### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30151

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. ALMOND J. RICHARDSON, Defendant - Appellant

Appeals from the United States District Court for the Middle District of Louisiana USDC No. 3:07-CR-34-1

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges. PER CURIAM: * Almond Richardson stands convicted of s elling drugs to confidential informants on two occasions, the second occasion while on bail for his first crime. Richardson was indicted in seven counts stemming from both incidents. Before trial, Richardson filed several motions to sup p r e ss evidence, a motion for a Franks hearing, and a motion to proceed pro se . The district court denied all of these motions. Richardson was convicted of five counts a n d a c quitted on two counts. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D April 27 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-30151 Document: 00511838278 Page: 1 Date Filed: 04/27/2012No. 11-30151

O n ap p e al, Richardson argues that the district court erred by denyin g e ach of his motions and thus raises Fourth and Sixth Amendment issues. We find no

m e ri t to Richardson’s contentions that the district court erred by denying h i s motions t o suppress and his motion for a Franks hearing, and we therefore AFFIRM the district court’s rulings on those motio n s . W e do, however, hold 1 that th e district court erred by denying Richardson’s motion to proceed pro se . We therefore hold that Richardson is entitled to a new trial and thus VACATE all convictions and sentences and R E MAND for further proceedings not inconsistent with this opinion. I. During the last week o f February 2006, the East Baton Rouge Sheriff’s Department received a tip that there was rampant drug dealing in Apartment Two of the O’Neal Lane apartment complex. On March 1, four members of the E a s t Baton Rouge Sheriff’s Department’s Special Community Anti-Crime Tea m , Officers Kenneth Huber, Malcom Hall, Kama Roussell and John Knapp, began surveillance of Apartment Two. O f f ic er H ub er , the leader of the surveillance operation, who was positioned inside one of the O’Neal Lane Apartments, observed people entering and exiting through Apartment Two’s side door. Officer Huber saw a white m a le visit Apartment Two, walk to the complex’s parkin g l o t , a n d sell drugs to Barry Anderson, a white m a l e s itting in a pick-up truck. Officer Huber radioed Officers Roussell and Knapp about the drug deal, and they followed Anderson’s truck out of the apartment complex’s parking lot. The officers stopped the truck and searched Anderson for drugs. The officers found a rock of crack cocaine in Anderson’s pocket and arrested him.

A Fran kshearing isa hearing to det erm ine w heth er a poli ce of fic er’ s af fid avit use d 1 to obta in a se arc h wa r r a n t w as bas ed on fal se st atem ents by the police off icer

. Fran ks v. De la wa re , 438 U. S. 154( 1978)

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Following the arrest, Officers Roussell and Knapp questioned Anderson, who said that he knew a black male named “Omar” who was selling drugs in Apartment T w o . Anderson informed the officers that he wanted to work as a confidential informant and buy drugs from “Omar.” Officers Roussell and Knapp took Anderson to the sheriff’s department substation for booking. After the booking, Officer Hall searched Anderson for contraband and then drove him from the station back to the apartment complex in an unmarked car. With Officer Huber still watchin g the side door of Apartment Two, Anderson went to the side door and asked Almond Richardson, whom Anderson knew as “Omar,” for forty dollars worth of crack coca i n e . At that point, Anderson entered the apartment, and the officers did not s e e any

m o r e of Anderson’s interaction with Richardson. After Anderson left th e apartment, he immediately returned to Officer Hall’ s truck an d told Officer Hall that he bought f

o rty d o l l ars worth of crack cocaine from Richardson. After another s e arch of Anderson’s person, Officer Hall recovered almost a gram of crack cocaine from Anderson. The next day, on March 2, Officer Huber filed a warrant affidavit, seeking

a search warrant for Richar d s o n’s apartment and vehicle (“March 2 warrant”

or the “March 2, 2006 warrant”); the warrant was primarily supported by the controlled buy. The affidavit for the search warrant stated that a confidential informant contacted Huber and that the confidential informant volunteered to participate in a controlled buy. The affidavit further indicated that the officers had constant visual surveillance o f th e outside of Apartment Two before and

a f t er the buy. A state court magistrate granted the sheriff’s department the search warrant on the basis of the facts c o n t a i n ed in Officer Huber’s warrant affidavit. The sheri f

f’s department executed the warrant on that same day. After

a search of Ri chardson’s apartment, the police found crack cocaine, a loaded

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rifle, marijuana, and marijuana plants. The police f o u n d m o re marijuana in Richardson’s car. After finding Richardson’s collec t i o n o f various and sundry drugs, the officers read Ric hardson his Miranda rights; Richardson stated that he understood his rights and signed a form to such effect. Richardson told the police that he sold coc a i n e and marijuana and that the marijuana plants belonged to him. Richardson was then arrested. On February 15, 2007, a federal grand jury returned a four

- c o unt indictment charging Richardson with crimes related to the March 2, 2006 warrant, including: distrib u t i o n o f cocaine base (Count 1), being a felon in 2
p o s session of a firearm (Count 2), possession with the intent to dist rib u t e 3 marijuana (Count 3), and possession of marijuana plants (Count 4). 4 5 In May 2007, more than a year after Richardso n ’ s p revious arrest and when he was out on bail, Richardson began selling drugs from his girlfriend’s
apart m e nt in the St. Jeanne apartment complex. A confidential informant (“CI”), who lived in the apartment complex and was tired of the seedy

ch ar act er s th at Rich ar d s on’ s drug dealing attracted to the apartment, contacte d the East Baton Rouge Sheriff’s Department. The CI informed the department that Richardson was selling drugs from the apartment as well as his business, Just 4 U Fashion. The CI further volunteered to participate in a controlled buy from Richardson.

D ist ribut ing c ocai ne bas e vi olat es21 U. S. C. § 8 41(a)( 1). 2
Fel onsp os se ss ing f

irea rm s violat e 1 8 U .S .C. § 922( g)( 1). 3
Pos se ss ion wi th the inte nt to dis tributem arijuan a vio late s 21 U .S .C. § 841( a)( 1). 4
G row ing m arijuan a p lantsvio late s 21 U .S .C. § 841( a)( 1). 5
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On May 17, the CI approached Richa rdson’s girlfriend’s apartment and bought fifty ecstasy pills from Richardson with five bills previously marked by the sheriff’s department. Wi th probable cause established by the controlled buy, the sheriff’s department obtained a search warrant for Richardson’s girlfriend’s apartment and an arrest warrant for Richardson. The sheriff’s d e p a rt ment delayed

execu t i o n of the warrants because they did not yet have probable cause to obtain a search warrant for Richardson’s store, Just 4 U Fashion. The next day, May 18, the sheriff’ s d epartment started surveilling Just 4 U Fashion, which was not y e t o p e n t o the general public, as indicated by a sign outside the store that stated “Just For You Coming Soon.” A white Honda Civic soon pulled up to the store. Three people got out o f th e c a r , k nocked on the store’s door, entered the store, and returned to their car three to four minutes later. Shortly afterward, another car pulled up to the store. Ric h a r dson went up to the car and conducted a hand-to-hand deal with the driver. Finally, a four-wheeler ATV pulled up to the store, and the officer saw Richardson conduct another hand-to-hand deal. After this third, apparent drug deal at Just 4 U Fashion, two officers knocked on the business’ door to execute Richardson’s arrest warrant. After the arrest, the officers conducted a search of Richardson, and recovered two of the marked, one-hundred-dollar bills that the CI had used the day before in the controlled buy. During the time that Richardson was being arrested at the store, other officers executed the search warran t at Richardson’s girlfriend’s apartment, which did not yield any contraband. H o w e v e r , based on the information obtained from the CI and the officer’s observation of three apparent drug deals, the sheriff’s department decided to obtain a s e a r c h warrant for Just 4 U Fashion. That night, an officer contacted Judge Marabella, a Louisiana state magistrate judge, via telephone and read a warrant affidavit to the judge (the

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“May 18 warrant” or the “May 1 8 , 2007 warrant”). The warrant affidavit indicated that the surveilling officer had observed seve r al h a nd-to-hand drug transactions, that customers had to knock on the business’ door to enter into the business, and that customers did n o t s t ay longer than five minutes. The warrant affidavit did not mention that Richardson’s store was not yet open to the public and had a “coming soon” sign outside. After the judge approved the warrant affidavit, the sheriff’s department searched Richardson’s store. The officers found 287 ec s t a s y p ills and 11.2 grams of marijuana. On Octob e r 1 7, 2007, a grand jury returned a seven-count superseding indictment against Richards o n . Th e first four counts related to the March 2, 2006, search warrant and were identical to the cha r g e s listed in the first indictment. The additional three counts related t o the May 18, 2007, search warrant and included: distribution of MDMA (commonly referred to as ecstasy) (Count 5), possessi on with the intent to distribute MDMA (Count 6), and

6 7 possession of marijuana (Count 7). 8 As we have earlier n o t e d, Richardson filed several pre-trial motions to suppres s e vi d ence against him, which were addressed in three suppression h e a ri ngs conducted by the district court. In addition to filing motions t o suppress, Richardson effectively requested a Franks hearing to allow him to offer evidence ca ll i n g i n t o question the truth or falsity of the sheriff’s department’s statements in the warrant affidavits.

D ist ribut ion of MD MA violat es21 U. S. C. § 8 41(a)( 1). 6
Richar ds on’s pos se ss ion with the inte nt to dis tribute MD MA violat ed 21 U. S. C. § 7 841( a)( 1) and 18 U .S .C. § 3147( 1).
The indi ctm ent allege d that Richar ds on’s pos se ss ion of mar ijuana violat ed 21 U. S. C. 8 § 8 41(a)( 1) and 18 U .S .C. § 3147( 1). 6 Case: 11-30151 Document: 00511838278 Page: 6 Date Filed: 04/27/2012No. 11-30151

The district court conducted s up p re s s ion hearings on February 5, May 14, and June 3, 2009. The court considered whether there was probable cause supporting the March 2 and May 18 warrants and whether the warrants were otherwise flawed. The district court also stated that it would accept testimony during the suppression hearin g s as part of a Franks hearing or find that a Franks hearing was unnecessary. On August 5, 2009, the district court issued

an order denyin g e a c h of Richardson’s motions to suppress, finding that the sheriff’s department had probable cause to initiate and execute the warrants. The district court further held that “[t]o the extent the defendant is also asking for a Frankshearing, that motion is also denied.” Four days before trial, Richardson’s attorney filed a motion to withdraw

as Richardson’s counsel, because Richardson had invoked his right to act as his

own counsel. On August 10, 2009, one day before trial was supposed to start, the district court held a Faretta hearing. The court denied Richardson’s motion 9 to proceed pro se , holding that “the defendant’s method of insisting on what he believes to be the law and what he believes lawyers shou l d d o o r n o t do will interfere with his right to a fair trial.” Richardson went to trial on August 11, 2009. After a three-day trial, the jury convicted Richardson on the counts relating to being a felon in possession of a firearm (Coun t 2 ) , possession of marijuana plants (Count 4), distribution of MDMA (Count 5), possession with the intent to distribute MDMA (Count 6), and possession of marijuana (Count 7). Richardson was acquitted of two of the charges relating to the March 2, 2006, warrant: distribution of cocaine base

A Fare tta hearing is a hearing cond uct ed to gauge wh ethe r a def enda nt has invok ed 9 h i s o r h er right to se lf- rep res enta tio n kn ow ingly, volunt arily, and com pet ently; the judge cond uct ing the hearing mus t als o wa rn the def enda nt of the danger s and pit fall s o f s e l frep res entatio n. Fare tta v

. Cal if orni a , 422 U. S. 806( 1975)

.

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(Count 1) and possession with the intent to distribute marijuana (Count 3). The district court sentenced Richardson to serve 240 months of imprisonment. Richardson now appeals arguing that the district court erred by denying his motion to suppress the evidence seized in the execution of the March 2, 2006 search warrant, that the district court erred by denying his motion to suppress the evidence seized in the execution of the May 18, 2007, search warrant, that the district court erred by denying his motion for a Franks hearing, and, finally, that his Sixth Amendment rights were violated when the district court denied him the right to act as his own counsel at trial. II. A. We are now p repared to address Richardson’s arguments. His first argument is that the district court erred in denying his motion to suppress the evidence seized in the execution of the March 2, 2006, search warrant. When considering an appeal of a denial of a motion to suppress, we review legal questions de novo and the district court’s factual findings for clear error. United States v. Valadez , 267 F.3d 395, 397 (5th Cir. 2001). Furthermore, we must view the evidence in the light most favorable to the party who prevailed in district court. Id. The Fourth Amendment provides that “no warrants shall issue but upon probable cause, supported by oath or affirmation.” U.S. Const. amend. IV. The exclusionary rule mandates that “evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.” United States v. Calandra , 414 U.S. 338, 347 (1974) (citations omitted). When considering cases where a search is supported by a warrant, we employ a two-step process for reviewing the district court’s denial of a motion to suppress. See United States v. Cher n a , 184 F.3d 403, 407 (5th Cir. 1999). First, we estab l i s h whether the good-faith exception to the

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exclusionary rule applies. Id. ; see also United States v. Leon , 468 U.S. 897, 920- 21 (1984). The good faith exception ap p l i es unless “a reasonably well trained officer would have k n o wn that the search was illegal despite the magistrate’s authorization.” Id

. at 922 n.23. Thus, the good-faith exception does not apply if the warrant affidavit contains a false statement that was made intentionally

or with reckless disregard for the truth. United States v. Cavazos , 288 F.3d 706, 709-10 (5th Cir. 2002). If the good-faith exception applies, the police officer is assumed to have acted reasonably under the circumstances and we must deny

a motion to suppress, regardless of whether the warrant is actually supported by probable cause. United States v. Allen , 625 F.3d 830, 835 (5th Cir. 201 0). If the officer’s conduct i s s u c h that the good-faith exception does not apply, we must progress to the second step and determine whether, without the fals e o r misleading information, the magistrate issuing the warrant had a substantial basis for believing there was probable cause for the search. Cherna , 184 F.3d at 407; Cavazos , 288 F.3d at 710. Here, Richardson argues that he presented incontrovertible evidence indicating that the controlled buy between Anderson a n d Ri chardson, which

was the primary source of probable c a u s e in the March 2 warrant affidavit,

n ev e r h appened. More specifically, Richardson points to the testimony of Officer Roussell, who indicated that he arreste d An d e r son and transported Anderson to parish prison. Roussell testified that the c o n t rolled buy did not

occur and that it could not have happened, because it was not mentioned in his arrest report. O f

f ic er Knapp, the other officer present during Anderson’s arrest, also testified at the suppression hearing that the controlled buy did not occur. 1 0 Richardson furth er argues that there was no evidence linking Richardson to the identity of “Omar,” nor was there any corroborating evidence supporting

At trial, Of

fic er Knapp stat ed thatt he cont roll ed buy didoccurand thathis earl ier 1 0 tes tim ony w as mi st ak en. 9 Case: 11-30151 Document: 00511838278 Page: 9 Date Filed: 04/27/2012No. 11-30151

the controlled buy. The sheriff’s department did not use marked bills or a wire when th e purchase was allegedly made. Thus, Richardson contends that he established that the controlled buy was fabricated in the warrant affidavit and that the district court erred by upholding the search warrant and by allowing the admission of the fruits of the warrant. Although Richar dson has introduced evidence that challenges Officer Huber’s truth f

u lness in the warrant affidavit, both officers Hall and Huber testified at the suppression hearing that the controlled buy did, in fact, occur. Thus, the district court was presented with conflicting evidence concerning the existence of the controlled buy. We are not in the position to reweigh and second-guess the district court’s consideration of valid, contradictory evidence, especially on question s of credibility. Thus, we reject Richardson’s argument th a t th e district court erred by denying his motion to suppress the evidence seized in the execution of the March 2 wa rr a n t o n the grounds of conflicting evidence as to whether the controlled buy actually occurred. B. Richardson also argues that the March 2 warrant should be invalidated

on the grounds that Officer Huber purposefully omitted facts from the warrant affidavit w h ich would call into question Barry Anderson’s reliability as an informant. Richardson also argues tha t Officer Huber lied in the warrant affidavit about how he came into contact with Anderson. Fourth Amendment jurisprudence requires that information fabricated by officers be excluded from a warrant affidavit. See Leon , 468 U.S. at 924. Similarly, the Fourth Amendment forbids officers from omitting information from a search warrant affidavit if (1 ) th e omission was knowingly and intentionally made or was made in reckless disregard for the truth, and (2) the inclusion of the omitted information would render the affidavit insufficient to

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support a finding of probable cause. United States v. Martin , 615 F.2d 318, 328 (5th Cir. 1980). The record indeed shows that Anderson never approa ched Huber and volunteered to perform the controlled buy, as is suggested by Huber in the search warrant affidavit. Furthermore, Huber, in fact, excluded information that might reflect negatively on Anderson’s reliability as an i nf o r m a nt. Nevertheless, the fact remains that even if the warrant affidavit was amended to correct Huber’s misstatements and omissions, the affidavit still establishes probable cause to search Ric h a r d s on’s apartment. The remaining affidavit contains all of the pertinent information relating to Anderson con du c t i n g the controlled buy with Richardson, as set out earlier in this opini o n , including that: officers searched Anderson before the buy and found that he was contraband-free, Huber saw Anderson approach the side door of Apartment Two; officers saw Richardson answer the apartment door; officer s heard Anderson tell Richardson that he wanted to buy forty dollars worth of crack cocaine; and , u p o n h i s return from the buy, Anderson gave Officer Hall the crack cocaine that he had purchased from Richardson. This evidence is sufficient basis for probable cause to search Richardson’s apartment. III. Thus, having rejected Richardson’s arguments for suppressing the evidence seized in the e x e cution of the March 2 warrant, we will proceed to address Richardson’s second argument: that the May 18, 2007, w arr a n t was insufficiently supported by probable cause. Richardson argues that the sheriff’s departme n t made misleading statements and significant omissions in its a f f i d avi t for a search warrant for Just 4 U Fashion. For example, Richardson contends that the warrant affidavit did not mention the fact that Just 4 U Fashion had a “coming soon” sign outside and was not yet o p e n f o r b u siness, which would have clarified the erroneous

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impression that all of the visitors to Richardson’s store had to knock to enter as in a “speak easy” context. In fact, only one transaction involved a door knock, and the other transactions occurred in the business’ parking lot. Nevertheless,

even if the warrant affidavit had stated that the store was not yet open and not all of Richardson’s customers had to knock to enter, it is difficult to see how these facts make a notable difference. There was probable c a u s e t o issue the

w arrant based on the information provided by the CI, including that Rich ar d s o n kept most of his narcotics at his store, the controlled buy involving the CI, that officers found two of the marked bills used during the controlled buy when they executed the arrest warrant on Richardson (which occurred before the officer’s

a pplication for a search warrant of the business), that Richardson wa s u n d e r surveillance based on the sheriff’s department’s suspicion of his drug dealing, and that an officer observed Richardson initiate drug deals. This is sufficient. Richardson also argues that the alleged facts asserted by the officers call into question the affidavit’s credibility. First, Richardso n contends that although the officers stated in the warrant affi d avi t th a t they saw two drug transactions occur in Just 4 U Fashion’s parking lot, the officers did not stop or question the persons involved in the alleged transactio n s. Thus, Richardson argues that the officers’ failure to pursue the people involved in the transactions shows that these hand-to-hand transact i o n s never occurred. Moreover, the warrant affidavit is suspicious because it contains a file stamp date for May 21, 2007, three days after the search occurred. Richardson’s contentions involve factual determinations resolved by the district court. The testimony showed that, before conducting the search, the officers called Judge Marabella from Just 4 U Fashion for judicial authority to conduct th e s e arch. It is not clearly erroneous for the district court, based on the testimony before it, to have concluded that Judge Marabella authorized the search of Richards o n ’ s business on May 18 and the warrant affidavit was

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processed by the clerk’s office on May 21. Nor is it clearly e rr o n e o us for the district court to have concluded that the credibility of the officers is not affected by the fact th a t the officers did not immediately arrest the buyers of the narcotics. In sum, the di s t ri c t court did not err in denying Richardson’s motion to suppress the evidence seized in the execution of the May 18 warrant. 1 1 IV. Finally, we now take up Rich ardson’s fourth claim of error: that the district court erred by violating his Sixth Amendment right to represent hi mself at trial. Because we are addressing a constitutional right, we review de novo the district court’s denial of Richardson’s motion. United States v. Joseph , 333 F.3d 587, 589 (5th Cir

. 2 0 0 3 )

. The district court’s factual findings to support its ruling are reviewed for clear error. United States v. Jones , 421 F.3d 359, 361 (5th Cir. 2005). A competent criminal def e n d a n t has a Sixth Amendment right to represent himself at trial if he knowingly and intelligently waives his right to counsel. Id. at 363; see also 28 U.S.C. § 1654. Furthermor e, “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.” Faretta, 422 U.S. at 817. Before granting a defendant’s

In additio n to the clai ms of err or regar ding the sup pr es sio n of evide nce, Richar ds on 1 1 als o cont ends that the dis tri ct court err ed by not cond uct ing a Fran ks hearing addres sin g the fac tual cir cum st ance s sur round ing the wa rra nt aff idavit s. Fran ks , 438 U. S. at 154. Altho ugh the di stric t cour t did not conduc t a for mal Fran ks hearing, during the s upp res sio n hearings , the dis tri ct judge allow ed Richar ds on to intr oduc e any and all evide nce h e h a d t h a t mi ght pr ove that the off

icer s inclu ded fal se st atem ents and mi sle adin g om iss i o n s in the wa rra nt aff idavit s. Thus, beca use the judge hear d all of Richar ds on’s evide nce and cons ide red the tru th or fal sit y of the off icer s’ st atem ents in the wa rr a n t aff idavit s during the sup pr es sio n hearings, Richar ds on’s right s we re pr ote cte d; the p u r p o s e o f a Fran ks hearing wa s se rved ; and, c ons equent ly, the dis tri ct cour t didno t err . See Uni ted States v. Ma rtin , 615 F.2d318 , 328 (5th Cir. 1980) ; ac cor d Uni ted States v. Na me r , 680 F.2d 1088, 1093 n.10 (5t h Cir. 1982)

.

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request to proceed pro se , however, the court must establish that the defendant “k n o w s what he is doing and his choice is made with eyes open.” Joseph , 333 F.3d at 590 (citations omitted). To d etermine whether a defendant has

effectively waived the right to counsel, the district court should consider various factors, including the defendant’s “age, education, background, experience, and conduct.” Id. The court must ensure that “the w aiver is not the result of coercion or mistreatment, and must be satisfied that the accused understands the nature of the charges, the consequences of the proceedi n g s , and the practicality of waiving the right to counsel.” Id. Even so , th e ri ght of self-representation is limited by the trial court’s responsibility to maintain order and safety and to prevent disruption and delay. See United States v. Long, 597 F.3d 720, 726 (5th Cir. 2010); see also Martinez

v. Court of A

p p eal of Cal. , Fourth Appellate Dist. , 528 U.S. 152, 162 (2000) (“Even at the trial level, therefore, the government’s int e r e s t i n ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.”). A defendant’s request to represent himself at trial may be rejected if it is intended to cause delay or some tactical advantage. Chapman v. United States , 5 5 3 F

. 2 d 886, 894 (5th Cir. 1977). However, we consider a motion for self-representation timely so long as it is filed before the jury has been impaneled. Id. An erroneous denial of th e ri ght of self-representation, if established, requires reversal without further analysis for harmless error. United States v. Majors , 328 F.3d 791, 794 (5th Cir. 200 3). In addressing Richardson’s argu m e nt that he was constitutionally entitled to represent himself, we begin by noting that it is u n c o ntested on appeal that Richardson was competent to r e p r e s ent himself and that Richards o n made a knowing and intelligent waiver of counsel. Furthermore, Richardson repeatedly insisted that he wanted to proceed pro se , indicating the

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voluntariness of his request. The district judge thoroughly fulfilled his duty to

warn Ri c h a r d son, stating: “If you represent yourself, you’re going to be convicted because, you know what? You know a little bit [about the law] that’s causing you to think you know a lot. And thinking you kno w a lot is going to put you in the Bureau of Prisons for a long, long time.” In spite of the district court’s graphic warnings about the practical consequences of acting as his own counsel, Richardson maintained throughout the hearing that he was aware of the consequences and that he wished to represent himself. The Government makes the following arguments supporting the district court’s denial of self-representation: that Richardson’s motion t o represent himself was untimely, that it was made for the pu r p o s e o f d e lay, and that Ri chardson waived his right to represent himself by being disruptive a n d disorderly. The Government’s arguments have no merit. First, it is well established that a motion to represent oneself is timely so long as it is made before the jury is impaneled. Chapman , 553 F.2d at 894-95. Because Rich a r d s o n filed his motion four days before trial, his motion was timely. Second, he expressly stipulated that he was not seeking a continuance

or any other delay of the trial. In short, there is no substantial basis to contend that Richardson’s motion was a diversionary tactic. Finally, there is no indication in th e r e c o r d that the district judge determined that Richardson intended to be physically disruptive so as to obstruct th e trial. A review of the Faretta hearing transcript makes it quite clear that the judge simply concluded th at having professional counsel was a wiser course of action that would make for a cleaner and fairer trial. The trial 1 2

We rec ognize that the dis tri ct judge expr es se d conc ern that “bas ed on the def enda nt’ s 1 2 act ions

. . . and st atem ents both in the in-c ame ra pr oce edi ng as well as in ope n cour t, as we ll as during the mo tio ns to sup pr es s, that the def enda nt’ s behavio r – and I ’m not talki ng about tryin g to hurt so me one – but his unw illingne ss to acc ept a rulin g
. . . wi ll jeop ardize his right to a fai r tri al. ” We unde rs tand th e d i s t r i ct cour t’s frust rat ion. Pro se def enda nts are oft en 15 Case: 11-30151 Document: 00511838278 Page: 15 Date Filed: 04/27/2012No. 11-30151

judge explained that “the real concern of the Court is injecting extraneous and irrelevant subject matter into the record” and that “the defendant’s method of insisting on what he believes to be the law and what he believes lawyers should do or not do will interfere with his right to a fair trial.” This is not, however, a sufficient basis to refuse a defendant the right to act as his or her own counsel,

no r is it equivalent to finding that a defendant will obstruct justice by being disruptive. Faretta itself appears to address and resolve the instant argument, holding that “technical legal knowledge” is “not relevant” to an assessment of his knowing exercise of the right to defend himself. Faretta , 422 U.S. at 836. In sum, because Richardson knowingly and voluntarily filed the pro se motion and because there was no constitutionally permissible reason to deny Richardson the right to represent himself under Faretta and its progeny, we hold that the district court erred in denying Richardson’s Sixth Amendment right to self-representation and therefore each of his convictions and sentences

are vacated. Richardson is entitled to a new trial on all counts of the indictment for which he was convicted; the acquittals on the two counts remain. V. To review our resolution of this appeal, we hold that the district court did not e rr in denying Richardson’s motions to suppress the March 2 and May 18 search warrants. Moreover, because the district court considered all of the evidence that would have been presented during a Franks hearing, the district

c o u rt did not err by denying Richardson’s motion for a separate heari n g t o

burd ens om e on a tri al judge’ s tim e, res ourc es , and pat ienc e. Ye t, a cour t canno t deny a mo tio n fors elf-r epr es enta tio n f or reas onst hat wo uld be com mo n to mo st untr ained pr o se cri mi nal def enda nts

. Cf. Uni ted States v. Ver nie r , 381 F. App ’x 325, 329 (5 th Cir. 2010) (ho ldi ng that a def enda nt did not have the right to rep res ent him se lf at tri al wh en he “p os ed a ris k of violenc e a nd es cap e, . . . wa s def iant and tro ubles om e, and

. . . boas ted that he wa ntedt o go out in a bloody conf

ront atio n, to dis rup t his tri al, and to mak e new s”); ac cor d Buhl v. Cooks ey , 233 F.3d 783, 797 (3d Cir. 2000)

. Ot herw ise , the right to se lf r e p r e s e n t a tio n wo uld be cons tru ctively abrogat ed. 16 Case: 11-30151 Document: 00511838278 Page: 16 Date Filed: 04/27/2012No. 11-30151

resolve his Franks claim. We therefore AFFIRM the district court’s denial of 1 3 Richardson’s motions to suppress and for a Frankshearing. H o w e v e r , the right to self-representation in a criminal trial is a constitutional right und e r th e Sixth Amendment. Here, Richardson competently, knowingly, and intelligently invoked th i s ri ght. Because there

was no constitutionally cognizable justification for denying Richardson’s right to self-representation, we VACATE each of his convictions and sentences and REMAND for further proceedings not inconsistent with this opinion.

In the event a new tri al is cond uct ed on rem and, our dis pos itio n in this app eal of all 1 3
mo tio ns, wh ich we re pr es ente d to the dis tri ct cour t bef ore Richar ds on invok ed his right to se lfrep res entatio n, are un aff ecte d b y our vacatin g Richar ds on’s convic tio ns and se nten ces on Sixth Ame ndm ent ground s and wi ll be cont rolling i n any p roc eeding o n r em and. 17 Case: 11-30151 Document: 00511838278 Page: 17 Date Filed: 04/27/2012