United States of America v. Gregory Griswold

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 12-2529
_____________
UNITED STATES OF AMERICA
v.
GREGORY GRISWOLD,
Appellant
_____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 09-cr-00568-001)
District Judge: Honorable Paul S. Diamond
____________
Before: FUENTES, CHAGARES and BARRY, Circuit Judges
____________
SUR PETITION FOR PANEL REHEARING
AND ORDER AMENDING OPINION
_______________________________
The petition for rehearing filed by appellee, having been submitted to the judges
who participated in the decision of this Court, is GRANTED, and the Not Precedential
Opinion and judgment, filed May 2, 2013, are vacated. An amended opinion shall be
issued. The amendment to the opinion follows:
Section II, last paragraph, is hereby amended to now read:
Here, Griswold made a timely request3 to proceed pro se, and we are
3 Although made on the day of trial, the jury had yet to be empanelled. Bankoff,
613 F.3d at 373 (noting a request is untimely if made “after trial has commenced—i.e . . .
. after the jury has been empanelled”).

-- 1 of 2 --

2
satisfied on this record that the Peppers requirements were met. Although
the District Court may have believed that Griswold’s request was made to
obstruct the proceedings and delay trial, 4 it did not conclude that the
request itself was equivocal or that Griswold’s waiver of counsel was not
knowing, voluntary and intelligent or made by a defendant who was not
competent to stand trial. Cf. Buhl v. Cooksey, 233 F.3d 783, 797 (3d Cir.
2000) (“A court may conclude that a defendant who intends nothing more
than disruption and delay is not actually tendering a knowing, voluntary
and intelligent waiver of counsel, and has not unequivocally asserted the
constitutional right to conduct his/her own defense”). The Court’s desire to
prevent trial delay is certainly understandable, as is its frustration at
Griswold’s last minute decision to proceed pro se. Nevertheless, the Court
erred by denying Griswold’s request.
BY THE COURT:
/s/Maryanne Trump Barry
Circuit Judge
Dated: May 22, 2013
4 The District Court stated that under Bankoff “the timing of the request is only one
factor that a Court must consider” and that the Court is “obligated to balance the
prejudice to the Defendant’s legitimate interests against any potential disruption that a
self-representation request would cause.” (J.A. vol. II at 34). This discretionary
balancing only occurs, however, when the right to proceed pro se is “curtailed” by an
untimely request. Bankoff, 613 F.3d at 373. The request here was timely, and thus the
Court should not have reached this balancing inquiry.

-- 2 of 2 --