United States of America v. Richard D. Abbott

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 7, 2022
Decided June 29, 2022
Before
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-2506
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD D. ABBOTT,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 19-CR-85
Lynn Adelman,
Judge.
O R D E R
After three appointed attorneys withdrew from representing Richard D. Abbott,
the district court granted Abbott’s request to represent himself at his trial. He later
pleaded guilty to multiple counts of bank robbery. In this appeal, he argues that the
district court violated his Sixth Amendment right to counsel by allowing him to proceed
pro se after a colloquy that was deficient under Faretta v. California, 422 U.S. 806 (1975).
Because enough information indicates that Abbott’s invocation of his right to represent
himself was knowing, voluntary, and unequivocal, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 21-2506 Page 2
In May 2019, a grand jury indicted Abbott on three counts of robbery, 18 U.S.C.
§§ 2113 (a), 2, one count of attempted robbery, id. §§ 2113(a), (d), 2, and two counts of
using a firearm during and in relation to a crime of violence, id. § 924(c)(1)(A)(i).
Appointed counsel entered an appearance shortly after his arrest but moved to
withdraw after Abbott filed his own motion for a speedy trial. Counsel asserted that her
communication with Abbott had broken down; Abbott refused to let her speak at their
meetings and felt that she was not working quickly enough.
After granting the motion to withdraw, the district court appointed a second
attorney, but Abbott continued filing pro se motions and not coordinating with counsel.
For instance, he moved to suppress the results of a live line-up and a photo array before
his counsel did. Abbott also moved for pretrial release and to dismiss the indictment
before his second attorney moved to withdraw.
At the ensuing hearing in September 2020, Abbott emphasized that he believed
counsel was not moving quickly enough on his case, and he complained that an
independent investigation had not been conducted. Abbott did not “want to keep
prolonging things” and conceded that he would keep his attorney if counsel agreed to
speak to the witnesses Abbott had in mind. He further emphasized that even though he
did not have a GED, he had knowledge of criminal law and disagreed with his
attorney’s decision not to file certain motions. Abbott’s counsel explained that Abbott
had accused him of ineffective assistance and asked him to withdraw. He detailed that
communication had broken down with Abbott, and that he feared for his personal
safety based on a comment by Abbott. The court allowed Abbott to elaborate on his
view of the case before granting counsel’s motion to withdraw. The judge expressed
concern that Abbott would “have the same problem with the next lawyer” if Abbott
insisted on ignoring the advice of counsel and persisted in filing motions that had little
chance of success.
While awaiting a new attorney, Abbott continued to self-advocate, filing a
motion for the “biased” district judge to recuse himself, which was denied. The court
then appointed a third attorney for Abbott. But Abbott continued to pursue his own
litigation strategy, including by directly calling at least one robbery victim from jail. Just
weeks after the appointment, both counsel and Abbott filed motions for withdrawal,
citing communication problems.
In December 2020, the district court began the telephonic hearing on those
motions by observing that appointed counsel was “well respected” and that “it’s pretty
hard to deal with criminal cases without any lawyer.” Abbott voiced his belief that his

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No. 21-2506 Page 3
counsel was not representing him in good faith and was colluding with the
government. Abbott declared that he wished “to proceed pro se, and that’s my final
decision.” He urged the court to allow him to proceed to trial immediately to vindicate
his speedy-trial right.
The court acknowledged Abbott’s frustrations but advised that proceeding
pro se was “really not a good idea because [Abbott was] not experienced at cross
examination or arguing to jurors.” Abbott remained adamant, insisting: “I have a right
to do it, you know, so there’s no convincing.” He elaborated that he was 34, knew what
he was doing, and distrusted appointed attorneys. Abbott also volunteered information
on his mental state: He said that remaining in detention without a trial date was
“depressing” and “wearing on [his] anxiety” and noted that the dosage of his anxiety
medication had been decreased in jail for no apparent reason. Despite the medication
change, Abbott added that he was not being medicated for “any mental illnesses [he]
may have,” but he was “dealing with it fairly well” and had been “right on here.”
The court again tried to dissuade Abbott and explained that before granting his
request to represent himself, it would need to conduct a formal colloquy to ensure that
Abbott understood “all the ramifications.” Abbott reiterated that he would not work
with current counsel, as his stand-by or otherwise, though counsel was willing to
continue. The court ruled that counsel could withdraw but ordered another hearing to
determine Abbott’s “willingness” and “understanding of what it means” to represent
himself.
Approximately one month later, in January 2021, the district court opened the
subsequent in-person Faretta hearing by explaining the purpose: to ensure that Abbott
understood “the hazards and disadvantages of representing himself.” The court
questioned Abbott on his understanding of the charges against him, the potential
sentences, criminal law and procedure, and the rules of evidence. But it did not ask for
additional information about Abbott’s mental health, substance usage, age, formal
education, or knowledge of defenses. The court reiterated that Abbott’s interests would
be best served with appointed counsel before confirming that Abbott wished to
represent himself. The court found that Abbott “knowingly, voluntarily waived the
right to counsel” and allowed him to proceed pro se. Abbott later pleaded guilty to
three counts of bank robbery and one attempt, and was sentenced to 136 months’
imprisonment, three years’ supervised release, and restitution of $65,356.
We review a “legal determination that a defendant waived counsel de novo,
while considering its predicate factual findings for clear error.” United States v. Johnson,

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No. 21-2506 Page 4
980 F.3d 570, 576 (7th Cir. 2020) (citing United States v. Balsiger, 910 F.3d 942, 951–52
(7th Cir. 2018)). Courts must ensure that a defendant is aware of the perils of forgoing
counsel and chooses “with eyes open.” Faretta, 422 U.S. at 835 (quoting Adams v. United
States ex rel. McCann, 317 U.S. 269, 279 (1942)). To determine whether a defendant chose
self-representation consistent with the Sixth Amendment, we examine the entire record
and consider: (1) the extent of the district court’s formal inquiry into the defendant’s
decision; (2) the evidence in the record about whether the defendant understood the
dangers and disadvantages of self-representation; (3) the defendant’s background and
experience; and (4) the context of the defendant’s decision. United States v. Banks,
828 F.3d 609, 615–16 (7th Cir. 2016) (citations omitted).
On appeal, Abbott argues the district court erroneously allowed him to proceed
pro se because, he says, the Faretta colloquy was deficient, in violation of his right to
counsel or to waive that right knowingly and voluntarily. He contends that the court
did not assess his concerns about the lawyers who withdrew, nor did it inquire about
his mental competence, education level, age, knowledge of defenses to the charges, and
familiarity with criminal trial procedure. In particular, Abbott’s criticism that the court
neglected to ask about his mental competence at that hearing strikes us as valid: Abbott
had undergone a dosage change in his medication in recent months, which could have
affected his memory or understanding of prior discussions of his Sixth Amendment
right. Those discussions did, after all, take place over the course of five months. As
such, Abbott’s right to intelligently waive counsel would have been better protected
had the court raised questions about his mental state at the Faretta hearing. Similarly,
inquiring into Abbott’s knowledge of criminal defense during the colloquy, such as the
need to preserve issues for appeal, would have further alerted Abbott to the pitfalls of
self-representation.
Yet Abbott also acknowledges that courts consider the totality of the
circumstances when assessing the adequacy of a Faretta inquiry. See Johnson, 980 F.3d at
577. Recognizing a district court’s superior ability to assess a defendant’s desire to
represent himself, we have declined “to police too closely the details of district courts’
Faretta hearings,” mandate no magic words for a colloquy to be sufficient, and indeed
do not even require a hearing if the record otherwise shows that the defendant
knowingly elected to proceed pro se. United States v. Vizcarra-Millan, 15 F.4th 473, 486 &
n.1 (7th Cir. 2021). Therefore, even if the district court here did not review every
potential issue at the Faretta hearing itself, it could rely on the myriad other filings and
hearings for information relevant to the Banks factors. See Vizcarra-Millan, 15 F.4th at
486; see also Banks, 828 F.3d at 615.

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That record shows that the district court did enough to safeguard Abbott’s right
to a knowing and voluntary waiver of counsel. For instance, at the hearing to consider
the third motion to withdraw, the court heard Abbott enumerate his many grievances
with his third lawyer specifically and with appointed representation generally. And
Abbott affirmatively asserted he understood what he was doing, that he was “right on”
mentally, that he was 34 years old, and adamant in wishing to proceed pro se. Further,
the court had many reasons to believe that Abbott was firm in his desire to represent
himself: Abbott invariably filed motions on his own behalf even while represented and
had already run through three attorneys despite the court’s attempts to secure
compatible counsel for him. See United States v. Volpentesta, 727 F.3d 666, 676 (7th Cir.
2013) (upholding inexperienced defendant’s invocation of right to proceed pro se after
disagreements with counsel). And Abbott’s comments at the hearing on the third
motion to withdraw and the Faretta hearing reflected his unequivocal desire to
represent himself despite the district court’s consistent warnings against doing so.
Even after Abbott insisted on proceeding pro se and balked at the idea of stand-
by counsel, the court conducted a formal colloquy to determine Abbott’s knowledge of
the law and his case. Abbott’s answers, combined with his prior filings and court
appearances, demonstrated his rudimentary understanding of criminal procedure and
his Sixth Amendment right to self-representation. See id. at 677–78; Iowa v. Tovar, 541
U.S. 77, 89 (2004) (citing Faretta, 422 U.S. at 835) (holding that a defendant need not have
a lawyer’s skill or knowledge but should be made aware of the dangers of representing
himself). Although the Faretta colloquy itself could have included a more robust
discussion of Abbott’s knowledge of defenses and criminal procedure and inquired
about his mental state at that point in time, taken with the body of information before
the court, the colloquy sufficed to ensure that Abbott’s waiver was knowing and
voluntary.
AFFIRMED

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