United States of America v. Thomas W. Pitts

United States Court of Appeals
For the Eighth Circuit
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No. 24-1154
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United States of America
Plaintiff - Appellee
v.
Thomas W. Pitts
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 13, 2025
Filed: May 19, 2025
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Before GRASZ, STRAS, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Thomas W. Pitts was indicted for conspiracy to distribute 50 grams or more
of methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and distribution
of five grams of more of methamphetamine, § 841(a)(1) and (b)(1)(B). He was
dissatisfied with his court appointed attorney, so the district court appointed a new
one. Pitts did not like that lawyer either. A few days before trial, Pitts announced
he wanted to represent himself.

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During a hearing the next day, the court told Pitts, “It’s not a very good
decision. Any lawyer who wants to go pro se is a bad decision.” The court excused
the Government from the courtroom and asked Pitts if he was having issues with his
lawyer. Pitts said yes and listed his grievances: not filing requested motions, having
minimal contact and visits, not providing Pitts discovery, failing to subpoena
witnesses, and lying. After a few clarifying questions, the court declared, “So we
are going to trial.” Things continued:
Pitts: So am I going to be representing myself?
The court: Yeah, you want to go pro se.
Pitts: Okay. How can you make me do this when I haven’t had
time to even look through my case?
The court: [The Government] [is] coming back in. So you don’t have
to like my decision, but it’s my decision.
With the Government back in the room, the court considered how Pitts would
testify (if he wanted to) while representing himself. The court also instructed Pitts
on “some basic rules” like how to make an opening statement, how to examine and
cross-examine witnesses, and the need to pause if the Government objected. At the
end, the Government asked whether “the full thread inquiry was done on self-
representation.” The court replied, “Yes, that is accurate.”
At the close of the hearing, Pitts moved—citing “cestui que vie trust” under
canon law—to have the court, as his “trustee,” discharge him and pay him
compensation for his “false arrest.” His motion was denied.
Pitts defended himself at trial, and a jury convicted him on all counts. The
court sentenced him to 25 years in prison. Pitts appeals, arguing his Sixth
Amendment rights were violated because he was not warned of the perils of self-
representation. The Government concedes error.
The Sixth Amendment guarantees a criminal defendant the right to counsel.
United States v. Lemicy, 122 F.4th 298, 305 (8th Cir. 2024). “It also protects a

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defendant’s right to waive his right to counsel and to represent himself” at trial.
United States v. Brown, 956 F.3d 522, 524 (8th Cir. 2020) (citation omitted); see
also Faretta v. California, 422 U.S. 806, 807 (1975). Even so, a district court must
be satisfied that the defendant “knowingly, voluntarily, and intelligently waive[d]
[his] right to counsel.” Lemicy, 122 F.4th at 305; see also Iowa v. Tovar, 541 U.S.
77, 88 (2004). We review de novo a district court’s decision to allow a defendant to
waive counsel and proceed pro se. United States v. Lebeau, 867 F.3d 960, 973 (8th
Cir. 2017).
The “key inquiry” is “whether [Pitts] was made sufficiently aware of his right
to have counsel and of the possible consequences of a decision to forgo the aid of
counsel.” United States v. Kiderlen, 569 F.3d 358, 364 (8th Cir. 2009) (citation
omitted). Either (1) the district court must “inform the defendant of the dangers and
disadvantages of self-representation” or (2) “evidence in the record—including a
defendant’s background, experiences, and conduct—must establish the defendant
knew and understood the disadvantages of self-representation.” Lemicy, 122 F.4th
at 305.
The only warning here was proceeding pro se is “not a very good decision”—
and even for a lawyer would be a “bad decision.” While we have upheld waivers as
knowing and voluntary when the district court warned the defendant self-
representation is a “horrible mistake” or a “bad idea,” those cases included other
specific warnings. See United States v. Tschacher, 687 F.3d 923, 932 (8th Cir. 2012)
(in addition to “horrible mistake” warning, district court asked defendant “seriously
to reconsider [his] decision,” explained that “he would be held to the same standard
as licensed attorneys,” allowed him “to ask any questions regarding his self-
representation,” and gave defendant a recess to ponder his decision before “again
ask[ing]”); United States v. Turner, 644 F.3d 713, 722 (8th Cir. 2011) (in addition
to emphasizing that self-representation was a “bad idea,” district court “assured itself
that [defendant’s] decision was not based on any shortcomings in his appointed
counsel” and told defendant “how his ignorance of the rules of procedure and
evidence would prejudice his defense” and how “his appointed counsel was far better

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positioned to put the government to its burden”). While we do not have “a list of
essential points” or “specific warnings” about self-representation, Tschacher, 687
F.3d at 932 (citations omitted), the district court must still “adequately warn[] the
defendant about the dangers and disadvantages of proceeding pro se,” United States
v. Crawford, 487 F.3d 1101, 1106 (8th Cir. 2007). That did not happen here.
Neither does the record convince us that Pitts knew the risks of representing
himself. Pitts had seventeen adult convictions spanning approximately fifteen years.
But “extensive prior contact with the criminal justice system” by itself does not
establish the required knowledge and understanding. See United States v.
Armstrong, 554 F.3d 1159, 1165 (8th Cir. 2009) (in addition to being a “veteran of
the criminal justice system,” defendant “also had previous experience representing
himself” and “confirmed” his understanding of proceeding pro se at hearings).
While we may infer a defendant’s understanding of the risks of self-representation
from his “sophisticated and intelligent performance” in legal proceedings, Pitts’s
appeal to canon law suggests no such understanding. Armstrong, 554 F.3d at 1166.
And with the Government’s concession, we cannot locate anything in the record that
shows that Pitts knew and understood the dangers of self-representation. See
Crawford, 487 F.3d at 1106 (examining substance of defendant’s “many [pro se]
filings” to determine that defendant did not have “the knowledge required to
effectively waive his right to counsel”).
The waiver of counsel that is not knowingly, voluntarily, and intelligently
made “cannot be harmless,” McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984),
and “requires reversal of the conviction,” Reese v. Nix, 942 F.2d 1276, 1280 (8th
Cir. 1991) (citing Faretta, 422 U.S. at 836).
The judgment is vacated, and the case is remanded.
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