United States of America v.  Harold Owen

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-6891 
HAROLD OWEN,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Richard L. Voorhees, District Judge.
(CR-90-227; CA-97-112-1)
Argued: March 16, 2005
Decided: May 5, 2005
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Williams joined. Judge Gregory wrote an opinion con-
curring in part and dissenting in part.
COUNSEL
ARGUED: Cheryl Johns Sturm, Chadds Ford, Pennsylvania, for
Appellant. Thomas Richard Ascik, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
Defendant-appellant Harold Owen challenges the district court’s
dismissal of his section 2255 motion, which alleged that he was
denied the assistance of counsel at his federal arraignment in violation
of the Sixth Amendment. Because we conclude that Owen validly
waived his right to counsel at the arraignment, and because he suf-
fered no prejudice from his lack of counsel in any event, we affirm
the judgment of the district court.
I.
Owen was indicted for drug offenses in late 1990. He attended his
initial appearance without counsel before a magistrate judge on Janu-
ary 23, 1991. S.J.A. 3. There, he was advised of the charges against
him and of his right to counsel. S.J.A. 3. He alleged that he was finan-
cially unable to employ counsel and requested court-appointed coun-
sel, but he executed a financial affidavit that estimated his net worth
at $146,900 (mostly in real property) with a monthly income of
$2200. 2d S.J.A. 6. The court found him ineligible for court-
appointed counsel, but granted him temporary counsel for his immi-
nent detention hearing. 2d S.J.A. 6-7.
On February 4 and February 14, Owen was mailed notice of a hear-
ing for arraignment and for status of counsel. S.J.A. 3. This hearing
was held on February 21 before the district judge, and Owen appeared
without counsel. J.A. 412-23. The district judge confirmed that Owen
had been instructed that he was financially ineligible for a court-
appointed attorney, and told him that "given the value of your prop-
erty there’s no way the tax payers can be asked to foot the bill for
your defense," to which Owen replied, "I understand and appreciate
that." J.A. 415-17, 419-20. The district judge proceeded to arraign
Owen, who pleaded not guilty and requested a jury trial. J.A. 420.
Subsequently, the magistrate judge held two status-of-counsel hear-
ings on March 15 and March 25, at which Owen claimed that he was
still seeking unsuccessfully to hire counsel and insisted that he should
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be eligible for a court-appointed attorney. 2d S.J.A. 7. At the second
hearing, Owen contended that "his financial condition was not as he
had initially reported." 2d S.J.A. 7. The magistrate judge permitted
him to execute a second financial affidavit, which estimated Owen’s
net worth at $54,200 with a monthly income of $2278.* 2d S.J.A. 7-
8. On that basis, the judge found that Owen was "not financially
unable to employ counsel." 2d S.J.A. 8. The magistrate judge never-
theless appointed counsel for Owen, but he required Owen to reim-
burse the government for the costs. 2d S.J.A. 8. Owen’s counsel was
appointed effective April 9. S.J.A. 4.
At the arraignment on February 21, the district judge had entered
a pre-trial order requiring all pre-trial motions to be filed within fif-
teen days. 2d S.J.A. 18. Prior to appointment of counsel, Owen filed
a pro se motion for discovery on March 8 and a pro se motion for a
speedy trial on March 22. S.J.A. 3-4. The magistrate judge ruled on
the motion for discovery with a standard discovery order on March
25. J.A. 445-57.
Once appointed, Owen’s counsel also filed motions, including a
motion for a continuance on April 26, which the district court granted
on April 29; and a motion to dismiss on April 26, which the district
court denied on April 29. S.J.A. 4. The district judge denied Owen’s
motion to dismiss as untimely in light of the fifteen-day deadline for
motions in the February 21 pre-trial order, but he considered the mer-
its of the motion in full and made his decision not to excuse its
untimeliness in light of his conclusion that it was also legally merit-
less. 2d S.J.A. 19-21.
Represented by counsel, Owen was tried and convicted on multiple
counts on July 23-31. S.J.A. 4-6. His conviction and sentence were
upheld on direct appeal. United States v. Owen, 966 F.2d 1445 (4th
Cir. 1992) (table). In 1997, he filed a section 2255 motion in the dis-
trict court, alleging inter alia that he was unconstitutionally deprived
of counsel at his arraignment. J.A. 72. The district court denied his
motion, holding that Owen waived his right to counsel at arraignment
and that Owen was not prejudiced by lack of counsel in any event.
*A presentence report prepared after Owen’s conviction calculated his
actual net worth at $81,300 and his monthly income at $2278. J.A. 345.
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J.A. 376-80. Owen timely appealed. We granted a certificate of
appealability only on the issue of Owen’s arraignment without coun-
sel.
II.
As an initial matter, the government does not dispute that Owen
was entitled to counsel at his federal arraignment, and so we assume
without deciding that Owen’s federal arraignment was a "critical
stage" of the criminal proceedings against him, such that his Sixth
Amendment right to counsel was applicable. See United States v.
Wade, 388 U.S. 218, 227 (1967) (holding that the Sixth Amendment
right to counsel attaches at "critical stages" of criminal process in
which "potential substantial prejudice to defendant’s rights inheres");
United States v. Davis, 958 F.2d 47, 48 (4th Cir. 1992) (assuming
without deciding that federal arraignment is a critical stage implicat-
ing the right to counsel).
Assuming that the right to counsel attached, then, we address first
the issue of whether Owen waived his right to counsel at his February
21 arraignment hearing. Determination of a waiver of the right to
counsel is a question of law, which we review de novo. United States
v. Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997).
The district court’s determination that Owen waived his right to
counsel at arraignment was correct. We have held that, when a defen-
dant who is advised of his right to counsel has failed to show that he
cannot afford counsel, he impliedly waives his right to counsel by not
procuring such from his own resources in a timely fashion. See United
States v. Kaufman, 452 F.2d 1202, 1202 (4th Cir. 1972) (rejecting the
defendant’s claim that he was impermissibly tried without counsel
when he had not submitted financial affidavits establishing his inabil-
ity to pay and there was "no evidence in the record that Kaufman
lacked sufficient funds to retain an attorney to represent him"); Davis,
958 F.2d at 49 ("Having failed to establish . . . that he was ever enti-
tled to court appointed counsel, Davis cannot complain that he was
arraigned without counsel."). Moreover, the Sixth Amendment guar-
antees to a defendant with financial means only "a fair opportunity to
secure counsel of his own choice" — not an indefinite series of con-
tinuances during which to conduct a leisurely search for counsel on
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his own schedule. Sampley v. Att’y Gen., 786 F.2d 610, 612 (4th Cir.
1986) (emphasis added); see also United States v. Wright, 797 F.2d
171, 174 (4th Cir. 1986) ("A defendant may be required to go to trial
without an attorney when he has had a fair opportunity to obtain
counsel and does not do so.").
Here, Owen was advised of his right to counsel and his ineligibility
for court-appointed counsel at his initial appearance on January 23,
and he was arraigned on February 21. He thus had twenty-nine days
in which to employ counsel prior to his arraignment. Plainly, this con-
stituted a "fair opportunity" to employ counsel. See Sampley, 786
F.2d at 615 (two two-week continuances between withdrawal of
counsel and trial constituted a "fair opportunity" to secure new coun-
sel); see also Davis, 958 F.2d at 47-48 (upholding the defendant’s
arraignment without counsel when only nine days had passed between
the defendant’s initial appearance, where he was instructed of his
right to counsel, and his arraignment without counsel). Moreover,
there were no exceptional circumstances inhibiting Owen’s search for
counsel, cf. Sampley, 786 F.2d at 615 (defendant alleged that the
political nature of his case made it impossible to find willing coun-
sel); on the contrary, the arraignment transcript showed that Owen’s
failure to obtain counsel was due to his decision to contact only a sin-
gle attorney who charged an unreasonably high retainer, despite the
opportunity to contact other attorneys during those twenty-nine days.
See J.A. 415-16.
Owen contends that he was in fact financially unable to secure
counsel for himself, relying on the fact that the magistrate judge even-
tually did provide him with court-appointed counsel. But, in doing so,
the magistrate judge explicitly found that Owen was not financially
unable to employ counsel, and required Owen to reimburse the court
for counsel’s costs. 2d S.J.A. 8. In light of Owen’s affidavits estimat-
ing his net worth at $146,000 and $52,000, and the later pre-sentence
report placing his net worth at $82,000, it is evident that the magis-
trate judge did not clearly err in either of his successive determina-
tions that Owen could afford to employ counsel on his own. And even
if Owen could now show that he was in fact unable to pay for coun-
sel, contrary to his own affidavits executed at the time, he bore the
burden of proving his eligibility for appointed counsel; thus, the dis-
trict court was entitled to rely on his affidavits in its determination of
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his eligibility. See Davis, 958 F.2d at 48-49 ("To qualify for court
appointed counsel, however, the defendant bears the burden of prov-
ing that he lacks financial means to retain counsel. . . . By blocking
legitimate inquiry into his financial condition, a defendant impliedly
waives his right to counsel."). Therefore, Owen effectively waived
any right to counsel at his arraignment, and he cannot now complain
of a constitutional violation.
III.
Even if Owen had not waived his right to counsel at the arraign-
ment, he would not be entitled to relief because his arraignment with-
out counsel was harmless error, as the district court correctly
concluded. We review de novo the district court’s determination that
the lack of counsel did not prejudice Owen. Barnes v. Thompson, 58
F.3d 971, 987 (4th Cir. 1995).
Assuming, again without deciding, that the arraignment is a critical
stage of federal criminal proceedings involving "potential substantial
prejudice to defendant’s rights" in the absence of counsel, we must
decide whether the absence of counsel at such is subject to harmless-
error analysis. We have held that harmless-error analysis applies to
the denial of the Sixth Amendment right to counsel at all stages of the
criminal process, except for those where such denial "affects and con-
taminates" the entire subsequent proceeding: "[o]nly in cases where
the deprivation of the right to counsel affected — and contaminated
— the entire criminal proceeding is reversal automatic." Arnold v.
Evatt, 113 F.3d 1352, 1361 (4th Cir. 1997) (internal quotation marks
omitted) (quoting Satterwhite v. Texas, 486 U.S. 249, 258 (1988));
see also Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) (Rehn-
quist, C.J.) (holding that harmless-error analysis is inapplicable only
to "structural defects in the constitution of the trial mechanism,"
which affect "[t]he entire conduct of trial from beginning to end"). In
particular, with respect to arraignments, the Supreme Court has held
that the denial of counsel at an arraignment required automatic rever-
sal, without any harmless-error analysis, in two situations: when
defenses not pleaded at arraignment were irretrievably lost, Hamilton
v. Alabama, 368 U.S. 52, 53-54 (1961); and when a full admission of
guilt entered at an arraignment without counsel was later used against
the defendant at trial, despite its subsequent withdrawal, White v.
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Maryland, 373 U.S. 59, 60 (1963) (per curiam). As the Supreme
Court has noted with respect to Hamilton and White, the denial of
counsel under such circumstances "cast[s] so much doubt on the fair-
ness of the trial process that, as a matter of law, [it] can never be con-
sidered harmless." Satterwhite, 486 U.S. at 256.
Here, by contrast, Owen’s arraignment without counsel involved
no such "structural defect" or "contamination" of the entire trial pro-
cess. At arraignment, Owen merely entered a plea of not guilty and
asserted his right to a jury trial. Unlike the defendants in Hamilton
and White, he did not irrevocably waive any defenses or make any
irreversible admissions of guilt, nor was he presented with the oppor-
tunity to execute any such irrevocable waiver or irreversible admis-
sion. On the contrary, Owen preserved every right that he possessed
pre-arraignment. He left open the possibility of withdrawing his not-
guilty plea; in fact, at arraignment, the government indicated its will-
ingness to engage in plea negotiations with him. J.A. 420-21. In such
circumstances, where the arraignment involved no necessary or inevi-
table impact on the subsequent criminal proceedings, the denial of
counsel at arraignment was not "structural error" and is subject to
harmless-error analysis.
Our conclusion that Owen’s arraignment without counsel is subject
to harmless-error analysis is abundantly supported by Supreme Court
cases applying harmless-error analysis to the denial of the Sixth
Amendment right to counsel at various "critical stages" of criminal
process. For example, in Coleman v. Alabama, the Supreme Court
held that an Alabama preliminary hearing was a "critical stage" at
which the right to counsel applied, and also held that "[t]he test to be
applied is whether the denial of counsel at the preliminary hearing
was harmless error under Chapman v. California." Coleman v. Ala-
bama, 399 U.S. 1, 11 (1970). Likewise, in United States v. Wade, the
case in which the Supreme Court defined the governing test for deter-
mining whether a proceeding is a "critical stage" at which the right
to counsel applies, the Court remanded for a determination of whether
the error in question was harmless. See Wade, 388 U.S. at 239-40.
And on subsequent occasions, the Court has held that the denial of
counsel at various other "critical stages" implicating the Sixth
Amendment was subject to harmless-error analysis. See, e.g., Satter-
white, 486 U.S. at 258 (admission of psychiatric examinations con-
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ducted in violation of the Sixth Amendment); Moore v. Illinois, 434
U.S. 220, 232 (1977) (denial of counsel at a pre-indictment hearing
involving eyewitness identification); Fulminante, 499 U.S. at 310-11
(admission of a confession elicited in violation of the Sixth Amend-
ment); Milton v. Wainwright, 407 U.S. 371, 372 (1972) (same); see
also Sullivan v. Louisiana, 508 U.S. 275, 282-83 (1993) (Rehnquist,
C.J., concurring) ("We of course have long since rejected the argu-
ment that, as a general matter, the Sixth Amendment prohibits the
application of harmless-error analysis in determining whether consti-
tutional error had a prejudicial impact on the outcome of a case.").
In the same vein, we too have held that the list of "critical stages"
at which the right to counsel attaches, but at which the denial of coun-
sel does not entail automatic reversal, includes unsupervised and
supervised juror visits to the crime scene. See Arnold, 113 F.3d at
1361; Sherman v. Smith, 89 F.3d 1134, 1137 (4th Cir. 1996) (en
banc). As in all of these cases, the error of which Owen complains did
not cast systematic doubt on the subsequent proceedings and did not
"affect and contaminate" the entire trial by placing Owen at any
ineradicable unfair disadvantage. Accordingly, under both Supreme
Court and circuit authority, any error here is subject to review for
harmlessness.
Nevertheless, contrary to this extensive authority, Owen contends
that denial of counsel at any "critical stage" of the trial process
requires automatic reversal. He relies principally on dicta from three
Supreme Court opinions suggesting that the denial of counsel at a
"critical stage" is not subject to harmless-error analysis. See Bell v.
Cone, 535 U.S. 685, 695-96 (2002); Roe v. Flores-Ortega, 528 U.S.
470, 483 (2000); United States v. Cronic, 466 U.S. 648, 659 & n.25
(1984). For example, in Bell v. Cone, the Supreme Court remarked:
A trial would be presumptively unfair, we said, where the
accused is denied the presence of counsel at "a critical
stage," a phrase we used in Hamilton v. Alabama and White
v. Maryland to denote a step of a criminal proceeding, such
as arraignment, that held significant consequences for the
accused.
Bell, 535 U.S. at 695-96; see also Cronic, 466 U.S. at 659 n.25 ("The
Court has uniformly found constitutional error without any showing
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of prejudice when counsel was either totally absent, or prevented
from assisting the accused during a critical stage of the proceeding."
(citing Hamilton and White)). However, these statements do not avail
Owen’s argument, because they rely on the Supreme Court’s earlier
usage of the phrase "critical stage," in cases such as Hamilton and
White, to refer narrowly to those proceedings both at which the Sixth
Amendment right to counsel attaches and at which denial of counsel
necessarily undermines the reliability of the entire criminal proceed-
ing. See, e.g., Hamilton, 368 U.S. at 53 (holding that Alabama
arraignment was a "critical stage" because "[i]t is there that the
defense of insanity [and other pleas and motions] must be pleaded, or
the opportunity is lost"). As indicated above, the Supreme Court has
subsequently used the phrase "critical stage," in cases such as Wade
and Coleman, in a broader sense, to refer to all proceedings at which
the Sixth Amendment right to counsel attaches — including those at
which the denial of such is admittedly subject to harmless-error analy-
sis. Our unchallenged assumption in this case, namely that Owen’s
federal arraignment was a "critical stage" within the meaning of
Wade, thus does not commit us to the conclusion that the denial of
counsel herein requires automatic reversal. Here, the government has
not conceded that harmless-error analysis is inapplicable; on the con-
trary, the government contends that any error at Owen’s arraignment
was evidently harmless. See Br. of Appellee at 11-14. We assume that
the right to counsel applied at Owen’s arraignment because the gov-
ernment does not dispute that assumption. But we do not assume that
his lack of counsel was structural error — i.e., that his arraignment
was a "critical stage" within the narrow meaning of Hamilton and
Cronic — because, under our governing law, the error Owen alleges
can and must be subject to harmless-error analysis. See Satterwhite,
486 U.S. at 256 (holding that only those "Sixth Amendment viola-
tions that pervade the entire proceeding" can "never be considered
harmless" (emphasis added)).
Thus, we must determine whether the denial of counsel at arraign-
ment inflicted any prejudice on Owen. In the context of a section
2255 motion alleging constitutional error, such as Owen’s, the Fourth
Circuit has not decided whether the harmless-beyond-a-reasonable-
doubt standard of Chapman applies, as it would on direct appeal, see
Coleman, 399 U.S. at 11 ("The test to be applied is whether the denial
of counsel at the preliminary hearing was harmless error under Chap-
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man v. California."), or whether the less stringent test of Brecht v.
Abrahamson applies, as it would on review of a section 2254 petition.
See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (requiring a sec-
tion 2254 petitioner alleging constitutional error to show "substantial
and injurious effect or influence in determining the jury’s verdict");
see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)
(adopting the Brecht standard for section 2255 motions); United
States v. Montalvo, 331 F.3d 1052, 1057 (9th Cir. 2003) (same); Peck
v. United States, 106 F.3d 450, 456 (2d Cir. 1997) (same).
We need not decide this issue here, however, because Owen is not
entitled to relief under either standard. Owen’s lack of counsel at his
arraignment was plainly harmless beyond a reasonable doubt. As
noted above, because Owen pleaded not guilty and requested a jury
trial, he did not waive any rights at the arraignment, and he was left
free to enter into subsequent plea negotiations if he so desired. J.A.
420-21. And, once appointed, Owen’s counsel had over three months
to prepare for trial, because the district court granted his motion for
a continuance. S.J.A. 4. Owen’s sole plausible contention of prejudice
is that his counsel’s pre-trial motion to dismiss was denied as
untimely, because the fifteen-day deadline for pre-trial motions
imposed at arraignment had lapsed before counsel was appointed.
S.J.A. 4. However, Owen suffered no prejudice from the untimely fil-
ing of this motion, because the district court fully examined the merits
of the motion and explicitly grounded its decision to deny the motion
on its conclusion that the motion was legally meritless. 2d S.J.A. 19
("In some other context, it might be necessary to relax the 15-day lim-
itation period mandated by the Pretrial Order for a Defendant pro-
ceeding pro se during the 15-day period in question. Where, as here,
Defendant’s motion is unfounded as a matter of law . . . such relax-
ation is ill-advised."). Owen has made no other showing that his coun-
sel’s ability to file motions or present his case was in any way
hampered by his lack of counsel at arraignment. As the government
urges, Owen’s lack of counsel and the subsequent delay before the
appointment of his counsel thus had no discernible influence whatso-
ever on the proceedings. Therefore, the denial of counsel here was
harmless beyond a reasonable doubt, and the district court correctly
denied Owen’s section 2255 motion on this issue.
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CONCLUSION
The judgment of the district court is affirmed.
AFFIRMED
GREGORY, Circuit Judge, concurring in part and dissenting in part:
Harold Owen did not waive his right to counsel either explicitly or
implicitly at his arraignment or at any other point in the proceedings.
He repeatedly told the magistrate judge and the district court judge
that he wanted an attorney, that he was financially unable to afford
an attorney, and he repeatedly declined to sign a waiver of counsel form.1
I dissent from the majority’s conclusion otherwise. However, I agree
that the error was harmless and thus concur in that portion of the
majority’s opinion.
I.
The magistrate judge, based on Owen’s first financial affidavit,
found that Owen could afford his own counsel but appointed Owen
counsel for the purpose of his detention hearing because Owen had
not yet had time to obtain counsel. At Owen’s arraignment, the dis-
trict court judge inquired about Owen’s efforts to obtain counsel.
After Owen explained that he could not afford the fees of the attor-
neys that he had contacted, the district court judge expressed doubt
as to whether Owen needed such expensive counsel. However, the
district court then recognized that Owen had a problem in obtaining
1The Election/Waiver of Counsel form reveals that Owen circled the
options on the form which stated:
I (Want) . . . a lawyer to represent me at my proceedings before
the Magistrate; I (Want) . . . a lawyer to represent me in any pro-
ceedings that may follow in District Court; I (Want) . . . the court
to select and appoint a lawyer to represent me before the Magis-
trate and/or District Court; I am financially . . . (Unable) to hire
a lawyer to represent me before the Magistrate and/or District
Court.
Record on Appeal, Doc. Entry #2.
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counsel because Owen’s assets consisted of property that would have
to be sold before he would have the funds to pay an attorney’s fee up-
front. Yet, rather than postpone the arraignment to allow Owen more
time to sell his property or appoint counsel for Owen to protect his
rights during the arraignment, the district court judge proceeded with
the arraignment with Owen unrepresented by counsel.
After the arraignment, Owen submitted a second financial affidavit
that showed a difference in his net worth from that set out in his first
affidavit. Based on this second affidavit, the magistrate judge con-
cluded that Owen was still financially able to employ counsel. Never-
theless, because of Owen’s inability to obtain counsel and because of
his persistence in seeking court-appointed counsel, the magistrate
judge stated that the court would appoint counsel but require Owen
to pay the Government the cost of the appointed counsel in install-
ment payments.
Based on these facts, the majority opinion concludes that Owen
waived his right to counsel at his arraignment. I disagree.
The Supreme Court has held that under the Sixth Amendment a
criminal defendant must be afforded the right to counsel, including
court-appointed counsel if the defendant is financially unable to retain
an attorney to defend himself. Gideon v. Wainwright, 372 U.S. 335,
341 (1963). This right to the assistance of counsel "is a fundamental
right of criminal defendants; it assures the fairness, and thus the legiti-
macy, of our adversary process." Kimmelman v. Morrison, 477 U.S.
365, 374 (1986). Although a defendant may waive his right to coun-
sel, courts must entertain every reasonable presumption against the
waiver of this fundamental constitutional right. United States v. John-
son, 659 F.2d 415, 417 (4th Cir. 1981). Thus, a waiver is only valid
if it is knowing, intelligent, and voluntary. Johnson v. Zerbst, 304
U.S. 458, 464 (1938).
"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 back-
ground, experience, and conduct of the accused." Id. "[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
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upon the record." Id. at 465. While we have rejected the proposition
that the failure of the trial court to conduct a searching or formal
inquiry into the defendant’s understanding of his situation and his
awareness of the dangers of self-representation is error, we have held
that an "open court exploration of the defendant’s background capa-
bilities and understanding of the dangers and disadvantages of self-
representation," is necessary. United States v. Singleton, 107 F.3d
1091, 1097-98 (4th Cir. 1997).
At Owen’s arraignment, the district court judge failed to conduct
any inquiry into Owen’s background capabilities and understanding
of the dangers and disadvantages of self-representation. The district
court judge simply inquired about Owen’s status in obtaining counsel,
told him that his assets would prevent court-appointed counsel, and
then proceeded with the arraignment. Certainly, no formal or search-
ing inquiry was needed, but some sort of inquiry was necessary before
proceeding with the arraignment with Owen unrepresented.2 Without
this inquiry, the district court judge had no reasonable basis on which
to conclude that Owen was knowingly, intelligently, and voluntarily
waiving his right to counsel.
The majority finds that because Owen had a "fair opportunity" to
obtain counsel, his failure to do so constitutes an implicit waiver of
his right to counsel at arraignment. To begin with, I must reject the
majority’s suggestion that although Owen never expressed his desire
to proceed pro se that he "impliedly" waived his right to counsel. Ante
at 4-5. While I recognize that the right to counsel is not without limi-
tation, I think it is beyond dispute that any waiver of that right must
be based on a knowing and intelligent decision and not "implied."
The majority relies on cases in which we have held that the dilatory
conduct of a defendant negates a defendant’s claim that he lacked a
"fair opportunity" to secure counsel of his choice. See, e.g., United
States v. Davis, 958 F.2d 47 (4th Cir. 1992); United States v. Kauf-
man, 452 F.2d 1202 (4th Cir. 1972). I find these cases inapposite. The
2Given Owen’s continued reiteration of his need for an attorney, it
appears that he was fully aware of the dangers of self-representation. So
aware, in fact, that he repeatedly refused to sign a waiver of his right to
counsel.
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limitation that the majority seeks to place on Owen’s right to counsel
is one that courts impose when a defendant abuses the process and
then complains that he has not had a fair opportunity to secure coun-
sel of his choice. Specifically, we have applied it in cases in which
defendants sought court-appointed counsel but then refused to give
the court the information needed to evaluate a claim of indigency,
such as an affidavit as to financial status. See Davis, 958 F.2d at 48-
49 (defendant refused to answer any meaningful questions concerning
his claim of indigence); Kaufman, 452 F.2d at 1202 (defendant
refused to execute an affidavit of financial status to establish his indi-
gency).
Owen did not abuse the process by refusing to give the court infor-
mation about his financial status or otherwise engage in any dilatory
conduct such as refusing to pay for counsel when he had the assets
to do so. He disclosed his assets to the court and after being found
financially able to pay for his own counsel, he began to seek counsel.
When he was arraigned, he had not yet had the opportunity to sell his
property holdings and had not been able to obtain counsel based on
his other limited assets. Nothing in the record demonstrates that Owen
(who was incarcerated) had deliberately delayed selling his assets so
as to receive court-appointed counsel.
In addition, the Criminal Justice Act mandates that representation
be provided to any "financially eligible person." 18 U.S.C. § 3006A
(2000). The term "financially eligible person" does not equate to "in-
digency," and a defendant’s ability to pay must be evaluated in light
of the liquidity of the defendant’s assets, his personal and familial
needs, and any changes in his financial circumstances. See Museitef
v. United States, 131 F.3d 714, 716 (8th Cir. 1997); United States v.
Kelly, 467 F.2d 262, 266 (7th Cir. 1972). We have held that "if there
is any question about the defendant’s financial status, he should be
clearly advised that he has the right to counsel at the government’s
immediate expense and that any obligation to repay is conditional on
his becoming able to do so." Johnson, 650 F.2d at 418 (citing United
States v. Townes, 371 F.2d 930, 933 (4th Cir. 1966)). Indeed, as the
Eighth Circuit has recognized:
A criminal defendant who can afford to contribute some
amount to the expense of his defense but who cannot afford
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to hire counsel because his own resources are inadequate
either to pay a retainer or to assure private counsel of full
payment is functionally akin to an indigent defendant and
equally entitled to court-appointed counsel.
Hanson v. Passer, 13 F.3d 275, 278 (8th Cir. 1993).
It is clear that the proper course of action under these circum-
stances was for the district court to appoint counsel for Owen at the
time of his arraignment and then require him to repay the court the
expenses of his court-appointed counsel once he became financially
able to do so. While this is what the magistrate judge ultimately did,
it came too late to prevent Owen appearing unrepresented at a critical
stage of the criminal proceedings against him. Accordingly, I would
find that no knowing, intelligent, or voluntary waiver occurred and
that Owen was thus denied his right to counsel.
II.
Though I conclude that Owen was denied his right to counsel at a
critical stage in his criminal proceedings, I agree with the majority’s
finding that the error was harmless and thus concur in that portion of
its opinion.3
3Indeed, Judge Luttig’s opinion on this issue offers an insightful analy-
sis on seemingly conflicting case law and in the process does much to
clarify when courts should apply the harmless error standard of review
in cases in which a Sixth Amendment violation has occurred.
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