Justia Federal District Court Opinions

The appellants are five defendants who were convicted of various offenses under the federal narcotics laws. Their appeals raise a plethora of difficult issues for our consideration. We affirm the convictions of all defendants. However, we vacate Menelao Orlando Estevez' sentence and remand his case to the district court for resentencing.

* Background

This case arises out of an extensive cocaine network centered in Milwaukee, Wisconsin. Testimony at trial revealed the following. Evilio Pinto,¹ an unindicted conspirator, was introduced to Rigoberto Moya-Gomez sometime in the spring of 1985. A short time later, Mr. Pinto learned that Mr. Moya-Gomez was transporting two to three kilograms of cocaine twice monthly from Miami, Florida to Milwaukee. Mr. Pinto decided to join Mr. Moya-Gomez in this criminal venture. In late March 1985, Mr. Pinto and Mr. Moya-Gomez traveled to Miami to purchase cocaine from Mr. Moya-Gomez' source. That source turned out to be Menelao Orlando Estevez. Thereafter, Mr. Pinto and Mr. Moya-Gomez became part of a cocaine organization that was headed by Menelao Orlando Estevez and included his father Celestino Orlando Estevez² and his brother Omar Estevez. At the outset, the Milwaukee end of the cocaine enterprise was managed by Mr. Moya-Gomez. In August 1985, however, Mr. Moya-Gomez had a falling out with the Estevez family. As a result, Orlando bought out Mr. Moya-Gomez' cocaine connections and thereafter headed both the Florida and Wisconsin ends of the business.

During the course of the conspiracy, members of the group regularly transported large quantities of cocaine from Miami to Milwaukee. The cocaine would be driven to Milwaukee, usually concealed in the spare tires of various vehicles. Upon its arrival in Milwaukee, the cocaine would be hidden and then distributed from residences and motel rooms obtained by the Estevez family for that purpose. Extensive records of all drug transactions were maintained. Approximately every two weeks, the money made from the sale of cocaine would be driven back to Florida. Lawrence Jackman, a member of the conspiracy, pleaded guilty and testified at trial about these various activities. As is evident in our later discussion of the sufficiency of the evidence claims raised by several of the defendants, Mr. Jackman's testimony--along with that of Evilio Pinto--proved crucial to the government's success in obtaining convictions against the defendants.

Over a nine-month period, state and federal officials conducted an investigation into the Estevez organization. Several of the defendants were placed under surveillance. Searches of discarded garbage at residences associated with the defendants regularly turned up evidence of narcotics trafficking such as plastic bags with cocaine residue, drug records, and narcotics paraphernalia. In addition, investigating officers discovered that various vehicles were registered under false names at addresses under surveillance. In the culmination of their efforts, on June 30, 1986 at approximately 7:40 a.m., federal and state officers and agents executed simultaneous search warrants at a house located at 173 North 63rd Street, Milwaukee and a house located at 8495 Woodvale Drive, Oak Creek, a suburb of Milwaukee. Celestino was arrested at the 63rd Street house. Agents of the Drug Enforcement Agency (DEA) searched the house and seized approximately 750 grams of cocaine from an orange safe in the closet of a bedroom, three handguns, and numerous drug paraphernalia, drug notes and documents. Amado Raphael Leon and Adalberto Herrera were arrested at the Oak Creek residence. DEA agents also searched that house and seized approximately 17 kilograms of cocaine from a gray safe in the master bedroom, three handguns, $18,000 in United States currency, and numerous drug paraphernalia, drug notes and documents. On July 11, 1986, pursuant to a second search warrant, officials discovered an additional 12 kilograms of cocaine hidden in a brown Ford LTD parked in the garage at the Oak Creek residence. The keys to the LTD had been found on Celestino's person at the time of his arrest.

Neither Rigoberto Moya-Gomez nor Orlando Estevez was present at either the 63rd Street house or the Oak Creek house on the morning of the searches. However, they did not escape the authorities for very long. Mr. Moya-Gomez was arrested on August 21, 1986 following a high-speed car chase. Orlando Estevez was arrested on August 27, 1986 during the execution of a search warrant at his residence in Miami. A search of his Miami residence uncovered an arsenal of weapons, a sum of money in excess of $21,000, two address books, numerous documents bearing the names of other codefendants, several documents detailing large cash purchases, a document entitled "Cocaine Handbook--An Essential Reference," and other miscellaneous drug-related items.

Celestino Estevez, Amado Leon, and Adalberto Herrera were named in the original indictment, returned by a federal grand jury on July 8, 1986. Thereafter, on August 26, 1986, the government obtained a superseding indictment that named an additional sixteen defendants, including Rigoberto Moya-Gomez and Orlando Estevez. In count 1 of the superseding indictment, the government charged all of the defendants with conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846.³ In various other counts, the government charged some of the defendants with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).⁴ In addition, the superseding indictment provided for the forfeiture of any property belonging to any of the defendants that was obtained with drug proceeds, including certain items listed therein.⁵ On September 9, 1986, the grand jury returned a second superseding indictment. The second superseding indictment was identical to the superseding indictment except that several assets were added to the forfeiture provision and two counts were added charging Celestino Estevez and Orlando Estevez with operating a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848.⁶

Seven of the defendants named in the indictment⁷ were tried jointly in the Eastern District of Wisconsin, Judge Terence Evans presiding. The trial commenced on November 17, 1986 and ended on December 17, 1986.⁸ Following a month of trial, the jury returned verdicts of guilty as to all defendants on all charges. The jury also returned a special verdict of forfeiture as to those assets specifically described in the forfeiture provision of the indictment.

II

Appeal of Menelao Orlando Estevez, No. 87-1670

Orlando Estevez was convicted of one count of conspiracy to possess cocaine with intent to distribute (count 1), six counts of possession of cocaine with intent to distribute (counts 3, 4, 7, 9, 13, and 14) and one count of conducting a continuing criminal enterprise (count 20). The district court sentenced Orlando to fifty years imprisonment on count 20, twenty years imprisonment on counts 4, 7, 9, and 13 to run concurrent with each other and consecutive to count 20, and fifteen years imprisonment on counts 3 and 14 to run concurrent with each other and concurrent with the sentence imposed on counts 4, 7, 9, and 13. Orlando asserts six reasons why he is entitled to a new trial: (1) the district court violated his sixth amendment right to counsel of choice by issuing a pretrial restraining order pursuant to the criminal forfeiture statute that encompassed attorneys' fees; (2) the district court violated his fifth amendment due process rights by refusing to hold a prompt, adversary, postrestraint evidentiary hearing to determine whether the restraining order was valid; (3) the district court erred by permitting him to proceed pro se without knowingly, intelligently, and voluntarily having waived his sixth amendment right to counsel; (4) the district court violated his speedy trial rights by denying him a continuance; (5) the district court violated his due process rights by denying him access to a law library, and equipment and services necessary for preparing a defense; and (6) the district court violated his due process rights by sentencing him to seventy years in prison. We address each of these contentions seriatim.

The most significant issue raised by these consolidated appeals concerns the criminal forfeiture provision in the indictment. The issues that we must decide are (1) whether the pretrial restraint of a defendant's assets pursuant to the criminal forfeiture statute, 21 U.S.C. Sec. 853, including funds that the defendant would otherwise use to pay attorneys' fees, violates the defendant's sixth amendment right to counsel of choice; and (2) whether the pretrial restraint of a defendant's assets without affording him an immediate postrestraint hearing violates the due process clause of the fifth amendment.

On September 2, 1986, the government sought an ex parte restraining order from the district court pursuant to the forfeiture provision of the indictment⁹ and 21 U.S.C. Sec. 853(e)(1)(A).¹⁰ On September 12, 1986, the district court entered the ex parte restraining order. The order prohibited the defendants¹¹ from "selling, assigning, pledging, distributing, encumbering, or otherwise disposing of, removing from the jurisdiction of [the] court, or wasting, any and all part of their interest, direct or indirect, in the property described in the Forfeiture Provisions of the Second Superseding Indictment...." Orlando R.5B.

Orlando was arraigned in the Eastern District of Wisconsin on September 30, 1986. At that time, attorney William P. Cagney III of Miami, Florida was present. Mr. Cagney advised the district court that he was entering a limited appearance for the purpose of litigating the forfeitability of attorneys' fees prior to committing to the unconditional representation of Orlando. On October 8, 1986, Mr. Cagney filed a motion on behalf of Orlando in which he asked the district court (1) to modify the ex parte restraining order entered on September 12, 1986 to permit Orlando to expend his own funds to retain counsel of his choice; (2) to modify the ex parte restraining order to allow Orlando living expenses for his family; and (3) "to conduct a prompt hearing wherein the government will be immediately required to establish that it is likely to convince a jury beyond a reasonable doubt that ORLANDO ESTEVEZ committed a violation of CCE [continuing criminal enterprise] and that all of his assets were derived therefrom." Orlando R.11 at 1 (emphasis in original). The motion asserted that "[a]bsent a modification of the restraining order, Mr. Estevez will be unable to retain counsel...." Id. at 2. The motion also stated that "Mr. Estevez desires to retain Mr. Cagney and his law firm to defend him" but that "Mr. Cagney and his law firm will not enter unconditional appearances as his counsel in this case unless and until the issues and questions concerning the forfeiture of attorneys fees is [sic] determined by this Court." Id. at 3.

On October 20, 1986, the district court issued an opinion on the attorneys' fees question. The court stated that "[i]nterpreting the forfeiture provisions of the Act to include attorney fees raises serious constitutional questions." United States v. Estevez, 645 F.Supp. 869, 870 (E.D.Wis.1986). The court noted that the statute exempts from forfeiture transfers made to a " 'bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture....' " Id. at 871-72 (quoting 21 U.S.C. Sec. 853(c)). However, the court also noted that "it is understandably difficult for an attorney to qualify under that exception. He is defending a person accused of violations which lead to forfeiture. He can hardly argue that he was without cause to believe the property was subject to forfeiture." Id. at 872. Nevertheless, the court concluded that "because the spirit of the statute allows for exceptions, and because of the constitutional questions the statute raises, it seems reasonable to conclude that Congress intended that legitimate attorney fees be excepted." Id.

Having construed the statute as exempting attorneys' fees from forfeiture, the court then defined what constituted legitimate attorneys' fees:

While I believe that legitimate, which I take to mean reasonable, attorney fees are excepted from the forfeiture provisions, exorbitant fees are not. I believe that the court, to save the statute, must have some control over the size of the fee to be carved out of the forfeiture. In this case, I believe that Mr. Estevez can find an eminently qualified attorney to represent him in this case for $40,000. The defendant may, as his motion asks, "expend his own funds" to pay his counsel, and up to $40,000 paid to his attorney will not be subject to forfeiture. The request for other funds is DENIED and, because the trial here is set for November 17, 1986, no hearing will be held.

Id. (emphasis in original).

On October 27, 1986, Orlando filed a pro se motion in which he argued that the district court's resolution of the fee issue "continue[d] to thwart [him] from retaining counsel of his choice." Orlando R.15 at 1. Orlando asserted that a reasonable fee for Mr. Cagney would be in excess of $125,000. This estimation was based in part on Mr. Cagney's evaluation of the complexities of the case and in part on conversations that Mr. Cagney had with three other criminal defense lawyers, two in Miami and one in Milwaukee. Id. at 2. Orlando asserted that the district court's estimation of what constituted a "reasonable" fee was arbitrary because the court did not explain how it arrived at the $40,000 figure or otherwise announce the standards of reasonableness on which it relied. Orlando contended that the district court should never set the fee for retained counsel. According to Orlando, "[i]t is enough that retained counsel affirm that any monies paid him by his client are paid solely as attorney fees and related necessary costs." Id. at 3. At the very least, Orlando concluded, the district court should "hold a hearing and accept affidavits of experienced criminal trial counsel as to what would be a fair and equitable fee a client should be allowed to pay his counsel prior to the trial of this cause." Id. at 2-3.¹²

Later in the day on October 27, 1986, the district court held a pretrial conference. At this time, the court entertained oral argument by Mr. Cagney on the issues raised in Orlando's motion for reconsideration. In response to Mr. Cagney's arguments, the district court reiterated that Orlando was free to expend his own funds and up to $40,000 paid to an attorney would not be subject to forfeiture. Orlando R.25 at 36 (Tr. of Oct. 27, 1986--Partial Proceedings). The court indicated that it did not think that the issue of a fee in excess of $40,000 was ripe at that time:

What we're dealing here with is a very elusive thing. First of all, I don't know if the defendant has any more money, for one thing. I don't know if the defendant would even be convicted. Let's suppose the defendant decided to give Mr. Cagney $150,000 or something. He may be acquitted. He may be convicted and the government may decide they can't show that the funds were obtained by his being involved in drug related activities. There is a lot of unknowns out here.

Id. However, the court stated that it might consider raising the $40,000 limit at a later point. The court said: "Now, obviously if I became convinced at some time in this case that a sum in excess of [$40,000] was necessary to retain a competent lawyer and what the lawyer did in the case exceeded $40,000, I think I could and I would modify this order." Id. Mr. Cagney nevertheless declined to represent Orlando under the conditions imposed by the district court's October 20, 1986 order as orally amended on October 27, 1986.

a.

As a preliminary matter, we must decide whether we even need to reach the forfeiture issue. The government argues that we do not, for three reasons. First, the government contends that Orlando's reading of the district court's restraining order was overly broad, and that the order froze only those assets specifically listed in the forfeiture provision of the indictment. Second, the government asserts that the restraining order did not prohibit Orlando from paying fees to an attorney of his choice and that Orlando thus was always free to pay Mr. Cagney whatever he wished with his own funds. Third, the government argues that, in any case, Orlando's sixth amendment rights were not violated because the district court in fact exempted $40,000 in attorneys' fees from the restraining order. We reject the government's contentions on all three points.

The government's first argument assumes that the forfeiture provision in the indictment reached only those assets specifically listed therein. In this regard, we note that the indictment states that the property to be forfeited "shall include but not be limited to" the property thereafter listed. Orlando R.4 (emphasis supplied). The government conceded before the district court that this provision is "admittedly ambiguous," but explained that it did not intend that the restraining order reach assets not specifically identified in the forfeiture provision. Orlando R.13 at 2. The government further stated that it assumed that the district court also did not intend to restrain assets other than those specifically described in the forfeiture provision. The district court's only comment in this regard was its statement that "[a]rguably, the order also prohibits the disposal of assets which, if there is a conviction, will be found to have been obtained from violating the law." Estevez, 645 F.Supp. at 869 (emphasis supplied). We need not resolve this ambiguity because, as we shall explain, Orlando's sixth amendment right to counsel of choice was implicated by the forfeiture provision regardless of whether his assets were subject to a pretrial restraining order.

In addition to the above, the government's first and second arguments assume that Orlando could have paid his lawyer with assets not listed in the forfeiture provision of the indictment. In response to Orlando's motion in the district court to exclude attorneys' fees from forfeiture, the government contended that Orlando "ha[d] not shown that no unforfeitable funds [were] available to pay his counsel," Orlando R.13 at 7, and that Orlando also had not shown that he "propose[d] to pay attorney fees from funds generated by the liquidation of assets named in the forfeiture provisions." Id. at 8. The government concluded that, "absent any indication to the contrary, we must assume that the defendant ha[d] access to unrestrained funds not named in the forfeiture provisions, with which he can pay Mr. Cagney." Id.

However, Orlando asserted in his motion to exempt attorneys' fees that the restraining order "froze all of [his] assets," Orlando R. 11 at 5 (emphasis supplied), and that the "restraining order effectuated a total forfeiture of the defendant's assets." Id. at 27. The district court never made a finding on whether Orlando had other assets with which to pay counsel. The district court's only comments on the matter were to note that the government contended that Orlando could pay his lawyer with assets not mentioned in the forfeiture provision and to state in a conclusory manner that, notwithstanding the government's contentions, "it seems clear that a defendant has standing to raise the issues Estevez raises here." Estevez, 645 F.Supp. at 870 (citing United States v. Bassett, 632 F.Supp. 1308 (D.Md.1986)). While the district judge held that Orlando was free to expend his own funds to pay counsel, id. at 872, he also commented that he did not "know if the defendant ha[d] any more money." Orlando R.25 at 36. Thus, the issue of whether Orlando had any of his own funds outside of the items listed in the forfeiture provision never was addressed or decided explicitly. We cannot resolve this factual dispute on appeal.

In any case, even if Orlando had funds outside the restraining order with which to hire Mr. Cagney--indeed, even if there had been no restraining order at all--we cannot say that the forfeiture provision of the indictment did not affect his right to counsel of choice. Under the "relation back" provision of the forfeiture statute, title to a defendant's property ultimately found to be forfeitable is deemed to vest in the government "upon the commission of the act giving rise to forfeiture under this section." 21 U.S.C. Sec. 853(c).¹³ Thus, any property transferred to an attorney prior to trial ultimately may be forfeited if the defendant is convicted. As the Fourth Circuit said in a recent opinion on the subject:

Pre-conviction restraining orders and, indeed, the mere threat of ultimate forfeiture without any such orders operate directly and immediately to inhibit a defendant's ability to retain private counsel for his defense. Counsel inevitably will be reluctant or unwilling to accept private employment knowing that they may not be able to collect or retain agreed-upon fees.

United States v. Harvey, 814 F.2d 905, 921 (4th Cir.1987) (emphasis supplied), rev'd in part on other grounds sub nom., In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637 (4th Cir.1988) (en banc), petition for cert. filed, 56 U.S.L.W. 3739 (U.S. Apr. 11, 1988) (No. 87-1729); see also United States v. Monsanto, 852 F.2d 1400, 1403 (2d Cir.1988) (en banc) (per curiam) (Feinberg, C.J., concurring) ("the 'relation back' provision of 21 U.S.C. Sec. 853(c) has the same effect as a restraining order when applied to attorney's fees, since practical considerations will keep an attorney from accepting fees based upon the contingency of success at the criminal trial"). Assuming arguendo that Orlando had assets other than those subject to the restraining order with which to pay attorneys' fees, the distinct possibility existed that the government would seek forfeiture of those other assets after his conviction. Thus, while the government may have been correct that there was "no current impediment to Mr. Cagney's acceptance of fees for the representation of Mr. Estevez," Orlando R.13 at 4, the threat of forfeiture, as a practical matter, impacts upon the defendant's sixth amendment right to counsel of choice.¹⁴ Of course, the defendant must demonstrate that he desired to hire counsel of choice and that the threat of forfeiture prevented him from doing so. Cf. United States v. Pipito, 861 F.2d 1006, ---- (7th Cir. 1987) (court holds that the defendant's "Sixth Amendment right to effective assistance of counsel argument makes little sense because he was always represented, and most of the time by counsel of his choice"). But we think this showing certainly was made here. The forfeiture provision clearly prevented Orlando from hiring his counsel of choice, Mr. Cagney.

Finally, we address the government's third argument that Orlando cannot complain of a sixth amendment violation because the district court exempted $40,000 to pay attorneys' fees. This contention ignores the basis for Orlando's sixth amendment claim. Orlando argues that his sixth amendment right entails the right to pay an attorney of his choice whatever he wants as long as those fees are a bona fide payment for legal services rendered. Although we ultimately may disagree with Orlando's characterization of his sixth amendment right, we are squarely presented with deciding whether that characterization is the correct one. It is to this task that we now turn.

b.

In 1984, Congress amended the criminal forfeiture provisions of both the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961-1968, and the Continuing Criminal Enterprise (CCE) statute, 18 U.S.C. Sec. 848, under which Orlando was convicted. These amendments sought to address specific problems perceived by the government in utilizing the criminal forfeiture statutes as initially drafted in 1970.¹⁵ "[T]he bill ... is designed to enhance the use of forfeiture, and in particular, the sanction of criminal forfeiture, as a law enforcement tool in combatting two of the most serious crime problems facing the country: racketeering and drug trafficking." S.Rep. No. 225, 98th Cong., 2d Sess. 191, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3374. The Senate Report describes the perceived problems in preamendment criminal forfeiture law:

[A] serious problem in achieving the forfeiture of significant assets in racketeering and drug cases is that the criminal forfeiture provisions of the RICO and CCE statutes fail adequately to address the phenomenon of defendants defeating forfeiture by removing, transferring, or concealing their assets prior to conviction. Unlike civil forfeitures, in which the government's seizure of the asset occurs at or soon after the commencement of the forfeiture action, in criminal forfeitures, the assets generally remain in the custody of the defendant until the time of his conviction for the offense upon which the forfeiture is based. Only after conviction does the government seize the asset. Thus, a person who anticipates that some of his property may be subject to criminal forfeiture has not only an obvious incentive, but also ample opportunity, to transfer his assets or remove them from any possibility of forfeiture.

Id. at 3378. In response to this problem, section 853 of the CCE statute now permits the government to apply to the district court for a restraining order once an indictment is returned in order "to preserve the availability of property" that the government claims is subject to forfeiture. 21 U.S.C. Sec. 853(e)(1). The statute does not expressly exclude attorneys' fees from the property subject to restraint. Our first task, therefore, is to determine whether the statute, properly read, applies to attorneys' fees.

c.

We begin with the wording of the statute. It is clear that the plain language of section 853 makes no exception for attorneys' fees.¹⁶ As the Tenth Circuit explained:

The language of section 853 is clear. Assets subject to forfeiture include "any property" obtained as a result of the crime, "any of the person's property" used to commit the crime, and "any of his interest in" a continuing criminal enterprise. The only limitations on what property can be forfeited relate to the nexus with the illegal activity. How a defendant intends to use property that would otherwise be forfeited is irrelevant. Property is not exempted because a defendant wants to use it to pay an attorney any more than property is exempted because a defendant wants to purchase a house or employ a financial advisor. As the Fourth Circuit said in [United States v.]Harvey, "Property marked for or paid as attorney fees is necessarily included within that defined as subject to forfeiture [in the statute] for the simple reason that those provisions define forfeitable property without regard to its intended or actual use, whether for payment to attorneys or for other uses." 814 F.2d at 914.

United States v. Nichols, 841 F.2d 1485, 1492 (10th Cir.1988).

Given the unambiguous wording of the statute, there is no need to refer to the legislative history. Indiana Port Comm'n v. Bethlehem Steel Corp., 835 F.2d 1207, 1210 (7th Cir.1987); Kelly v. Wauconda Park Dist., 801 F.2d 269, 270 (7th Cir.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). Nevertheless, an examination of the relevant history of the statute's legislative gestation produces nothing to undermine our conclusion with respect to the plain meaning. Indeed, it supports the wording of the statute. The House Report specifically notes that the treatment of attorneys' fees under the forfeiture statute is to be left to the courts. See H.R.Rep. No. 845, 98th Cong., 2d Sess., pt. 1, at 19 n. 1 (1984).¹⁷ The Senate Report states broadly that the purpose of criminal forfeiture is to "strip these offenders [racketeers and drug dealers] and organizations of their economic power." S.Rep. No. 225, supra, at 3374. In determining that the statute does not reach legitimate attorneys' fees, some courts have focused on other language in the Senate Report expressing concern with sham or fraudulent transactions that defeat forfeiture.¹⁸ See United States v. Ianniello, 644 F.Supp. 452, 455-56 (S.D.N.Y.1985); United States v. Rogers, 602 F.Supp. 1332, 1347 (D.Colo.1985). We do not think the Senate Report can be read so narrowly. Certainly, Congress' manifest concern with sham transactions does not indicate that its focus was narrowed exclusively to these abuses--especially when the language of the statute itself protects only the bona fide purchaser who purchases "reasonably without cause to believe that the property was subject to forfeiture...." 21 U.S.C. Sec. 853(n)(6). See Nichols, 841 F.2d at 1494. Accordingly, we conclude that the statute as written applies to attorneys' fees.¹⁹

d.

We turn therefore to the argument that the application of the statute to attorneys' fees violated Orlando's sixth amendment right to counsel by depriving him of his counsel of choice. It is not in dispute that a criminal defendant has a qualified right to retain counsel of his own choosing to conduct his defense in a criminal case. See In the Matter of Klein, 776 F.2d 628, 633 (7th Cir.1985); Ford v. Israel, 701 F.2d 689, 692 (7th Cir.), cert. denied, 464 U.S. 832, 104 S.Ct. 114, 78 L.Ed.2d 114 (1983). More than fifty years ago, the Supreme Court stated that "[i]t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); see also Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448 (1958); Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). However, the sixth amendment right is not solely, or even primarily, concerned with ensuring that a criminal defendant be provided with his counsel of choice. As the Supreme Court recently explained:

The Sixth Amendment to the Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." In United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981), we observed that this right was designed to assure fairness in the adversary criminal process. Realizing that an unaided layman may have little skill in arguing the law or in coping with an intricate procedural system, Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932); United States v. Ash, 413 U.S. 300, 307, 93 S.Ct. 2568, 2572-73, 37 L.Ed.2d 619 (1973), we have held that the Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). We have further recognized that the purpose of providing assistance of counsel "is simply to ensure that criminal defendants receive a fair trial," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), and that in evaluating Sixth Amendment claims, "the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such." United States v. Cronic, 466 U.S. 648, 657, n. 21, 104 S.Ct. 2039, 2046 n. 21, 80 L.Ed.2d 657 (1984). 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. See Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617-1618, 75 L.Ed.2d 610 (1983); Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Wheat v. United States, --- U.S. ----, 108 S.Ct. 1692, 1696-97, 100 L.Ed.2d 140 (1988) (emphasis supplied). Thus, while all criminal defendants are entitled to some counsel, the circumstances under which a defendant is entitled to counsel of choice has been limited by other considerations, some under governmental control, some not. As the Fourth Circuit noted:

Purely private predicaments may leave a defendant without the counsel of his choice. Any attorney may decline to accept a case despite the fact that he was chosen by a defendant. This decision may be made for the simple financial reason that the attorney does not expect the defendant to be able to pay. The possibility also exists that a creditor might obtain liens against a criminal defendant's property, preventing the defendant from hiring a lawyer. Rules imposed by the government may likewise prevent the hiring of chosen counsel. Rules requiring appointment of local counsel may have this effect. See Ford v. Israel, 701 F.2d 689, 692-93 (7th Cir.1983). Court-imposed scheduling may also prevent participation by chosen counsel. See [United States v.] Inman, 483 F.2d at 740 [4th Cir.1973].

In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637, 645 (4th Cir.1988) (en banc), petition for cert. filed, 56 U.S.L.W. 3739 (U.S. Apr. 11, 1988) (No. 87-1729).

Forfeiture, or a restraining order freezing assets to ensure their availability for forfeiture, is another factor that can qualify the right to retain counsel of choice. A person cannot retain an attorney whose fee he cannot pay with his own assets. In the forfeiture situation, the assets in question are not the defendant's. As the Fourth Circuit so aptly stated:

The very point of the inclusion of forfeiture in an indictment is the government's assertion that the assets possessed by a defendant are not legally his own, but the fruits of crime in which the law recognizes no ownership rights of the defendant. Forfeiture is not an attempt to punish those with legal assets by denying them an attorney; it is an assertion that the defendant does not have the legal assets that entitle him to a right to counsel of choice in the first place.

Id. at 644. The Fourth Circuit further explained:

The most relevant analogy ... is to the example of bank robbers' loot. Suppose a bank is robbed and $100,000 taken. A defendant is arrested in possession of $100,000 and nothing more. The defendant protests his innocence and claims, without the slightest proof, that the $100,000 was in fact a gift from a friend. Surely no one will contend that the $100,000 must be made available to pay the defendant's lawyer, and not be kept available for return to the bank in the event the defendant is found guilty.

Id. at 645.

The imposition of a pretrial restraining order freezing the assets of the defendant that the government believes are subject to forfeiture may well have the practical effect of rendering the defendant indigent. However, this possibility does not, when it occurs, constitute a denial of the defendant's absolute sixth amendment right to counsel. While a defendant whose entire assets are subject to a restraining order will not be able to retain counsel of choice, he has the right to have counsel appointed. See United States v. Ray, 731 F.2d 1361,1366 (9th Cir.1984); United States v. Badalamenti, 614 F.Supp. 194, 197 (S.D.N.Y.1985). Appointed counsel must, of course, be competent in the constitutional sense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Although we expect that, in making such appointments district courts will make every effort to appoint counsel experienced in complex criminal litigation, it must be acknowledged that appointed counsel may not always be able to offer the defendant the depth of experience or the range of investigative services that counsel of choice may have been able to provide. However, this contingency does not render infirm the forfeiture statute. Lack of economic resources often requires individuals to settle for a mode of professional service other than the one they would retain if expense were no object. One cannot spend money one does not have and, by virtue of the forfeiture provision and the restraining order, the funds in question are not the defendant's to spend.

We turn to Orlando's second contention that the district court's issuance of a restraining order without holding an immediate postrestraint hearing violated his fifth amendment right to due process. The fifth amendment provides that a person may not be deprived of his life, liberty, or property without due process of law. Thus, we must decide first whether Orlando suffered a deprivation of life, liberty, or property, and second whether that deprivation occurred without due process of law.

a.

We think it is clear that Orlando suffered a deprivation of property in the constitutional sense. Although the government's title is not established definitively until the entry of a judgment of conviction, title shifts, through the operation of the relation back provision,²⁰ at the time of the commission of the crime. The restraining order thus operates to remove the assets from the control of the defendant on the claim of the government that it has a higher right to those assets. While the restraining order does not divest definitively the ownership rights of the defendant, it certainly does remove those assets from his immediate control and therefore divest him of a significant property interest. Accordingly, we must decide whether the method of removal is consonant with the requirements of the due process clause.

b.

Due process requires that a person not be deprived of his property without notice and opportunity for a hearing. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). To determine what process is due in a particular setting, we must consider three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural prerequisites would entail. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-43, 105 S.Ct. 1487, 1493-94, 84 L.Ed.2d 494 (1985).

We turn first to the private interest that is affected in this case. The interest at stake here is Orlando's interest in retaining counsel of choice. As we have noted already, this right is hardly an absolute one. On the other hand, the right also can be very significant. Staging a defense against a complex criminal charge is not an easy, nor an inexpensive, matter. It requires counsel skilled in marshalling complicated facts as well as learned in legal principles. It often involves dealing not only with the government but with many codefendants whose interests are not compatible and oftentimes overtly adverse. It also often involves significant investigative resources. As the Fourth Circuit noted:

Post-indictment restraining orders of the kind authorized by the Act and as actually entered in Harvey's case obviously may work a tremendous hardship on accused persons. Stripped of all or major portions of his financial resources, an accused (unless in detention) may be unable pending and throughout trial to provide for the basic necessities of life and whether or not in detention, to provide for the preparation of his legal defense.

Harvey, 814 F.2d at 928.

In assessing the nature of the private interest at stake, another factor must be recognized. For some purposes, the freeze imposed by the restraining order may in fact be characterized as "temporary." For instance, pending the outcome of trial, the existence of the freeze will require the defendant to postpone the use of the assets subject to the freeze. On the other hand, with respect to attorneys' fees, the freeze operates as a permanent deprivation. The defendant needs the attorney now if the attorney is to do him any good. It may be that the defendant retains some use of the funds inasmuch as he is able to secure other credit on the contingency that the assets subject to the freeze will later be available because of a favorable verdict. Assuming arguendo that such a contingency is a realistic one,²¹ it only partially assuages the immediate impact of the freeze on the defendant's ability to retain private counsel. Even if it is conceded that the freeze does not eliminate completely the use of the funds for the purpose of retaining counsel, it certainly diminishes, to a wholly different degree of certitude, the utility of the assets.

We next examine the second of the Mathews factors: the risk of an erroneous deprivation of the private interest through the procedures used and the probable value, if any, of additional procedural safeguards. The return of an indictment by the grand jury is, no doubt, adequate notification to the defendant of the pending forfeiture action as part of the criminal proceeding against him. However, due process requires that the party who may be deprived of a property right not only be informed of that possibility but also have an adequate opportunity to respond. For the opportunity to be adequate, it must be afforded "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); see also Mathews, 424 U.S. at 333, 96 S.Ct. at 902; Fuentes, 407 U.S. at 80, 92 S.Ct. at 1994; Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970). In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), the Supreme Court held that the in rem seizure of a yacht carrying illegal narcotics without prior notice and a hearing did not violate procedural due process. However, the forfeiture statute at issue in the case provided for an immediate, postseizure hearing. Id. at 665-66 and n. 1, 94 S.Ct. at 2084 and n. 1. The Court held that, under those circumstances, the case presented an " 'extraordinary' situation in which postponement of notice and hearing until after seizure did not deny due process." Id. at 680, 94 S.Ct. at 2090 (footnote omitted).

The statute at issue here does not provide for a post-restraint hearing. Indeed, when the pertinent provision, 21 U.S.C. Sec. 853(e)(1)(A), is contrasted with the section governing preindictment freeze orders, 21 U.S.C. Sec. 853(e)(1)(B), it is clear that Congress did not intend that such a hearing be held.²² What is, we submit, already clear in the text of the statute is reinforced by the legislative history. The Senate Report notes that:

Paragraph (1)(A) provides that a restraining order may issue "upon the filing of an indictment or information ... and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section." Thus, the probable cause established in the indictment or information is, in itself, to be a sufficient basis for issuance of a restraining order. While the court may consider factors bearing on the reasonableness of the order sought, it is not to "look behind" the indictment or require the government to produce additional evidence regarding the merits of the case as a prerequisite to issuing a post-indictment restraining order. Since a warrant for the arrest of the defendant may issue upon the filing of an indictment or information, and so the indictment or information is sufficient to support a restraint on the defendant's liberty, it is clear that the same basis is sufficient to support a restraint on the defendant's ability to transfer or remove property alleged to be subject to criminal forfeiture in the indictment.

In contrast to the pre-indictment restraining order authority set out in paragraph (1)(B), the post-indictment restraining order provision does not require prior notice and opportunity for a hearing. The indictment or information itself gives notice of the government's intent to seek forfeiture of the property. Moreover, the necessity of quickly obtaining a restraining order after indictment in the criminal forfeiture context presents exigencies not present when restraining orders are sought in the ordinary civil context. This provision does not exclude, however, the authority to hold a hearing subsequent to the initial entry of the order and the court may at that time modify the order or vacate an order that was clearly improper (e.g., where information presented at the hearing shows that the property restrained was not among the property named in the indictment). However, it is stressed that at such a hearing the court is not to entertain challenges to the validity of the indictment. For the purposes of issuing a restraining order, the probable cause established in the indictment or information is to be determinative of any issue regarding the merits of the government's case on which the forfeiture is to be based.

S.Rep. No. 225, supra, at 3385-86 (emphasis supplied); see also id. at 3396. Whatever may be the precise limits on the authority of the district judge at a hearing pursuant to 21 U.S.C. Sec. 853(e)(1)(A), it is clear that the court may not inquire as to the validity of the indictment and must accept that "the probable cause established in the indictment or information is ... determinative of any issue regarding the merits of the government's case on which the forfeiture is to be based." Id. at 3386. It is therefore not open to the defendant to attempt to persuade the court that the government's claim to the property is any less strong than suggested by the government in the indictment which it procured on an ex parte basis. While a different legislative intent demonstrating more flexibility on the part of Congress might make our task easier, we cannot change, as Judge Miner points out in Monsanto, 852 F.2d at 1411-12, what is so clearly articulated both in the statute and the legislative history.

While the statute does not provide for a postdeprivation hearing, it has been argued that the subsequent criminal trial is an adequate opportunity for the defendant to contest the validity of the restraining order. The Supreme Court's decision in United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), seems to lend some support for this proposition. There, the Court held that the government's eighteen-month delay between the seizure of currency pursuant to the Bank Secrecy Act of 1970 and the filing of a civil forfeiture action did not violate the claimant's procedural due process rights. However, in reaching this result, the Court stressed that there was no evidence that the claimant desired early commencement of the civil forfeiture proceeding and that she had never alleged or shown that the delay prejudiced her ability to defend against the forfeiture. Id. at 569-70, 103 S.Ct. at 2014-15. In contrast, a criminal defendant without any funds not subject to the restraining order needs the frozen assets to make his case at the criminal trial. Relief not obtained prior to the commencement of the criminal trial simply will not be helpful in securing the assistance of counsel of choice at the criminal trial.

We also must note that the statutory scheme does present a great opportunity for abuse by the prosecutorial arm of the government. It permits the government, on the basis of an ex parte application to a grand jury--not a judicial officer--to affect significantly the ability of the defendant to participate in the adversary process of the criminal trial. We, of course, do not presume that those charged with the high responsibility of representing the government of the United States in a criminal proceeding would indulge in such a perversion of the criminal process. However, the constitutional validity of a statutory scheme hardly can turn on such an expectation. The adversary process is the basic framework of the American criminal justice system. It ensures the integrity of the truth-finding process and "sharpens the presentation of issues...." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). If one party can skew the process to its advantage, the integrity of the entire process is harmed.

It may be argued, and not without some cogency, that the availability of appointed counsel diminishes, at least to some extent, the impact of any untoward government action that might otherwise be destructive of the adversary process. Yet, the fact remains that if the defendant is deprived of assets he otherwise would have, he is deprived artificially of his right to join issue with the government as he chooses. Without access to his resources, his options are limited.

We now turn to the third consideration mandated by the Supreme Court in Mathews: the government's interest, including the burdens that additional or substitute procedural prerequisites would entail. Here, we need not conjecture with respect to the burden on the government. Congress has spelled it out in no uncertain terms. Discussing the state of the law prior to the enactment of the present statute, the Senate Report noted that:

Although current law does authorize the issuance of restraining orders in the post-indictment period, neither the RICO nor CCE statute articulates any standard for the issuance of these orders. Certain recent court decisions have required the government to meet essentially the same stringent standard that applies to the issuance of temporary restraining orders in the context of civil litigation and have also held the Federal Rules of Evidence to apply to hearings concerning restraining orders in criminal forfeiture cases. In effect, such decisions allow the courts to entertain challenges to the validity of the indictment, and require the government to prove the merits of the underlying criminal case and forfeiture counts and put on its witnesses well in advance of trial an order to obtain an order restraining the defendant's transfer of property alleged to be forfeitable in the indictment. Meeting such requirements can make obtaining a restraining order--the sole means available to the government to assure the availability of assets after conviction--quite difficult. In addition, these requirements may make pursuing a restraining order inadvisable from the prosecutor's point of view because of the potential for damaging premature disclosure of the government's case and trial strategy and for jeopardizing the safety of witnesses and victims in racketeering and narcotics trafficking cases who would be required to testify at the restraining order hearing.

S.Rep. No. 225, supra, at 3378-79 (footnote omitted). These considerations, the product of a careful and deliberate judgment of Congress with respect to the need to deal with a very special and particularly dangerous form of crime, require our careful and respectful acceptance. It is not for us to second-guess the legislative branch with respect to the magnitude of the threat, the ineffectiveness of the earlier means of combating that threat, or the effectiveness of the means set forth in the present enactment. Nevertheless, it is our duty to determine whether the means chosen by the legislature are compatible with the principles of due process enunciated by the Supreme Court of the United States. Having set forth the various considerations under the three-part test enunciated in Mathews applicable to the statutory scheme at issue in this case, we now turn to that question.

c.

In our view, the present statutory scheme--allowing no opportunity to place in question the government's allegation that certain property is subject to forfeiture--violates the due process clause when it results in preventing the defendant from using the restrained funds to secure the services of counsel of choice. Accord United States v. Unit No. 7 and Unit No. 8 of Shop in the Grove Condominium, 853 F.2d 1445 (8th Cir.1988); Harvey, 814 F.2d at 928; United States v. Crozier, 777 F.2d 1376, 1383-84 (9th Cir.1985); cf. United States v. Thier, 801 F.2d 1463, 1468-69 (5th Cir.1986) (court does not consider the constitutionality of section 853(e)(1)(A) because "[t]he statute does not on its face or by necessary implication bar [the] minimum due process protections [of Fed.R.Civ.P. 65]"), modified on other grounds 809 F.2d 249 (5th Cir.1987).²³ But see United States v. Draine, 637 F.Supp. 482, 485-86 (S.D.Ala.1986) (limiting Crozier to its facts); cf. Nichols, 841 F.2d at 1492 n. 4 and 1505 (without deciding due process issue, court nevertheless holds that "a court does not act 'arbitrarily' when it relies ... on a grand jury indictment to issue a restraining order"); United States v. Musson, 802 F.2d 384, 386 (10th Cir.1986) ("the reliance of the district court upon the grand jury indictment in issuing a restraining order which restricted free alienation of the subject property" did not violate due process). The interest of the defendant in utilizing the funds in order to conduct a defense, coupled with the unchecked possibility of prosecutorial abuse, outweigh the articulated need for this extraordinary power by the government.

We stress, however, the very limited degree to which we find the present statutory scheme constitutionally infirm. We deal only with a situation where the defendant presents a bona fide need to utilize assets subject to the restraining order to conduct his defense. If the district court finds that the defendant does not have other assets from which such payments can be made, it then must require the government to demonstrate the basis for its assertion, contained in the indictment, that the assets are subject to forfeiture. However, if the government elects not to disclose sufficient information to justify its retention of all of the assets subject to the freeze order, then the court must order the release of funds in an amount necessary to pay reasonable attorneys' fees for counsel of sufficient skill and experience to handle the particular case. Where such an order is entered, we stress that the district court, exercising its authority pursuant to 21 U.S.C. Sec. 853(e), has a continuing obligation to scrutinize carefully the amount of attorneys' fees in order to avoid lavish fees or improper payments to the attorney. Of course, the district court's determination of what constitutes "reasonable" fees is subject to review on appeal.²⁴ By following this approach, the court's intrusion into the balance mandated by Congress is limited to the degree necessary to accommodate the particular demands of due process required by the request for attorneys' fees.

d.

In this case, the district court did not require the government to establish the sufficiency of the factual basis for its assertion that the funds subject to the restraining order eventually would be forfeited to the United States. Nor did the court determine whether Orlando in fact had funds not subject to forfeiture with which to pay his counsel of choice. However, under the circumstances of this case, these omissions did not deprive Orlando of his due process rights. The district court made available to Orlando what it believed to be a sufficient sum to permit the retention of an attorney of adequate experience and learning to conduct Orlando's defense. Moreover, the court made clear that it would permit additional funds to be released from the order if, at any point, it became obvious that the foregoing estimate was incorrect. We believe that the district court's order appropriately accommodated Orlando's right to adequate funds to secure private counsel and the court's continuing obligation to give effect to the will of Congress when there is no compelling due process concern to the contrary.

In conclusion, we hold that application of the criminal forfeiture statute to include fees paid to an attorney does not violate the qualified sixth amendment right to counsel of choice. However, we also hold that the pretrial, postindictment restraint of a defendant's assets without affording the defendant an immediate, postrestraint, adversary hearing at which the government is required to prove the likelihood that the restrained assets are subject to forfeiture violates the due process clause to the extent that it actually impinges on the defendant's qualified sixth amendment right to counsel of choice. If the government seeks to restrain a defendant's assets without subjecting itself to a due process hearing of the type described above, and if the district court finds that the defendant has no other assets with which to hire his attorney of choice, then the government must consent to the exemption of reasonable attorneys' fees, as determined by the district court in its supervisory role, from the property otherwise subject to forfeiture.

We next consider whether the district court erred in permitting Orlando to proceed pro se. Orlando asserts that he did not knowingly, intelligently, and voluntarily waive his sixth amendment right to counsel. For the reasons that follow, we disagree.

1. Requirement of a Knowing and Intelligent Waiver

a.

It is well established that a defendant has a right to conduct his own defense in a criminal case. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, before permitting a defendant to exercise this right, the district court must ensure that he knowingly and intelligently waived his sixth amendment right to counsel:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464-465 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461] [1938]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 [68 S.Ct. 316, 323, 92 L.Ed. 309] (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. , at 279 [63 S.Ct. 236, 242, 87 L.Ed.268] [1942].

Id. at 835, 95 S.Ct. at 2541 (emphasis supplied). The Supreme Court recently has reemphasized the need for strict safeguards before permitting a defendant to waive his right to counsel. In Patterson v. Illinois, --- U.S. ----, 108 S.Ct. 2389, 2398, 101 L.Ed.2d 261 (1988), the Court addressed the question of what "type of warnings and procedures ... should be required before a waiver of [the Sixth Amendment] right [to counsel] will be recognized." The Court said that its approach to the waiver question was a pragmatic one that asks "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." Id. The Court further explained:

At one end of the spectrum, we have concluded there is no Sixth Amendment right to counsel whatsoever at a postindictment photographic display identification.... At the other extreme, recognizing 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. See Faretta v. California, 422 U.S. 806, 835-836, 95 S.Ct. 2525, 2541-2542, 45 L.Ed.2d 562 (1975); cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323-324, 92 L.Ed. 309 (1948).

Id. (emphasis supplied). Thus, Patterson makes clear that, because of the importance of an attorney at the trial stage, "a more searching or formal inquiry" is required before a waiver can be found. Id.

The Supreme Court has not yet defined precisely the extent of the Faretta inquiry. But cf. Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 324, 92 L.Ed. 309 (1948) (plurality opinion of Black, J.) ("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."). The issue has been addressed, however, by several courts of appeals, including our own. See McMahon v. Fulcomer, 821 F.2d 934, 945 (3d Cir.1987); United States v. McDowell, 814 F.2d 245, 250 (6th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987); United States v. Mitchell, 788 F.2d 1232, 1235-36 (7th Cir.1986); McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir.), cert. denied, 474 U.S. 852, 106 S.Ct. 152, 88 L.Ed.2d 125 (1985); United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982); United States v. Trapnell, 638 F.2d 1016, 1029 (7th Cir.1980). In Mitchell, this court attempted to provide some guidance to the district courts on the question:

The district court could have conducted a much more thorough and extensive inquiry of Mitchell by asking Mitchell his age and degree of education; informing him of the crimes with which he was charged and the maximum possible sentences; determining that Mitchell understood the nature of the charges; ascertaining that he had copies of the Federal Rules of Evidence and the Federal Rules of Criminal Procedure and instructing him to read them and to abide by them, whether read or not; and telling Mitchell that he would be expected to conduct himself in accordance with those rules.

788 F.2d at 1236 n. 3.²⁵ The "trial judge need not give 'a hypothetical lecture on criminal law.' " Id. at 1235 (quoting Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir.1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970)). However, the court should question the defendant in an effort to demonstrate the difficulties he would encounter in acting as his own counsel and specifically should advise the defendant that it would be unwise not to accept the assistance of counsel. See Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541-42. "[W]hether 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, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

Several courts have noted that the district court often is placed in a difficult position when a defendant announces that he wants to represent himself at trial. On the one hand, a defendant has a constitutional right to represent himself, and on the other hand, the court has a constitutional duty to ensure that the defendant only represents himself with full awareness that the exercise of that right is fraught with dangers. No matter what decision the district court ultimately makes--whether to honor the defendant's request or to deny it--the defendant is likely to appeal. See Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987); McDowell, 814 F.2d at 248; United States v. Dujanovic, 486 F.2d 182, 185 (9th Cir.1973). When the district court permits the defendant to proceed pro se, the appeal, like the one presently before this court, inevitably will focus on whether the court adequately informed him of the dangers and disadvantages of self-representation. To insulate itself from this kind of attack, we think it advisable that the district court, as a matter of course, conduct a formal inquiry in which the defendant is informed fully of the risks or proceeding pro se and explicitly advised against self-representation.

Although we stress the need for a thorough and formal inquiry as a matter of prudence and as a means of deterring unfounded claims on appeal, we shall not reverse the district court where the record as a whole demonstrates that the defendant knowingly and intelligently waived his right to counsel. See Mitchell, 788 F.2d at 1235. "The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. The majority of courts that have considered the issue agree that the ultimate question is not what was said or not said to the defendant but rather whether he in fact made a knowing and informed waiver of counsel. See Stano v. Dugger, 846 F.2d 1286, 1288 (11th Cir.1988); Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986); McQueen, 755 F.2d at 1178; United States v. Kimmel, 672 F.2d 720, 722 (9th Cir.1982); United States v. Weninger, 624 F.2d 163, 167 (10th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980); see also McDowell, 814 F.2d at 248-49 (court bases decision on entire record but invokes supervisory power to require district courts to conduct the appropriate inquiry in the future); United States v. Bailey, 675 F.2d 1292, 1301 and n. 13 (D.C.Cir.) (same), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982). But see McMahon, 821 F.2d at 946 (absent an inquiry, court has no way of assessing whether the defendant's decision to represent himself was made knowingly and intelligently); Welty, 674 F.2d at 189 (same).

b.

We now consider the record in this case to determine whether it clearly establishes that Orlando knowingly and intelligently waived his right to counsel. The first factor we consider is whether the district court conducted a formal inquiry. In this case, Orlando's decision to proceed pro se was communicated to the district court at the October 27, 1986 hearing. On November 4, 1986, the district court held another hearing to consider Orlando's decision to proceed pro se. The following colloquy between the district court and Orlando took place:

THE INTERPRETER [for Orlando]: Yes. I remember, Your Honor, that you asked me if I wanted a court appointed attorney and I also remember telling you that if I couldn't get Mr. Cagney I would proceed and represent myself.

THE COURT: Is that what you still want to do here?

THE INTERPRETER: It is my great desire that Mr. Cagney would represent me. But if your decision is no, then I will proceed on my own.

I asked him if he still wants to reinforce the decision to represent himself and he says I really don't know at this point.

There's confusion, he says, in my head. But I am explaining to him that your decision was Mr. Cagney was not amenable to the fees and--

Again, I am reiterating that you have limited Mr. Cagney's fees and for that reason Mr. Cagney cannot represent me and I told you that I would represent myself.

THE COURT: But you do understand that I would appoint a lawyer to represent you if you wanted one in this case. It wouldn't be Mr. Cagney, it would be somebody else. You do know that?

THE INTERPRETER: I would like to have my attorney of my choice, the one I had chosen. I would not like to have an attorney who has never handled a CCE or criminal enterprise without any experience to represent me in this proceeding. You understand that I'm looking at life imprisonment. This is a very serious charge. If I cannot have Mr. Cagney, then on the 17th of November I will be in court to represent myself.

THE COURT: I want you to know, Mr. Estevez, that if I gave you a lawyer here, appointed a lawyer, it would be a good lawyer, an experienced lawyer who might be able to help you in this case and think of things to do that would help you in this case. Do you understand that?

THE INTERPRETER: I understand that you can appoint a lawyer for me. I am very courteous to you and say thank you. But again I'm saying I have my own attorney and I would like to have my own attorney represent me. If he cannot represent me I will represent myself.

Tr. of Nov. 4, 1986 at 5-7. This exchange between the district court and Orlando is unsatisfactory because the thrust of the inquiry was whether Orlando wanted an appointed attorney rather than the disadvantages of self-representation. However, the fact that Orlando was repeatedly advised of his right to have counsel appointed weighs in favor of finding a waiver. See McDowell, 814 F.2d at 248. We also note that, although the district court did not itself inform him of such, Orlando clearly understood the nature and seriousness of the charges against him as demonstrated by his statements that he did not want an attorney who lacked experience in CCE cases, that he was "looking at life imprisonment" and that the CCE charge against him was "very serious."²⁶ Tr. of Nov. 4, 1986 at 6.

A formal inquiry in which Orlando was warned of the dangers and disadvantages of self-representation was conducted by the two Assistant United States Attorneys who were prosecuting the case. The following colloquy took place:

MR. WAGNER [Assistant United States Attorney]: I think Mr. Estevez ought to know that during the course of the trial in front of a jury that there are very technical rules of evidence which limit what the jury can or cannot hear. And that without an attorney who understands the rules of evidence that he will have difficulty in objecting and keeping evidence out from the jury's attention. Do you understand?

THE INTERPRETER [for Orlando]: I am not totally confused. And then, of course, that's, the translation was there. And you know he's not an attorney, so--

MR. KLUMB [Assistant United States Attorney]: You understand I think Mr. Estevez should know that there are two types of evidence that are going to come before the jury. Documents and witness testimony. Sometimes the Court, the Judge will decide that the jury should not be able to view a piece of paper or hear testimony from a certain witness. Sometimes the law does not allow the jury to consider certain things.

Unless you are a lawyer and have been trained in the law it is unlikely that you will be able to object and ask the Judge not to let the jury hear certain things from the witnesses or from the documents. Do you understand that?

THE INTERPRETER: Now I can compare one thing with another. There's some confusion. Those are legal terminology and I am not able to understand them. I would like some further explanation. I want to clearly understand.

MR. KLUMB: Okay. Mr. Estevez, the reason that you don't understand what I'm talking about apparently is because you're not a lawyer.

THE INTERPRETER: For that reason I wanted my own attorney.

MR. KLUMB: And if you accepted an attorney appointed by the Court or hired another attorney for $40,000 or less that attorney could help you understand.

THE INTERPRETER: The only thing I can say I would still like to have my own attorney.

MR. KLUMB: Do you understand that because you do not understand the law very well that you will be at a great disadvantage during the trial.

THE INTERPRETER: That was the Judge's decision, not mine.

MR. KLUMB: I'd like him to answer the question. If he understands that because he is not a lawyer he will be at a great disadvantage during the trial.

THE INTERPRETER: I know I am at a disadvantage. I believe that I will be.

Id. at 8-10.

The fact that the government's attorneys did attempt to warn Orlando of the problems he would encounter in trying to represent himself weighs in favor of finding a waiver. We also are impressed that Orlando explicitly acknowledged that he knew that he would be at a disadvantage. However, we are disturbed by several aspects of the Faretta inquiry in this case. Most notably, we think it was inappropriate for the district court to have delegated its duty to ensure that Orlando knowingly and intelligently waived his right to counsel to the prosecuting attorneys. "It is the solemn duty of a federal judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of this constitutional right at every stage of the proceedings." Von Molte, 332 U.S. at 722, 68 S.Ct. at 322 (emphasis supplied); see also Johnson, 304 U.S. at 464, 58 S.Ct. at 1023 (the trial judge bears the "serious and weighty responsibility ... of determining whether there is an intelligent and competent waiver by the accused"). This duty should not be discharged by enlisting the defendant's adversary to conduct the waiver inquiry. Cf. Von Moltke, 332 U.S. at 725, 68 S.Ct. at 324 ("The Constitution does not contemplate that prisoners shall be dependent upon government agents for legal counsel and aid, however conscientious and able those agents may be."). Thus, although some attempt to inform Orlando of the dangers and disadvantages of self-representation was made in this case, the manner in which it was done weighs against a finding of waiver.²⁷

We also are troubled by the rather perfunctory way the entire November 4, 1986 hearing was handled. Because the district court obviously considered its duty under Faretta less seriously than it ought to have, the scope of the inquiry conducted on November 4, 1986 was less than ideal. The same comment applies to the prosecuting attorneys, who bore a special duty, by virtue of the district court's delegation of authority, to discuss the problems inherent in self-representation more fully with Orlando. We once again remind the district courts not to take lightly the necessity of conducting a formal inquiry. As one court has said, "the fact of central concern to the Supreme Court is awareness by the defendant of 'the dangers and disadvantages' attendant upon [the course of self-representation]. The most certain assurance of that awareness is by a colloquy on the record between judge and defendant." Baily, 675 F.2d at 1300. Thus, the perfunctory nature of the questioning and the limited scope of the inquiry also weigh against finding a waiver in this case.

A second factor to consider in deciding whether there has been a valid waiver is whether other evidence in the record establishes that the defendant in fact understood the dangers and disadvantages of self-representation. In this case, there is such evidence. At the October 27, 1986 hearing, Mr. Cagney represented to the district court that he had "tried to explain to [Orlando] some of the pitfalls to [self-representation]." Orlando R. 25 at 26. Additionally, Orlando regularly made references to his legal disability throughout the proceedings. Orlando's own admissions, coupled with Mr. Cagney's statement that he had warned Orlando of the risks involved, weigh heavily on the side of finding a waiver.

A third factor to consider is the background and experience of the defendant. The district court did not specifically question Orlando about his background. However, the record indicates that Orlando was no stranger to the criminal justice system with a prior felony conviction for fraud as well as "numerous contacts with the law in connection with related offenses." Tr. of Apr. 13, 1987 at 4. This factor weighs in favor of finding a waiver.

A fourth factor, and one that turns out to be very important in this case, is the context of the defendant's decision to proceed pro se. See McQueen, 755 F.2d at 1177 (court should consider the stage of the proceedings and the setting in which the waiver is advanced). On this point, we note the following facts. At the October 27, 1986 hearing, Mr. Cagney told the district court that Orlando would have to proceed pro se in order to preserve his rights on the issue of attorneys' fees. Mr. Cagney said:

What I would ask the Court to do then, if it is then unwilling to revise its order, is to allow Orlando Estevez to preserve his rights until that issue's been reviewed [on appeal] so he's not in the position that he is now going to be forced to take should the Court not grant a stay on its order.

And, that is, that he'll have to proceed pro se with the Court,....

Orlando R. 25 at 20 (emphasis supplied). Mr. Cagney further explained:

[Orlando would] rather have private counsel. He would rather be able to hire me....

But without that, Your Honor, he has decided that he would proceed without a lawyer then.... [H]e sees this as the halls of justice, so to speak, is winding down on him. Is basically if you can't have your own lawyer we're just telling you what's going to happen to you and it's all going to happen in a matter of time any way. And he says I might as well represent myself under those circumstances.

Id. at 26 (emphasis supplied). Orlando expressed his unequivocal agreement with Mr. Cagney on this point, as demonstrated by the following colloquy:

THE COURT: Okay. Now, Mr. Estevez, I'm going to be talking to you. Right now Mr. Cagney is out of this case as far as I'm concerned. He does not represent you and I will not permit him to represent you on the basis of what he has just told me. You understand is [sic] that?

THE INTERPRETER [for Orlando]: Yes.

THE COURT: So you have a choice to make here, because he's not going to represent you on the ground rules I've established. You may have a lawyer that I will appoint to represent you, be a lawyer from the Milwaukee area that I will appoint to represent you and be your lawyer during the trial of this case. If you do not want that, I will ask you to represent yourself in this case and not have a lawyer.

So the choice is yours. Do you want me to appoint a lawyer to represent you or do you want to handle this case without a lawyer?

THE INTERPRETER: I am saying, Your Honor, that if the amount that is not being granted to Mr. Cagney to represent me, that I do not wish to have another attorney in the entire United States to represent me if money is not available to Mr. Cagney to be my personal representative.

THE COURT: Okay. Do you understand that only up to $40,000, if you pay him any more, that is found at a later time to be the result of drug dealing, that money would not be allowed to be kept by the attorney? Do you understand that?

THE INTERPRETER: I understand perfectly well. And I do not understand how a man like Mr. Cagney can carry out a CCE defense with the amount of $40,000, that possibly $40,000 would not be enough to even pay his personal secretary to type any of the motions that he would have before this Court.

THE COURT: Okay. Then, Mr. Estevez, you do not, you want to represent yourself in this case, is that correct?

DEFENDANT MENELAO ESTEVEZ: Yes, Your Honor.