dissenting:

The majority opinion holds that the district court judge violated Scott and Todd Flewitt’s constitutional right to self-representation when he revoked their pro se status right before trial. The record shows that the Flewitts had equivocally asserted their right to proceed pro se and used that right to disrupt and delay their trial which was a sufficient reason to terminate their self-representation.

I.

STANDARD OF REVIEW

The factual findings of the district court upon which it based its decision to revoke pro se status will not be reversed unless clearly erroneous. United States v. Smith, 780 F.2d 810, 811 (9th Cir.1986); Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir.1982).

II.

RIGHT TO SELF REPRESENTATION

For self-representation, a defendant must (1) “knowingly and intelligently” forego counsel, and (2) request “clearly and unequivocally” to proceed pro se. Faretta v. California, 422 U.S. 806, 835 , 95 S.Ct. 2525, 2541 ; United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982); United States v. Kennedy, 564 F.2d 1329, 1340 (9th Cir.1977), cer t. denied, 435 U.S. 944 , 98 S.Ct. 1526 , 55 L.Ed.2d 541 (demand to proceed pro se must be unequivocal).

A. Waiver of Counsel

The preferred procedure to determine whether a defendant has knowingly and intelligently waived his right to counsel is for the district court to discuss in open court with the defendant each of three elements: (1) the nature of the charges against him, (2) the possible penalties, and (3) the dangers and disadvantages of proceeding without counsel. United States v. Balough, 820 F.2d 1485, 1487-88 (9th Cir.1987).

Defendants, having fired their attorney of choice and dissatisfied with court appointed counsel, moved to defend themselves pro se at the status conference a week before the first trial date of April 23, 1985. The district court judge, after ascertaining that none of the defendants had legal experience or had defended themselves before, cautioned them of the disadvantages and dangers of self-representation. He explained that the nature of the *677 charges against them were “a rather complicated and complex mail fraud case.” The court warned them they would have to comply with the court procedures and rules and regulations of the court system. Although the court did not discuss on the record the possible penalties the defendants were facing, they had been advised that their case appeared to be a complicated and complex mail fraud case.

When the district court fails to discuss each of the three elements in open court, we can determine under a limited exception whether the particular facts and circumstances surrounding the case including the background, experience and conduct of the accused show that the waiver was knowing and intelligent despite the absence of a specific inquiry in the record. Id. at 1488 ; Harris, 683 F.2d at 324 . Finding waiver under the exception is to prevent automatic reversal by the failure of the district court to discuss each of the three elements of the preferred procedure, and should be applied only in rare cases. Balough, 820 F.2d at 1488 ; United States v. Rylander, 714 F.2d 996, 1005 (9th Cir.1983); Harris, 683 F.2d at 324 .

The inquiry focuses on whether the defendant fully understands the “dangers and disadvantages of self-representation” to waive his right to counsel “with his eyes open.” Balough, 820 F.2d at 1489 . The district court here painstakingly explained the dangers of self representation:

Unlike the trial court in Rylander , the court explained and discussed with the defendants the nature of the charges and specific disadvantages with proceeding pro se and they understood them. Rylander, 714 F.2d at 1005 .

B. Unequivocal Demand to Proceed Pro Se

It is settled in this circuit that the demand to proceed pro se must be unequivocal. Armant v. Marquez, 772 F.2d 552, 555 (9th Cir.1985) citing Meeks v. Craven, 482 F.2d 465, 467 (9th Cir.1973).

Meeks, 482 F.2d at 467 (citations omitted). In Meeks , when the trial court asked the defendant “You still want to represent yourself?” and the defendant answered “I think I will”, the panel found that the demand was a “prototype of equivocation.” Id.

Here, the posture of the defendants throughout the proceedings indicates they thought they should be represented by counsel. The defendants hired an attorney to represent them when they were first accused of criminal charges. This indicates their awareness that the charges were serious and complex and needed the attention of an attorney. Then, they had a falling out with the attorney and fired him. They proved they were indigent and requested appointed counsel. The court originally appointed joint counsel, then separate counsel for each defendant. When the trial court refused to appoint yet another set of lawyers of the defendants’ own choosing, the defendants demanded to proceed pro se. The court allowed them to do so provided they complied with the procedural rules and not use their status to delay the trial. They requested and were appointed advisory counsel. However, later they used a “jailhouse” lawyer instead of the advisory counsel to file a motion to disqualify the judge, and then, blamed the procedural deficiencies in their affidavits on the jailhouse lawyer.

There are numerous other examples of their equivocation: The defendants filed their motion to disqualify the trial judge *678 the day before they were to go to trial. Part of that motion alleges that the defendants did not properly waive counsel and that they were being denied their right to counsel. This prompted the government to request a hearing to determine if defendants properly waived counsel. The court stated:

When the judge questioned the Flewitts about their waiver of counsel they continued to show dissatisfaction with their appointed lawyers, not a desire to proceed pro se.

Later in the discussion between the court and the three Flewitts, Miles Flewitt stated,

The court stated that he had a right to counsel and a right to represent himself and which of these did he prefer? Miles stated, “I choose at this time to represent myself.” (Emphasis added.) Todd’s waiver at the time was also equivocal, “It might be just a simple waiver or there might be other circumstances involved that we have to have time to prepare to argue either orally or in papers; and we are saying that we just weren’t given time to present our side of the story.” These statements are even more equivocal than the statements the panel in Meeks found to be a “prototype of equivocation.” Meeks, 482 F.2d at 467 .

The record clearly shows the defendants were equivocal in their assertion of their pro se right. They had retained counsel, appointed counsel, advisory counsel, jailhouse counsel, and standby counsel. The majority correctly states that the judge took a valid waiver from the defendants at the September 9th hearing. [Opinion at 6] In fact, this was the second time the judge took a waiver from defendants. The September 9th hearing was necessary as the defendants asserted in their motion to disqualify the trial judge that they were denied counsel and that the trial judge took an invalid waiver of counsel from them. At the hearing, they recanted and asserted this wasn’t what they meant, and asserted that they still wanted to proceed pro se.

The trial judge attempted to satisfy the defendants demands for right to counsel by appointing first joint then separate counsel, by appointing advisory counsel and by retaining appointed counsel as standby counsel. At the same time, the trial judge attempted to accommodate their requests to proceed pro se by allowing them pro se status at the first trial date of April 23rd, by taking another waiver of counsel at the September 9th hearing (which the majority cites) and finally by offering them the opportunity to gain the discovery they wanted at the September 30th hearing.

All along, the judge recognized that the defendants did not want to proceed pro se. What they wanted, and apparently what they did, was to put error on the record for appeal, no matter how the judge ruled. In fact, the paragraph of the transcript which proceeds the September 9th waiver cited by the majority, the trial judge states:

[Tr. at 155] Later, when he revoked their pro se status during the September 30th hearing (a week before the third trial date), he reiterates this observation:

[Tr. at 197-98]. (Emphasis added.) Whether or not the judge took a valid waiver April 23rd or September 9th is irrelevant in the context of the chain of events that lead to the judge’s conclusion that the defendants were trying to put error on the record, and never meant to assert their right to proceed pro se. There is no magic moment in these pre-trial proceedings at which we can say, that defendants never really wanted counsel (which they requested and received at least four separate times) or that defendants unequivocally demanded to proceed pro se, which they asserted, then denied then reasserted, all the while in the same breath denouncing their counsel. What the trial judge sensed by their actions in hiring and firing counsel and from what they had said in their motions was that they were trying to put error on the record for appeal. See United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981) (“Romero was following the scenario used by other tax protestors in discharging appointed counsel and then contending unknowing waiver of counsel.”); Meeks, 482 F.2d at 467 . The court did not err under these circumstances in finding defendants incapable of representing themselves.

III.

TACTIC TO DELAY

A defendant may not invoke his right to self representation if it is used as a tactic to secure delay. Smith, 780 F.2d at 811 ; Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.1982). Here, defendants attempted to delay their trial on the merits by asserting their right to proceed pro se in an untimely manner and by refusing to comply with court procedure.

A. Timely Assertion of Pro Se Right

A motion to proceed pro se is timely if made before the jury is impaneled, unless it is shown to be a tactic to secure delay. Fritz, 682 F.2d at 784 . Here, the defendants indicated at the status conference a week before the first trial date that they would like to represent themselves. Speaking through Todd Flewitt, they indicated that they thought their attorneys were incompetent, that the attorneys were reluctant to take the case to trial and were not prepared. They further stated that their attorneys told them if they went to trial they were fairly sure they would be found guilty. The attorneys stated they were *680 ready to go to trial. The trial judge refused to give them different counsel.

A week later, on April 23, 1985, which was to be the morning of the trial, the defendants filed a motion for a continuance and discharge of counsel. They complained in the motion they were subject to “trial by ordeal,” but they did not recite any facts to support that claim. They complained about ineffective representation by counsel without alleging any particular facts. The court stated that “because these are court appointed attorneys that will have to be paid by the government ... I will not permit you to pick and choose your own attorney that will be appointed at public expense without a good reason for it, and I haven’t seen a good reason yet.” Defendants recited a litany of alleged abuses by their counsel. These facts were disputed by the defendants’ counsel. The court said, “I find that the attorneys were competent attorneys, they are able to handle the case and being prevented from doing so by the defendants. So I am not going to appoint other counsel.” The court then allowed defendants to proceed pro se and set a new trial date of July 23, 1985. Defendants agreed to this date which gave them ninety days to prepare their case for trial.

On the eve of the July trial date, the defendants filed their motion to disqualify the judge and asserted they had not properly waived counsel. At this point, the district court changed the trial date for a third time to October 8, 1985. On the eve of that trial date, five months after the district court granted defendants the right to proceed pro se, they had neither started or completed any trial preparation, had not used their advisory counsel or their investigator, and wanted more time to conduct discovery. The district court properly revoked their pro se status as he felt they were using it to delay the trial, and were not using the resources they were given to proceed with their case.

B. Refusal to Comply with Court Procedure

A pro se defendant must comply with the relevant rules of procedural and substantive law. Faretta v. California, 422 U.S. 806 , 834 n. 46, 95 S.Ct. 2525 , 2541 n. 46, 45 L.Ed.2d 562 (1975). A defendant has a constitutional right to waive counsel and conduct his own defense only if he is “able and willing” to abide by “rules of procedure and court room protocol.” McKaskle v. Wiggins, 465 U.S. 168, 173 , 104 S.Ct. 944, 948 , 79 L.Ed.2d 122 (1984). See also United States v. Merrill, 746 F.2d 458, 465 (9th Cir.1984) (a pro se defendant is subject to the same rules of procedure and evidence as defendants who are represented by counsel.).

The defendants failed to file motions properly even though they were given the help of an advisory attorney, refused to conduct discovery or to participate in discovery matters, and refused to comply with the court’s rulings or the rules for prisoners. The record clearly supports the district court’s finding that the defendants refused to abide by court procedure.

On the morning of the April 23rd trial date, defendant Scott Flewitt filed a motion for a continuance and a notice of discharge of counsel. This motion was not filed correctly, the clerk did not have a copy, nevertheless the court considered and granted the motion. In July the defendants’ motion to disqualify the judge contained affidavits claiming that they made an ineffective waiver of counsel. Upon motion by the government, the court held a hearing and *681 asked defendants about their waiver. Defendants refused to answer the court’s questions because they insisted they should have twenty-one days from the government’s motion in which to reply. Although the court had already granted defendants a ninety day continuance, the court gave them a further continuance of five months setting the trial date to October 8. At the status conference on September 30, 1985 before the October 8 trial date, defendants filed a motion requesting a stay pending appeal of their motion to disqualify the judge, in essence asking the trial court to once again delay the trial. In fact the court states:

Defendants insisted that they had made four motions during this time. The court noted that none of these motions were adequate by law, however the defendants’ request for an investigator had been granted. Further, the court had instructed defendants to resubmit their discovery motion with notice to the prosecution which they declined to do.

Defendants argued that they were denied a July 6 discovery request asking for co-counsel and access to their personal property being held in a warehouse. The court denied that request because the defendants had been appointed an investigator and advisory counsel, and absent a showing of proof, the discovery opportunities that they had been given were adequate. In fact the court stated, “What I should have done is just to strike your motion entirely because it contained improper materials relative to unflattering references to the United States Attorney which is against the local rules.” The court very painstakingly tried to help defendants make an offer of proof so that he could grant their discovery motion even though they had misfiled it and it did not comply with the rules. The defendants’ answers to the court’s inquiry were evasive and indirect and did not contain any specific information, for instance:

Defendants were given the opportunity but refused to review original discovery materials that were offered by the prosecution, claiming that they were given inadequate materials to write with, they were given inadequate time to look at the material and that they were not given copies which they requested. The defendants refused to give handwriting exemplars and fingerprints to the postal inspection service. On the government’s motion the district court ordered compliance and defendants refused to cooperate.

Mr. Mabry, Scott Flewitt’s counsel, states that he went to Terminal Island several times to meet with Scott and Todd Flewitt to develop their defense.

When attorney Mabry tried to get a financial affidavit from Scott Flewitt, he refused to follow procedure.

The court’s finding that defendants were unable to comply with the procedural rules was not clearly erroneous. Smith, 780 F.2d at 811 .

The right to self representation cannot be used to “subvert the trial” or to “effect other dilatory purposes.” United States v. Coupez, 603 F.2d 1347, 1351 (9th Cir.1979). See Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46. Defendants’ refused to cooperate with their counsel and to comply with their requests, thus hindering the development of their defense. This further undermines their Faretta right, showing they were unwilling to abide by court procedure and rules. McKaskle, 465 U.S. at 173 , 104 S.Ct. at 948 .

IV.

CONCLUSION

The district court did not clearly err in revoking Todd and Scott Flewitts’ pro se *683 status. The Flewitts were equivocal in asserting their right of self representation and used that right to delay and frustrate the court’s ability to get their case to trial. They were incapable of conducting their defense. I respectfully dissent and would affirm the district court.