged Mr. Vigil with conspiracy to possess 

with intent to distribute and to distribute methamphetamine in violation of 21 U.S.C. 

§§ 846 and 841(a)(1) and (b)(1)(A).1

 

 1

 Mr. Vigil’s first trial ended in a mistrial for reasons unrelated to Mr. Vigil. In 

that proceeding, Mr. Vigil’s first attorney apparently never appeared on his behalf, and 

Mr. Vigil’s second attorney withdrew for apparently benign reasons. His third and fourth 

attorneys, however, withdrew because Mr. Vigil “insist[ed] upon taking actions that 

[they] consider[ed] repugnant and with which [they were] in fundamental disagreement.” 

Supp. ROA, Vol. I at 59. As the second trial approached, the district court appointed a 

fifth attorney to represent Mr. Vigil, Thomas Jubin. On October 7, 2009, Mr. Vigil 

entered his guilty plea before the trial. On February 17, 2010, Mr. Vigil failed to appear 

for sentencing and fled, remaining at large for almost two years. Mr. Jubin moved to 

withdraw from representation. The court then appointed a sixth attorney, Joelle HadleyDay. Ms. Hadley-Day withdrew shortly after Mr. Vigil was apprehended because Mr. 

Vigil insisted upon filing a motion to withdraw his plea, an action she felt would be 

frivolous and thus in violation of her ethical obligations. She also expressed concern that 

Mr. Vigil was attempting to delay and deceive the court. Mr. Vigil’s seventh attorney, 

Nicholas Carter, who represented Mr. Vigil until Mr. Vigil waived his right to counsel, 

withdrew for similar reasons. 

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Pursuant to a plea agreement, Mr. Vigil pled guilty to one count of conspiracy to 

possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 

841(a)(1) and (b)(1)(A). The court permitted Mr. Vigil to remain out on bond for 

medical reasons related to a shoulder surgery and to undergo a follow-up test related to 

his donating a kidney. Mr. Vigil failed to self-surrender for sentencing and fled to 

Mexico. Shortly thereafter, Mr. Vigil’s attorney withdrew, and the district court 

appointed Joelle Hadley-Day to represent him. Mr. Vigil had sporadic contact with Ms. 

Hadley-Day until he was apprehended nearly two years later. Shortly after his return, 

Ms. Hadley-Day moved to withdraw. 

 The district court conducted three hearings relevant to Mr. Vigil’s waiver of 

counsel: the hearing on Ms. Hadley-Day’s motion to withdraw, the sentencing hearing, 

and the hearing on Mr. Vigil’s motion to withdraw his guilty plea. 

A. April 9, 2012 Hearing 

On April 9, 2012, the district court held a hearing on Ms. Hadley-Day’s motion to 

withdraw. Among other things, Ms. Hadley-Day recited the seven factors governing a 

plea-withdrawal articulated in United States v. Black, 201 F.3d 1296, 1299-1300 (10th 

Cir. 2000), and expressed her belief that Mr. Vigil’s request to withdraw his plea was 

without merit. The court granted Ms. Hadley-Day’s request, and agreed to appoint new 

counsel for Mr. Vigil one last time. It cautioned Mr. Vigil that failure to cooperate with 

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his next attorney, Mr. Carter, may be construed as a voluntary waiver of the right to 

counsel.2

 

B. March 22, 2013 Hearing 

The district court set sentencing for March 22, 2013. A few days before the 

hearing, Mr. Vigil wrote to the court requesting a new attorney because Mr. Carter 

refused to file a motion to withdraw his guilty plea. The court responded that it found no 

good cause for another lawyer to be appointed, denied the request, and advised Mr. Vigil 

to either proceed with Mr. Carter or represent himself. 

At the sentencing hearing, Mr. Vigil insisted on moving to withdraw his guilty 

plea, and Mr. Carter refused to join that motion. The district court gave Mr. Vigil two 

options: keep Mr. Carter as counsel and do not file the motion, or proceed pro se and file 

the motion himself. The court advised Mr. Vigil that filing the motion would be deemed 

 2

 The court stated: 

I have been advised by [the Federal Public Defender] that Mr. Carter . . . 

will likely be assigned to represent Mr. Vigil and is likely to be contacting 

you tomorrow, Mr. Vigil, to undertake that process. 

As I stated, I am willing to do this once; but if Mr. Carter is not able 

to satisfy your needs for legal counsel, you will be having yourself as a 

lawyer, and you will be forfeiting your right to an attorney in this process 

because of your inability to cooperate with the attorney that you have. So 

you understand that and we’ve discussed that. I just want to make sure it’s 

clear so that if this matter comes back, I’m not going to delay it any further. 

We’re going to go forward. So this is your opportunity to have a fresh set 

of eyes look at your situation and give you advice and represent your 

interests. 

Supp. ROA, Vol. III at 20. 

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a voluntary waiver of counsel, and warned him in an extended colloquy of the perils of 

proceeding in this manner. In relevant part, the court stated, 

In representing yourself, you’ll be placing yourself at the risks of not being 

learned in the law. Do you understand this? . . . [Y]ou will be placing 

yourself in a situation where you will be faced with the sentencing 

guidelines and the various issues—legal issues that may pertain to those, 

and you will also be trying to maneuver as a pro se attorney[.] . . . If you 

wish to go forward, I will let you file a motion to withdraw on your own, . . 

. [but] I can’t give you an attorney to pursue a course of action that they do 

not believe, in their own professional judgment and candor to the Court, 

they can pursue. . . . You’re aware of the charges against you and aware of 

the . . . issue with respect to sentencing. . . . You’re familiar with the case 

and the charges . . . to which you pled guilty. . . . And you understand that 

you’ll be representing yourself with respect to this matter on the issue of 

sentencing if the Court does not grant your motion to withdraw a change of 

plea? . . . There will be certain limitations in terms of the procedure at 

sentencing. There are the sentencing guidelines that will be used and 

utilized in this matter. You’re not completely familiar with those. You 

understand that? 

ROA, Vol. 3 at 25, 45, 48-49, 59. With some hesitation, Mr. Vigil indicated he 

understood the consequences of waiving this right and filed the motion. The court 

appointed Mr. Carter to act as standby counsel. 

C. April 26, 2013 Hearing and Subsequent Proceedings 

Shortly thereafter, on April 26, 2013, the district court held a hearing on Mr. 

Vigil’s pro se motion to withdraw his guilty plea. When Mr. Vigil requested that Mr. 

Carter “speak and take over as far as the proceedings go forward as far as questioning[,]” 

Mr. Carter agreed. Id. at 77. After one witness was examined, Mr. Vigil asked for a 

continuance because he had been unable to secure all of his witnesses. The court granted 

the continuance. 

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Before the hearing resumed, Mr. Vigil retained private counsel, Ronald Podboy. 

On May 14, 2013, the hearing continued with Mr. Podboy representing Mr. Vigil. Mr. 

Podboy represented Mr. Vigil for the remainder of the hearing and through sentencing.3

 

On November 1, 2013, the district court denied Mr. Vigil’s motion to withdraw his guilty 

plea. On January 21, 2014, the court sentenced Mr. Vigil to 168 months in prison and 

five years of supervised release. He timely appealed, arguing the court violated his right 

to counsel. 

II. DISCUSSION

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused 

shall . . . have the assistance of counsel for his defense.” U.S. Const. amend. VI. A 

defendant may waive that right if three conditions are met. “First, the defendant must 

voluntarily assert his intention to represent himself; second, defendant must knowingly 

and intelligently relinquish the benefits of representation by counsel; and third, defendant 

must make this assertion in a timely fashion.” United States v. Turner, 287 F.3d 980, 983 

(10th Cir. 2002) (quotations omitted). On appeal, Mr. Vigil argues that, although he 

acted voluntarily, he did not waive his Sixth Amendment right to counsel knowingly and 

intelligently. 

 3

 After Mr. Vigil was sentenced, he filed a pro se notice of appeal asking for courtappointed counsel to help with his appeal. We granted the request and appointed Megan 

Hayes to represent Mr. Vigil on appeal. 

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A. Standard of Review

In evaluating the validity of a waiver of the right to counsel, we review legal 

conclusions de novo and the underlying factual findings for clear error. Id. (citing United 

States v. Akers, 215 F.3d 1089, 1096 (10th Cir. 2000)). The violation of a defendant’s 

Sixth Amendment right to counsel by invalid waiver is not subject to harmless error 

review. United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir. 1997) (citing United 

States v. Allen, 895 F.2d 1577, 1580 (10th Cir. 1990)). 

B. Legal Background 

A defendant may waive the Sixth Amendment right to counsel and proceed pro se. 

Faretta v. California, 422 U.S. 806, 807 (1975); Allen, 895 F.2d at 1578. However, only 

a voluntary, knowing, and intelligent waiver is valid. Turner, 287 F.3d at 983. 

A defendant may waive the right to counsel through an affirmative request or “by 

his conduct, particularly when that conduct consists of tactics designed to delay the 

proceedings.” United States v. Hughes, 191 F.3d 1317, 1323 (10th Cir. 1999) (citing 

United States v. Willie, 941 F.2d 1384, 1389-91 (10th Cir. 1991)). But “[a] court is under 

no less obligation to ensure that waiver is knowing and intelligent when voluntariness is 

deduced from conduct than when it is asserted expressly.” Allen, 895 F.2d at 1579 (citing 

United States v. Welty, 674 F.2d 185, 189 (3d Cir. 1982)). The parties do not dispute that 

Mr. Vigil voluntarily waived his right to counsel by conduct. 

A waiver is knowing and intelligent when the record establishes “the defendant 

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representation at the time of his decision to proceed pro se.” Taylor, 113 F.3d at 1141 

(citing United States v. Padilla, 819 F.2d 952, 956 (10th Cir. 1987)). In making this 

determination, we consider the advisement given by the trial court, see, e.g., Allen, 895 

F.2d at 1578, the stage of the proceeding, Braun v. Ward, 190 F.3d 1181, 1186 (10th Cir. 

1999), and other relevant “facts and circumstances,” Padilla, 819 F.2d at 958. If these 

factors considered together indicate the defendant understood the magnitude and hazards 

of his or her undertaking, we will hold the waiver was knowing and intelligent. See id. 

“Ideally, the trial judge should conduct a thorough and comprehensive formal 

inquiry of the defendant on the record to demonstrate that the defendant is aware of the 

nature of the charges, the range of allowable punishments and possible defenses, and is 

fully informed of the risks of proceeding pro se.” Willie, 941 F.2d at 1388 (citing 

Faretta, 422 U.S. at 835; Von Moltke v. Gillies, 332 U.S. 708, 724 (1948); Allen, 895 

F.2d at 1578; Sanchez v. Mondragon, 858 F.2d 1462, 1467 (10th Cir.1988)). 

The stage of the proceedings affects the type of advisement necessary to make a 

waiver valid. As the Supreme Court has stated, to determine “the scope of the Sixth 

Amendment right to counsel, and the type of warnings and procedures that should be 

required before a waiver of that right will be recognized[,]” the court must ask “what 

purposes a lawyer can serve at the particular stage of the proceedings in question, and 

what assistance he could provide to an accused at that stage[.]” Braun, 190 F.3d at 1186 

(quoting Patterson v. Illinois, 487 U.S. 285, 298 (1988)). 

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At one end of the spectrum, some proceedings entail no right to counsel and, 

therefore, require no waiver or warning at all. Id. (citing Patterson, 487 U.S. at 298) 

(referring to a post-indictment photographic display identification proceeding). At the 

other end of the spectrum, the defendant’s interests in representation of counsel at trial 

are paramount.4

 “[R]ecognizing the enormous importance and role that an attorney plays 

at a criminal trial, we have imposed the most rigorous restrictions on the information that 

must be conveyed to a defendant, and the procedures that must be observed, before 

permitting him to waive his right to counsel at trial.” Id. (citing Patterson, 487 U.S. at 

298). When the waiver occurs at a stage between these two extremes, “the Court has 

‘defined the scope of the right to counsel by a pragmatic assessment of the usefulness of 

counsel to the accused at the particular proceeding, and the dangers to the accused of 

proceeding without counsel.’” Id. (quoting Patterson, 487 U.S. at 298). So long as the 

defendant is aware of these “‘basic facts,’” the waiver is knowing and intelligent. Id. at 

1187 (quoting Patterson, 487 U.S. at 298). 

A less extensive on-the-record advisement may therefore suffice for waivers 

occurring in after-trial proceedings. Braun, 190 F.3d at 1186; see also id. at 1187 

(quoting United States v. Salemo, 61 F.3d 214, 219 (3d Cir. 1995), and citing United 

 4

 Most, if not all, of the case law cited by the parties refers to the trial stage. 

Consequently, much of the analysis in these decisions is not specifically applicable to Mr. 

Vigil’s waiver, which occurred after the plea obviated the need for trial. Indeed, we have 

previously deemed the primary authority in Mr. Vigil’s brief—Faretta, 422 U.S. 806—

“inapposite” to waivers occurring after trial. Braun, 190 F.3d at 1187. 

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States v. Day, 998 F.2d 622, 626 (8th Cir. 1993)). At the plea-withdrawal hearing, a 

defendant can benefit from counsel because the attorney would understand how to 

navigate the substantive and procedural challenges, such as the grounds for withdrawal 

and the examination and cross-examination of witnesses. But the role of counsel at this 

stage is “more limited than the role of counsel at trial[,]” especially where the issue 

presented is discrete. Id. at 1187. Like at sentencing, the court’s inquiry “need not be as 

exhaustive and searching as a similar inquiry before the conclusion of trial.” Id. (quoting 

Salemo, 61 F.3d at 219).

Our decision in Braun is instructive. In Braun, the defendant pled nolo contendere 

to several crimes, including first degree murder. Id. at 1183. After sentencing, he moved 

to withdraw his plea and petitioned the court to appoint new counsel. Id. at 1183-84. At 

the hearing on the motion, the defendant represented himself. Id. at 1184. On appeal, we 

held his waiver of the right to counsel was knowing and intelligent because 

[t]he trial court informed Braun of the dangers of self-representation at the 

motion to withdraw plea hearing by warning Braun that he would be crossexamined if he took the stand and that he might have to cross-examine the 

state’s witnesses. The trial court also conveyed to Braun that his life was 

on the line. Braun made it clear that he understood the objective of the 

hearing, and importantly, Braun testified that he had consulted with counsel 

prior to the hearing. Thus, he had a clear idea of the strategy that he wished 

to pursue at the hearing. 

Id. at 1187. 

If the district court fails to conduct an on-the-record inquiry or does so 

inadequately, a defendant may still waive the right to counsel knowingly and intelligently 

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if the “surrounding facts and circumstances” “demonstrate that [the defendant] actually 

understood his right to counsel and the difficulties of pro se representation.” Willie, 941 

F.2d at 1388-89. We therefore look at the “record as a whole[,]” United States v. 

Weninger, 624 F.2d 163, 167 (10th Cir. 1980), considering, among other things, the 

defendant’s age, education, and experience with criminal trials and counsel, Padilla, 819 

F.2d at 958 (citing Maynard v. Meachum, 545 F.2d 273, 279 (1st Cir. 1976)); the 

defendant’s knowledge regarding the charges, penalties, and other matters pertinent to 

pro se representation as derived from other hearings in the matter, Willie, 941 F.2d at 

1389 (relying on the arraignment to find defendant was “notified of the charges against 

him and of the potential penalties involved”); and other actions taken by the defendant in 

the course of the proceedings that demonstrate knowledge and intelligence. Id. (relying 

on “pretrial pro se petitions” as evidence that defendant understood his right to counsel). 

When these factors demonstrate the defendant was aware of the right to counsel and the 

difficulties of pro se representation, we must conclude the waiver was knowing and 

intelligent. Id. 

C. Analysis

Mr. Vigil contends the district court failed to (1) explain the defenses to a 

conspiracy charge or advise him of the factors that would determine whether he could 

withdraw his guilty plea and (2) place him under oath. Aplt. Br. at 12. For the reasons 

below, we conclude Mr. Vigil knowingly and intelligently waived his right to counsel 

and affirm the district court. 

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1. Explaining Defenses to Conspiracy and Factors for Withdrawing a Guilty Plea 

Mr. Vigil contends his waiver was not knowing or intelligent because the district 

court “failed to advise him of the grounds he needed to establish to withdraw his guilty 

plea or possible defenses or mitigating circumstances that might be available to him.” Id. 

At this stage of the proceedings, this type of extensive advisement is not required. If a 

waiver occurs before trial, the district court must ensure the defendant is apprised of all 

“facts essential to a broad understanding of the whole matter[,]” which may include the 

matters identified by Mr. Vigil. Weninger, 624 F.2d at 164 (quoting Von Moltke, 332 

U.S. at 724). But at the plea-withdrawal and sentencing stage, the court need only 

address “‘basic facts’” regarding the usefulness of counsel and the hazards of pro se 

representation. Braun, 190 F.3d at 1186 (quoting Patterson, 487 U.S. at 298). 

The district court’s colloquy and the surrounding facts and circumstances made 

Mr. Vigil’s waiver knowing and intelligent.5

 When it became apparent at the sentencing 

hearing that Mr. Vigil was determined to withdraw his plea, the district court advised Mr. 

Vigil extensively about the perils of representing himself. It warned him that he would 

not have an attorney to file motions, advise him on the law and charges against him, 

handle sentencing, or navigate the remaining procedural requirements. The court 

 5

 Conceivably, if Mr. Vigil had succeeded in withdrawing his plea, he may have 

gone to trial. But given the fact that several attorneys had refused to file the motion on 

the basis of frivolity, the district court justifiably focused the waiver inquiry on the pleawithdrawal hearing because a trial was highly unlikely. If Mr. Vigil’s motion to 

withdraw his plea were granted, the district court could have reconsidered the waiver 

issue at that point. 

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explained to Mr. Vigil that he lacked expertise in these areas and would have to face 

these challenges alone if he wished to pursue his motion. Mr. Vigil indicated he 

understood these risks. This colloquy adequately informed Mr. Vigil of the usefulness of 

counsel and the dangers of proceeding pro se at this stage. 

Mr. Vigil’s waiver was also knowing and intelligent because the court had 

adequately apprised him of the nature and potential consequences of his charges. See 

Weninger, 624 F.2d at 167. When Mr. Vigil entered his guilty plea, for example, he was 

apprised of what he would face if he went to trial and what to expect at sentencing. The 

district court listed all the elements of his crime, explained the range of sentencing, and 

discussed how the sentence would ultimately be determined, including the relevance of 

aggravating factors, such as criminal history. Additionally, at the hearing on Ms. HadleyDay’s motion to withdraw, the court warned Mr. Vigil of the challenges he would face 

without an attorney—“the potential of cross-examining witnesses, complying with the 

Rules of . . . Criminal Procedure, and essentially have [himself] as a client.” Supp. ROA, 

Vol. III at 19. 

Contrary to Mr. Vigil’s contention, he was made aware of the defenses to 

conspiracy and the grounds needed to establish a plea-withdrawal. At Mr. Vigil’s change 

of plea hearing on October 7, 2009, the district court asked, “[H]as [Mr. Jubin] discussed 

with you, [Mr. Vigil], the defenses that you could raise to this charge of conspiracy?” 

Mr. Vigil replied, “Yes, sir.” ROA, Vol. 4 at 14. Further, before withdrawing, Mr. 

Carter indicated that he and Mr. Vigil “had very lengthy discussions about the motion to 

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withdraw, . . . its ‘chances,’ for lack of a better phrase, and what it means for him in a . . . 

variety of sort of ways.” ROA, Vol. 3 at 41. Mr. Vigil demonstrated this knowledge 

when he drafted a pro se plea-withdrawal motion before waiving his right to counsel, in 

which he relied on factors to withdraw a plea articulated in Black, 201 F.3d at 1299-300.6

 

The district court also provided Mr. Vigil with standby counsel to clarify any 

remaining questions he may have had. As standby counsel, Mr. Carter was “available to 

respond to questions and facilitate any information regarding the legal procedures and 

information that [Mr. Vigil] may [have] need[ed].” ROA, Vol. 3 at 54. Mr. Vigil does 

not contend Mr. Carter was unable or unwilling to answer any legal questions he 

considered necessary for his defense. 

Under the circumstances, Mr. Vigil understood the gravity of his right to counsel 

and the consequences of waiving that right. 

2. Obligation to Place Under Oath 

Mr. Vigil also argues his waiver was not knowing and intelligent because he was 

not put under oath at the sentencing hearing. Looking at the “record as a whole[,]” 

Weninger, 624 F.2d at 167, we disagree. Only one of the circumstances is that he was 

not under oath at the relevant hearings, but as described above, multiple circumstances—

e.g., repeated and clear explanations and warnings from the court—point unmistakably to 

waiver of counsel in this case. 

 6

 Mr. Vigil did not explicitly refer to this case, but his argument reflected an 

awareness and understanding of the seven factors it explains. 

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This conclusion finds further support in Phillips v. Murphy, 796 F.2d 1303, 1307 

(10th Cir. 1986), where we addressed the voluntariness of a guilty plea. The petitioner 

argued “that he should have been placed under oath at the time of the plea proceeding and 

that the failure to do so invalidates the proceeding.” Id. We held “statements made in 

open court are accepted in our circuit and we perceive no impediment in the State Court 

proceedings because the petitioner was not placed under oath at the time the plea 

proceedings were held.” Id. A plea hearing is similar to a hearing regarding a waiver of 

the right to counsel in that both involve waivers of constitutional rights. Thus, if open 

court statements not made under oath can be sufficient in the plea context, it follows they 

can be sufficient in the waiver-of-counsel context.7

 Mr. Vigil cites no law for the 

contrary proposition. 

 7 United States v. Ruiz-Bautista, 466 F. App’x 741 (10th Cir. 2012), an 

unpublished case, does not undercut our reasoning. In Ruiz-Bautista, we stated, “a court 

accepting a guilty plea must place the defendant under oath.” Id. at 744. We relied on 

Fed. R. Crim. P. 11(b) for this proposition, id., which actually states, “[b]efore the court 

accepts a plea of guilty or nolo contendere, the defendant may be placed under oath.” 

Fed. R. Crim. P. 11(b) (emphasis added). Whether an oath was mandatory was not at 

issue in Ruiz-Bautista, and was not mentioned beyond the court’s statement cited above. 

As an unpublished decision, Ruiz-Bautista does not have precedential value, and we do 

not believe its brief treatment of this issue has persuasive value here. 

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III. CONCLUSION

For the foregoing reasons, we affirm the district court.8

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge 

 8

 The court notes the two pending motions will be addressed in a separate order. 

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