United States v. Culbertson 1

10-1766-cr
United States v. Culbertson
1
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
4
August Term, 2011 5
6
Argued: December 2, 2011 Decided: February 3, 2012 Amended: February 16, 2012 7
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9
Docket No. 10-1766-cr 10
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UNITED STATES OF AMERICA, 15
16
Appellee, 17
18
v. 19
20
TROY CULBERTSON, 21
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Defendant-Appellant. 23
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Before: HALL, LYNCH and LOHIER, Circuit Judges. 27
28
Troy Culbertson pleaded guilty to four counts of a multi-count superseding indictment, 29
including a charge of conspiracy to import 100 grams or more of heroin and five kilograms or 30
more of cocaine, and was sentenced to 120 months’ imprisonment. He now appeals his 31
conviction and sentence. Because there was an inadequate factual basis for Culbertson’s guilty 32
plea with respect to the quantity of drugs for which he was responsible, we remand to the District 33
Court with instructions to vacate the judgment of conviction and for further proceedings not 34
inconsistent with this opinion. 35
36
LAURIE S. HERSHEY , Manhasset, NY, for 37
Defendant-Appellant. 38
39
40

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2
STEPHEN J. M EYER , Emily Berger (on the brief), 1
for Loretta E. Lynch, United States Attorney, 2
Eastern District of New York, for Appellee. 3
4
LOHIER, Circuit Judge: 5
6
Defendant-appellant Troy Culbertson appeals from a judgment of conviction entered in 7
the United States District Court for the Eastern District of New York (Johnson, J.). Culbertson’s 8
conviction arose from his plea of guilty to four counts of an eleven-count superseding 9
indictment, including a count for conspiracy to import 100 grams or more of heroin and five 10
kilograms or more of cocaine, in violation of 21 U.S.C. §§ 963, 960(b)(1)(B)(ii), and 11
960(b)(2)(A), and 18 U.S.C. §§ 3551 et seq. The District Court sentenced him principally to a 12
term of imprisonment of 120 months. Culbertson is currently serving his sentence. 13
On appeal, Culbertson makes two arguments. First, he argues that the District Court 14
erred in accepting his guilty plea without first “determin[ing] that there [was] a factual basis for 15
the plea.” Fed. R. Crim. P. 11(b)(3). In particular, Culbertson contends that the District Court 16
lacked a factual basis to accept his plea to the statutorily prescribed drug quantity of five 17
kilograms or more of cocaine, which triggers a mandatory minimum sentence of ten years’ 18
imprisonment, because he insisted during the plea that he was responsible for only three 19
kilograms of cocaine. Second, Culbertson argues that he was deprived of his Sixth Amendment 20
right to counsel because the District Court denied his motion to substitute counsel and his 21
“standby counsel” during the plea rendered ineffective assistance. 22
As we conclude that Culbertson’s plea failed to satisfy the requirements of Rule 11(b)(3) 23
of the Federal Rules of Criminal Procedure, we do not resolve Culbertson’s second basis for 24
challenging his conviction. We remand with instructions to the District Court to vacate the 25
judgment of conviction. 26

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3
BACKGROUND 1
2
1. Investigation and Arrest 3
4
In 2007, federal agents started investigating an international narcotics trafficking ring 5
that imported heroin and cocaine from Trinidad to cities in the United States. The agents learned 6
of Culbertson’s involvement in that ring on January 9, 2008, when his girlfriend, Patricia 7
Lancaster, arrived at John F. Kennedy International Airport from Trinidad. Customs officials 8
discovered that Lancaster’s suitcase contained just over ten kilograms (10,369 grams) of cocaine 9
and about 909 grams of heroin. Lancaster was arrested and immediately started to cooperate. 10
She explained that Culbertson and another man had offered her $5,000 to smuggle narcotics 11
from Trinidad to New York and had assured her that two other individuals would meet her at the 12
airport to retrieve the drugs. 13
While the agents were questioning Lancaster, Culbertson called the airport’s Customs 14
and Border Protection office inquiring about Lancaster’s whereabouts. Under the agents’ 15
supervision, Lancaster called Culbertson and asked that he pick her up, as no one had met her at 16
the airport. Culbertson responded that he would meet Lancaster at the airport because her 17
luggage contained a “product” that needed to be retrieved. The agents arrested Culbertson as 18
soon as he arrived. 19
2. The Charges 20
21
In March 2008, a grand jury indicted Culbertson on four counts as part of a broader, 22
superseding indictment in which Lancaster and others were also named as defendants. The 23
indictment charged Culbertson with (1) conspiring to import and importing five kilograms or 24
more of cocaine and 100 grams or more of heroin, principally in violation of 21 U.S.C. §§ 963, 25
960(b)(1)(B)(ii), and 960(b)(2)(A) (Counts One and Five); and (2) conspiring and attempting to 26

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1 Culbertson’s first attorney had been relieved because of a conflict of interest, and two
others had been relieved because of disputes with Culbertson.
4
possess with intent to distribute the same amount of cocaine and heroin, principally in violation 1
of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II), and 841(b)(1)(B)(i) (Counts Two and Seven). 2
3. Pre-Plea Proceedings 3
At a pretrial conference on May 15, 2008, Allen Lashley, Culbertson’s fourth appointed 4
attorney of record,1 reported that he and Culbertson had argued over his refusal to file a 5
“frivolous motion” and that Culbertson had fired him. Culbertson complained: “I can’t get my 6
lawyer to do anything for me, and I don’t know the law.” The District Court responded as 7
follows: 8
9
This is what I am going to do. Mr. Lashley, you are the fourth 10
lawyer. I am not going to relieve you. Mr. Culbertson will be trying 11
this case or handling this case himself, pro se. You will be standby 12
counsel to assist him should he need assistance but anything else he 13
will do himself. I am not in the business of providing free lawyers to 14
defendant at his particular whim. 15
16
When Culbertson protested that he did not want to proceed pro se and that he “need[ed] help,” 17
the District Court responded that he was “on [his] own,” but also told him, “If you need help and 18
you want to call Mr. Lashley, you are free to do it.” In the ensuing months, Lashley continued to 19
appear at pretrial conferences as Culbertson’s standby counsel. Culbertson later filed a pro se 20
“Motion for Appointment of Counsel,” in which he asserted that each of his lawyers had been 21
unfit and that he was incapable of representing himself. The District Court denied the motion, 22
referring to its broad discretion to decline to appoint new counsel and noting that an indigent 23
defendant is not entitled to his counsel of choice. 24

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5
The District Court set a trial date of February 9, 2009. During a conference only a few 1
weeks prior to trial, after reviewing Culbertson’s history with prior counsel, the court observed 2
that Culbertson was set to proceed pro se at trial, and sought to clarify Lashley’s role as “standby 3
counsel”: 4
5
I’m here to inform you that when we do go to trial there will 6
be no hybrid representation. You will either represent 7
yourself from beginning to end or, if you want, you still have 8
time, Mr. Lashley will represent you from beginning to end. 9
I’m just putting you on notice so you have to make a decision 10
what you want to do. 11
12
Culbertson responded, “I don’t want to go pro se. I don’t want Mr. Lashley because he’s not 13
doing anything for me,” and “I’m asking the court for a lawyer.” The District Court confirmed 14
that Lashley would serve as standby counsel at trial if Culbertson wished, but that Culbertson 15
was otherwise “on [his] own.” Again, Culbertson protested that he did not want to proceed pro 16
se because he did not “know how to do a trial from beginning to end.” 17
4. The Plea Proceeding 18
On January 21, 2009, the District Court held another conference, which culminated in 19
Culbertson’s guilty plea. At the start of the conference, the court re-emphasized that 20
Culbertson’s options were to proceed pro se or accept Lashley as his attorney. Lashley advised 21
the Court that he had been unsuccessful in “tr[ying] to obtain a plea bargain to Mr. Culbertson’s 22
satisfaction.” Lashley explained, “I advised [Culbertson] he doesn’t have to plead to the plea 23
agreement, he could plead to the indictment, and then at the time of sentence or before sentence 24
we can bring up all of the arguments that he has concerning what type of sentence he should get 25
from the Court.” The District Court briefly adjourned the conference to permit Culbertson, 26
Lashley, and the Government to continue discussing a possible disposition. 27

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6
When the parties returned, Lashley stated that Culbertson wished to plead guilty to all the 1
counts against him in the superseding indictment, although no formal plea agreement had been 2
reached and the Government had not delivered a letter pursuant to United States v. Pimentel, 932 3
F.2d 1029 (2d Cir. 1991). Before proceeding with the plea, the Government confirmed that 4
Culbertson had reserved his rights to an evidentiary hearing regarding drug quantity. 5
During the plea proceeding, the District Court verified that Culbertson was competent, 6
that he had discussed the charges against him with his “legal advisor,” Lashley, and that he 7
understood Lashley’s advice regarding the charges. Culbertson said that he understood that he 8
faced a maximum sentence of life imprisonment and a minimum sentence of ten years. The 9
Government then proffered that its proof against Culbertson consisted principally of an audio 10
recording of Culbertson speaking by phone with Lancaster about importing the drugs in her 11
suitcase, which included over one hundred grams of heroin and over five kilograms of cocaine. 12
Culbertson allocuted that he had recruited Lancaster to bring narcotics into the United States 13
from Trinidad. After the allocution, the District Court asked Culbertson whether he knew that 14
Lancaster was “coming into this country with narcotics,” and Culbertson responded, “Yes. We 15
made an agreement for three kilos of cocaine.” The court then asked the Government if it had 16
any additional questions, which prompted the following colloquy: 17
The Government: The government would proffer, it would be able 18
to prove that the amount that [Lancaster], who the defendant is 19
referring to, what she brought into the country was greater than one 20
hundred grams or more of heroin and greater than five kilos – 21
The Court: Says three kilos of coke. Did you know about the 22
heroin? 23
The Defendant: She made a proffer with the government in which 24
she agreement we made three and when she plead guilty she plead 25
guilty to three. That’s all I know. 26
The Court: It’s part of a conspiracy? 27
The Government: Correct, your Honor. 28
29

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2 The presentence report concluded that Culbertson’s criminal history category was III
and his base offense level was 30, but that he was eligible for a four-level “minimal role”
reduction under § 3B1.2(a) of the United States Sentencing Guidelines. An additional three-
level downward adjustment for acceptance of responsibility yielded an adjusted offense level of
23, for a Sentencing Guidelines range of 57 to 71 months, not accounting for the ten-year
mandatory minimum.
7
After describing the charges against Culbertson without further mentioning drug quantity or 1
advising Culbertson of the elements of each charge, the District Court accepted Culbertson’s plea. 2
5. Post-Plea Proceedings and Sentencing 3
Prior to his plea, Culbertson had requested a Fatico hearing to determine the amount of 4
cocaine for which he was responsible. After the plea, the Government responded that, for 5
sentencing purposes, it would rely solely on the five-kilogram minimum weight necessary to 6
trigger the ten-year mandatory minimum sentence, rendering a Fatico hearing unnecessary. The 7
District Court denied the request for a Fatico hearing as “moot in light of the government’s 8
response.” 9
Before sentencing, Culbertson filed a pro se motion to withdraw his guilty plea, arguing, 10
among other things, that he had entered the plea under pressure and that he had been 11
unconstitutionally denied the assistance of counsel during his plea proceeding. Culbertson also 12
filed a pro se motion requesting that the District Court impose a sentence below the ten-year 13
statutory minimum because he was responsible for only three, not five, kilograms of cocaine. 14
Under the Controlled Substances Act, a plea to three kilograms of cocaine would have triggered 15
only a five-year mandatory minimum sentence. 16
At Culbertson’s sentencing, the District Court accepted the presentence report’s 17
calculation that Culbertson’s Guidelines range was 57 to 71 months. 2 However, having 18

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8
determined that Culbertson was subject to a ten-year mandatory minimum sentence because his 1
offense involved at least five kilograms of cocaine, the court concluded that it was without 2
authority to impose a lesser sentence. Culbertson again insisted that he should be sentenced 3
based on three rather than five kilograms of cocaine because he had pleaded guilty to “three 4
kilos” and had sought a Fatico hearing. The court responded, “Whatever count that you pled to 5
calls for a mandatory minimum.” It then sentenced Culbertson to 120 months’ imprisonment. 6
This appeal followed. 7
DISCUSSION 8
9
1. The Factual Basis for the Guilty Plea 10
Culbertson argues that the District Court violated Federal Rule of Criminal Procedure 11
11(b)(3) by accepting his guilty plea without an adequate factual basis. He contends that he 12
consistently and explicitly challenged the statutorily prescribed drug quantity of five kilograms or 13
more of cocaine and maintained that he was responsible for only three kilograms. 14
a. Standard of Review 15
“We review for . . . abuse of discretion a district court’s decision that a defendant’s factual 16
admissions support conviction on the charge to which he has pleaded guilty.” United States v. 17
Adams, 448 F.3d 492, 498 (2d Cir. 2006). In the wake of Apprendi v. New Jersey, 530 U.S. 466 18
(2000), however, we recognize that “a defendant cannot be convicted on an aggravated [drug] 19
offense unless the statutory drug quantity is proved to a jury or admitted by the defendant.” 20
United States v. Gonzalez, 420 F.3d 111, 124 (2d Cir. 2005). 21
22
23

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9
b. Factual Basis for Drug Quantity 1
2
We have previously held that in order to provide a factual basis for a plea to a drug 3
conspiracy charge under 21 U.S.C. § 841(b)(1)(A), an allocution must establish that the “drug 4
type and quantity were at least reasonably foreseeable to the co-conspirator defendant.” Adams, 5
448 F.3d at 499. In United States v. Gonzalez, for example, we reviewed the adequacy of a plea 6
allocution regarding drug quantity under Rule 11(b)(3) by a defendant who was charged 7
under § 841(b)(1)(A) with conspiring to distribute 50 grams or more of crack cocaine, an amount 8
that carried a twenty-year mandatory minimum sentence. Gonzalez, 420 F.3d at 119, 121, 133. 9
Gonzalez, the defendant, “specifically declined to plead guilty to conspiring to distribute the 10
charged fifty grams or more of crack, explaining . . . that he had never intended to sell the 11
informant a kilogram of real crack,” but had intended to sell only a counterfeit substance. Id. at 12
117. We held “that Gonzalez’s failure to admit – indeed, his explicit challenge to – the statutorily 13
prescribed quantity meant that his plea did not provide the court with an adequate factual basis to 14
enter judgment against him on the charged crime,” and we remanded to the district court with 15
instructions to vacate the judgment of conviction. Id. at 133-34. 16
In United States v. Adams, we considered another Rule 11(b)(3) challenge to a plea by a 17
defendant who allocuted that he had participated in a scheme to “transport eighty-five to ninety 18
pounds of marijuana,” but who was ultimately convicted of conspiring to transport five kilograms 19
or more of cocaine. 448 F.3d at 495. After the allocution, the Government clarified that Adams, 20
the defendant, had stipulated that he would be sentenced based on at least five kilograms of 21
cocaine. Alerted to the inconsistency, the court asked Adams two questions before accepting his 22
plea: (1) “whether he realized that he had agreed to sentencing for a cocaine conspiracy,” and (2) 23

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10
“[a]lthough [he] didn’t know that the load was coke at the time,” whether “[he] did know that it 1
was a drug and it was illegal.” Id. at 496. Adams answered both questions “in the affirmative.” 2
Id. We nevertheless concluded that there was an insufficient factual basis for the plea and that the 3
district court had “failed to elicit an admission that [the defendant] actually knew he was 4
conspiring to distribute at least five kilograms of cocaine,” because Adams had “insisted that he 5
knew of and agreed to only a marijuana conspiracy.” Id. at 499. 6
Our holdings in Gonzalez and Adams extend to Culbertson’s conviction under 7
21 U.S.C. § 963, which, like 21 U.S.C. § 846, requires a showing that the defendant “knew of his 8
co-conspirator’s illicit activities or [that] the activities were reasonably foreseeable by him.” 9
United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003). Like the defendants in those cases, 10
Culbertson “specifically declined” to plead guilty to a drug quantity involving more than five 11
kilograms, Gonzalez, 420 F.3d at 117, and “insisted that he knew of and agreed to” a conspiracy 12
to transport only three kilograms, Adams, 448 F.3d at 499. When asked to describe the conduct 13
that led him to believe he was guilty, Culbertson responded that he had agreed with Lancaster to 14
transport three kilograms of cocaine. Immediately after the Government proffered that Lancaster 15
had in fact transported five kilograms of cocaine, the District Court referred to “three kilos of 16
coke,” a reference that prompted Culbertson to repeat that he was responsible for only three 17
kilograms of cocaine, and to point out that Lancaster had pleaded guilty to only three kilograms. 18
Culbertson’s persistent disavowal of responsibility for any amount in excess of three kilograms of 19
cocaine compels us to conclude that the District Court lacked a factual basis for his plea. 20
The Government contends that its proffer of proof during Culbertson’s plea provided a 21
sufficient factual basis under Rule 11. We disagree. It is true that, to establish the factual basis 22

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3 For example, if during a guilty plea for murder the prosecutor proffers that the
defendant committed the murder with which he is charged, and the defendant and his counsel
flatly deny it but acknowledge some other crime, the result is not to accept the Government’s
proffer, but to reject the murder plea and proceed to trial.
4 We note that “[t]he district court’s obligations under Rule 11[(b)(3)] continue until it
has entered judgment. If it decides there was no factual basis for a guilty plea after accepting it,
the court should vacate the plea and enter a plea of not guilty on behalf of the defendant.”
United States v. Smith, 160 F.3d 117, 121 (2d Cir. 1998).
11
required by Rule 11, the district court may rely on representations of “the defendant, of the 1
attorneys for the government and the defense, [or] of the presentence report when one is 2
available,” and indeed may use “whatever means is appropriate in a specific case.” United 3
States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997) (quoting Fed. R. Crim. P. 11, Advisory 4
Committee Note (1974)). But it is error for the court to find that a factual basis exists when the 5
defendant actively contests a fact constituting an element of the offense in the absence of 6
circumstances warranting the conclusion that the defendant’s protestations are “unworthy of 7
belief.”3 Godwin v. United States, 687 F.2d 585, 590 (2d Cir. 1982); see also Montgomery v. 8
United States, 853 F.2d 83, 85-86 (2d Cir. 1988) (vacating guilty plea where defendant admitted 9
only to conspiring with government agents and informants, but “flatly refused to admit” 10
conspiring with the person named in the indictment); cf. United States v. Navedo, 516 F.2d 293, 11
297-98 (2d Cir. 1975) (upholding lower court’s rejection of a guilty plea where the defendant 12
denied knowledge of, and intent to participate in, a drug conspiracy). Under Rule 11, moreover, 13
the court must “assure itself . . . that the conduct to which the defendant admits is in fact an 14
offense under the statutory provision under which he is pleading guilty.” Maher, 108 F.3d at 15
1524. In doing so, it is “essential . . . that the court determine by some means that the defendant 16
actually understands the nature of the charges.” Id. at 1521. 4
17

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12
Again, far from admitting that he knew or reasonably could have foreseen that Lancaster 1
was transporting over five kilograms of cocaine, or that the Government could prove the 2
foreseeability of this amount, Culbertson affirmatively disputed this essential element of the 3
charged crime. In addition, the District Court’s mistaken reference to “three kilos of coke” after 4
the Government’s proffer served to muddle rather than clarify the quantity to which Culbertson 5
was pleading guilty. 6
Relying on United States v. Andino, 627 F.3d 41 (2d Cir. 2010), the Government urges 7
us to affirm Culbertson’s conviction on the ground that he personally and directly participated 8
in the drug transaction underlying the conspiracy charges against him, and that under these 9
circumstances the Government need not prove knowledge or foreseeability. Id. at 47. 10
Accordingly, the Government submits, Culbertson should be held responsible for the actual 11
amount of cocaine found in Lancaster’s suitcase – an amount that it claims he never disputed. 12
This argument is unpersuasive for two reasons. 13
First, Culbertson appears to have challenged the actual amount of cocaine in Lancaster’s 14
suitcase, as well as his knowledge of that amount. Culbertson never acknowledged that 15
Lancaster was found with five kilograms of cocaine and, indeed, insisted that Lancaster’s plea 16
reflected that she had only three kilograms of cocaine. Second, the record belies the 17
Government’s contention that Culbertson personally and directly participated in the drug 18
transaction. In Andino, we held that the Government need not “prove scienter as to drug type or 19
quantity when a defendant personally and directly participates in a drug transaction underlying 20
a conspiracy charge.” 627 F.3d at 47. We concluded that a defendant who retrieved a package 21
containing drugs addressed to him and transported it to another building had personally and 22

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13
directly participated in that transaction and could be sentenced based on the type and quantity of 1
drugs in the package, even if those were not reasonably foreseeable to him. Id. We were 2
careful to contrast Andino’s case, however, with cases such as Adams, in which the defendant 3
merely “recruited another individual to transport drugs on his behalf.” Id. at 47 n.3 (citing 4
Adams, 448 F.3d at 495). 5
Here, Culbertson recruited Lancaster to transport cocaine from Trinidad, but there is no 6
evidence that he actually handled the cocaine or was involved beyond the recruitment. 7
Moreover, the District Court found that Culbertson was entitled to a significant downward 8
adjustment under the Sentencing Guidelines for playing a “minimal role” in the offense. This 9
adjustment is available only to “a defendant who plays a part in committing the offense that 10
makes him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2(a) 11
(commentary n.3(A)). That finding indicates that Culbertson’s role was far from direct. 12
c. Harmless Error 13
Having determined that the District Court erred in accepting Culbertson’s plea without a 14
sufficient factual basis, we turn to whether the “variance from the requirements of” Rule 11 15
constituted “harmless error” or instead “affect[ed] substantial rights.” Fed. R. Crim. P. 11(h). 16
“[T]he kinds of Rule 11 violations that can properly be considered harmless error are 17
‘fairly limited.’” Maher, 108 F.3d at 1521 (quoting Fed. R. Crim. P. 11, Advisory Committee 18
Note (1983) (Rule 11(h)). In Gonzalez, we described drug quantity as “presumptively 19
significant” because of its “potential impact on any term of incarceration, both in terms of the 20
statutory minimum and the Sentencing Guidelines.” 420 F.3d at 132, 133. We explained that 21
drug quantity is particularly significant when “[t]he record plainly demonstrates that” it is “the 22

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5 During oral argument, the Government noted that it had refrained from filing a prior
felony information against Culbertson prior to his plea but reserved its right to do so in the event
that we vacated the judgment of conviction. If, on remand, the Government properly files a prior
felony information and Culbertson is convicted based on five kilograms or more of cocaine, he
will face a mandatory minimum sentence of twenty years’ imprisonment. Nothing we have said
herein is intended to preclude the District Court from deciding in the first instance whether a
felony information has been properly filed or is otherwise subject to challenge.
14
only fact [the defendant] wished to contest with respect to the charged conspiracy.” Id. at 132- 1
33. After Gonzalez, we made the following pronouncement: 2
A lack of a factual basis for a plea is a substantial defect calling into 3
question the validity of the plea. ‘Such defects are not technical, but 4
are so fundamental as to cast serious doubt on the voluntariness of 5
the plea,’ and require reversal and remand so that the defendant may 6
plead anew or stand trial. 7
Adams, 448 F.3d at 502 (quoting Godwin, 687 F.2d at 591(internal citations omitted)). 8
Culbertson clearly disputed the Government’s proffer regarding drug quantity. As 9
evidenced by his request for a Fatico hearing, he also appears to have understood the impact the 10
issue of drug quantity would have at his sentencing. In view of Culbertson’s explicit challenge 11
to this element of the offense, and its effect on his term of incarceration, we conclude that the 12
District Court’s error in accepting Culbertson’s plea was not harmless. We therefore remand to 13
the District Court with instructions to vacate the judgment of conviction.5
14
15
2. Additional Arguments 16
17
Although Culbertson’s conviction must be vacated because of the lack of a factual basis 18
for his plea, in order to avoid problems on remand we also address his argument that the district 19
court erred by requiring him to proceed pro se after disagreements with his fourth court- 20
appointed counsel. 21
22

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15
While the Sixth Amendment guarantees a right to competent court-appointed counsel in 1
criminal cases, “a trial court may require a defendant to proceed to trial with counsel not of 2
defendant’s choosing.” United States v. Oberoi, 547 F.3d 436, 458 (2d Cir. 2008) (internal 3
citation and quotation marks omitted). Particularly where, as here, the court has already 4
replaced counsel more than once, and the case approaches trial, it is reasonable for the court to 5
require an intractable defendant either to proceed with the current appointed lawyer, or to 6
proceed pro se. See, e.g., United States v. Eltayib, 88 F.3d 157, 168-69 (2d Cir. 1996); McKee 7
v. Harris, 649 F.2d 927, 931-32 (2d Cir. 1981). 8
A defendant faced with a choice between retaining his current court-appointed counsel 9
and proceeding pro se is entitled to elect the latter option, because “the Sixth Amendment right 10
to the assistance of counsel implicitly embodies a correlative right to dispense with a lawyer’s 11
help.” Faretta v. California, 422 U.S. 806, 835 (1975) (internal quotation marks and citation 12
omitted). But this is a choice that the defendant himself must make, and he must be given a full 13
and fair opportunity to consider his options before waiving his Sixth Amendment right in a 14
knowing and voluntary manner. The able and experienced District Judge may well have been 15
right to decline to appoint new counsel. In doing so, however, the District Judge failed to inform 16
Culbertson of the consequences of waiving his rights under the Sixth Amendment and 17
proceeding pro se. Although a district court may, “under certain circumstances, require the 18
defendant to select from a limited set of options a course of conduct regarding his 19
representation,” McKee, 649 F.2d at 931, it must “strive for a full and calm discussion with the 20
defendant in order to satisfy itself that he has the requisite capacity to understand and sufficient 21
knowledge to make a rational choice.” United States v. Tracy, 12 F.3d 1186, 1192 (2d Cir. 22

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16
1993) (internal quotation marks and citation omitted); see also Torres v. United States, 140 F.3d 1
392, 401 (2d Cir. 1998) (“[T]he district court should engage the defendant in an on-the-record 2
discussion to ensure that she fully understands the ramifications of her decision.”). 3
Thus, a defendant who, wisely or not, seeks to represent himself “should be made aware 4
of the dangers and disadvantages of self-representation, so that the record will establish that he 5
knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835 6
(internal quotation marks and citation omitted). Without resort to any particular “talismanic 7
procedures,” a district court should establish that “the defendant understood that he had a choice 8
between proceeding pro se [or] with assigned counsel, . . . understood the advantages of having 9
one trained in the law to represent him, and . . . had the capacity to make an intelligent choice.” 10
United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995) (citations and internal quotation marks 11
omitted). 12
Here, notwithstanding Culbertson’s assertions that he was unable to represent himself at 13
trial, the District Court did not apprise him of the consequences of proceeding pro se or assess 14
his capacity to make an informed choice. On remand, if the District Court still finds it 15
appropriate to deny the request for new counsel, Culbertson must be allowed to make his own 16
decision as to whether to proceed pro se or accept his (competent) court-appointed counsel, after 17
a full Faretta hearing. Of course, the District Court retains discretion to appoint new counsel on 18
remand if that is appropriate. 19
CONCLUSION 20
For the reasons stated, we REMAND the case to the District Court with instructions to 21
vacate the judgment of conviction and for further proceedings not inconsistent with this opinion. 22

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