`
`
`
`In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`Nos. 19-3476, 19-3481, 19-3484, 19-3537, 20-1113 & 20-1266
`UNITED STATES OF AMERICA,
`
`Plaintiff-Appellee,
`
`GILBERTO VIZCARRA-MILLAN, et al.,
`
`v.
`
`Defendants-Appellants.
`____________________
`
`Appeals from the United States District Court for the
`Southern District of Indiana, Indianapolis Division.
`No. 1:17-cr-00222-JMS-TAB — Jane Magnus-Stinson, Judge.
`____________________
`
`ARGUED MAY 12, 2021 — DECIDED SEPTEMBER 30, 2021
`____________________
`
`Before FLAUM, HAMILTON, and BRENNAN, Circuit Judges.
`HAMILTON, Circuit Judge. Richard Grundy III and his net-
`work of drug suppliers, couriers, distributors, and dealers
`trafficked hundreds of pounds of methamphetamine in Indi-
`anapolis. Grundy and over two dozen co-conspirators were
`indicted. Most ultimately pled guilty. After a three-week trial,
`Grundy and four other defendants were convicted of all the
`charges against them. In these consolidated appeals, the five
`
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`2
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`Nos. 19-3476, et al.
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`trial defendants and one defendant who pled guilty challenge
`their convictions. There are no sentencing issues.
`Grundy argues that the district court violated his Sixth
`Amendment right to counsel by improperly obstructing him
`from representing himself. Gilberto Vizcarra-Millan argues
`that the district court should have disqualified his chosen
`counsel due to a conflict of interest. Derek Atwater, James
`Beasley, and Undrae Moseby all challenge the denials of their
`untimely motions to suppress evidence. Atwater, Beasley, and
`Ezell Neville all contend that the evidence was insufficient to
`support some of their convictions.
`We affirm the convictions of Grundy, Vizcarra-Millan,
`Moseby, Atwater, and Neville. We also affirm the conviction
`of Beasley on one count but reverse his convictions on two
`others. The evidence at trial necessarily left a reasonable
`doubt as to whether he committed those crimes. Beasley’s
`case is remanded to the district court for resentencing on the
`one remaining count.
`I. Factual and Procedural Background
`We provide the basic outline of Grundy’s network and the
`procedural history of this case here, with more specific details
`as needed for each defendant’s appeal. Because the co-con-
`spirators’ appeals do not hinge on the substance of the con-
`spiracy, we omit many of the details of the inner workings of
`Grundy’s crew as presented during the trial.
`A. Grundy and his Crew
`Grundy has been of interest to law enforcement for years.
`He has been arrested or indicted for, among other things,
`murder and conspiracy to commit murder, though he was
`never convicted of so serious a charge. As recently as 2015 or
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`Nos. 19-3476, et al.
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`3
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`2016, he had been indicted on four counts of conspiracy to
`commit murder, but he ultimately pled guilty to a lower-level
`state charge for marijuana distribution.
`After his plea in the state case, Grundy pooled seed money
`to restart his drug-trafficking network. Gilberto Vizcarra-Mil-
`lan, who lived in Arizona, provided the drugs to Grundy. A
`network of couriers, including defendant Undrae Moseby,
`brought the drugs to Indiana.
`Once the drugs arrived in Indianapolis, Grundy distrib-
`uted them himself or via a network of wholesalers, including
`David Carroll. These wholesalers then sold to retail dealers,
`including Derek Atwater and James Beasley. Ezell Neville was
`another associate of Grundy’s. The parties dispute the exact
`nature of his relationship with Grundy, but he also sold
`Grundy’s methamphetamine. All told, Grundy and his crew
`brought at least 280 pounds of highly pure methampheta-
`mine, as well as other drugs, to the streets of Indianapolis.
`In May 2017, federal law enforcement obtained wiretaps
`for the cell phones of crew members. FBI agents also coordi-
`nated controlled drug buys from Grundy’s dealers. Things
`started to fall apart for the Grundy gang in August 2017. Law
`enforcement seized over $84,000 in cash that was headed to
`Vizcarra-Millan to purchase more drugs. Next, in September
`2017, agents intercepted a phone call between Carroll and
`Beasley discussing an upcoming methamphetamine deal.
`Soon after Beasley purchased the methamphetamine, local
`police stopped the car in which he was a passenger for a rou-
`tine traffic violation. The officers smelled raw marijuana and
`recovered drug paraphernalia while searching the car. A
`search of Beasley’s person uncovered methamphetamine. The
`driver of the car, Susan Koch, told the officers that Beasley
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`Nos. 19-3476, et al.
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`stored more methamphetamine in her home and gave her
`consent for a search that recovered more methamphetamine.
`On November 17, federal agents executed several search
`warrants against members of the conspiracy. As relevant here,
`they uncovered methamphetamine and drug-trafficking par-
`aphernalia at Atwater’s house. They also raided what they be-
`lieved to be the “clubhouse” of Grundy’s gang. Several mem-
`bers of the conspiracy were present, and the police collected
`several cell phones, including two used by Moseby that con-
`tained incriminating evidence of his connection to the Grundy
`crew.
`B. Pretrial and Mistrial
`In two separate cases, over two dozen members of
`Grundy’s gang were charged with federal offenses, including
`conspiracy to distribute drugs and money laundering. Most
`defendants ultimately pled guilty. David Carroll, one of
`Grundy’s key wholesalers, agreed to testify for the prosecu-
`tion. Carroll’s attorney, John Tennyson, however, had also
`been retained by Vizcarra-Millan, who was charged in the sec-
`ond, formally distinct but related case. The government
`pointed out the potential conflict of interest—if Carroll were
`to testify at trial (which he had agreed to do), he might incrim-
`inate Vizcarra-Millan. If he did, Tennyson’s duties to his re-
`spective clients would conflict. See Indiana Rule of Prof’l Con-
`duct 1.7.
`Two district judges held hearings to discuss the conflict
`with Vizcarra-Millan and whether he wanted to waive it. At
`the first hearing with Judge Barker, the potential conflict ap-
`peared both minor and unlikely to become actual, and Viz-
`carra-Millan said he would waive any conflict of interest.
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`Nos. 19-3476, et al.
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`5
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`When both of the Grundy cases were later consolidated before
`Judge Magnus-Stinson, she also held a hearing that ended
`with Vizcarra-Millan again waiving his right to unconflicted
`counsel.
`But then, five weeks before trial, attorney Tennyson filed a
`motion to withdraw the waiver because his client had rejected
`the government’s plea offer and said he intended to go to trial.
`Contrary to what he had told both judges months earlier, Ten-
`nyson now claimed his conflict of interest prohibited him
`from adequately representing Vizcarra-Millan at all. Judge
`Magnus-Stinson denied Tennyson’s motion without holding
`a hearing. Vizcarra-Millan later pled guilty without a deal
`from the government.
`In the meantime, the district court had set a deadline in
`February 2019 for filing motions to suppress evidence.
`Months later, just days before trial, defendants Beasley and
`Moseby submitted motions to suppress, styled as evidentiary
`motions in limine. The district court denied both motions.
`Trial got under way on July 8, 2019, in Indianapolis. The
`court took the unusual step of empaneling an anonymous
`jury after the government came forward with evidence of at-
`tempted witness tampering and intimidation. The court pro-
`vided juror information to defense counsel but forbade the
`defendants themselves from learning the jurors’ names or de-
`tailed personal information from which they could be identi-
`fied. The first trial did not last long. By day three, the district
`court learned that, despite the precautions, some defendants
`had gotten their hands on this confidential information.
`Moseby had written down the names of several jurors.
`Grundy had obtained partially redacted juror questionnaires.
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`6
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`Nos. 19-3476, et al.
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`The district court declared a mistrial and moved the trial
`venue to Evansville.
`Between the mistrial and the second trial, Grundy moved
`to represent himself. He wanted to pursue his own strategy,
`but he also wanted standby counsel to help him with the nuts
`and bolts of lawyering. The district court held a hearing that
`ended when Grundy ultimately declined to waive his Sixth
`Amendment right to counsel.
`C. Second Trial and Posttrial Procedure
`The second trial lasted three weeks. As relevant here, sev-
`eral co-conspirators testified against Grundy, implicating him
`as the mastermind of this drug trafficking ring. The evidence
`showed that Atwater, Beasley, and Neville all bought drugs
`from Grundy or one of his associates. The details of each de-
`fendant’s relationship to Grundy’s network, however, varied
`considerably, as did the circumstances of each documented
`purchase. During the trial, Atwater also submitted another
`late motion to suppress. The district court denied it, as well.
`The jury found all defendants guilty on all counts. All de-
`fendants were found guilty of Count 1, conspiracy to distrib-
`ute drugs. Neville was also convicted of conspiring to launder
`a monetary instrument in connection with the seizure of more
`than $84,000 from Grundy’s shipment of cash (Count 24), and
`Beasley was convicted on two counts of possessing metham-
`phetamine with intent to distribute (Counts 16 and 17).
`The district court imposed a life sentence on Grundy. At-
`water was sentenced to 216 months; Beasley was sentenced to
`216 months, Moseby to 240 months, and Neville to 360
`months.
`
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`Nos. 19-3476, et al.
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`7
`
`Vizcarra-Millan had pled guilty before the first trial. His
`attorney, Tennyson, submitted both a sentencing memoran-
`dum and a motion to withdraw his guilty plea. The district
`court held a hearing at which it first denied the withdrawal
`motion and then sentenced Vizcarra-Millan to 300 months in
`prison.
`D. Issues on Appeal
`On appeal, Grundy argues that the district court violated
`his Sixth Amendment right to counsel by unduly discourag-
`ing him from exercising his right to represent himself. Viz-
`carra-Millan contends that his right to counsel was violated
`by the district court’s failure either to disqualify Tennyson or
`to grant his motion to withdraw his conflict waiver shortly
`before trial.
`Atwater, Beasley, and Moseby appeal the district court’s
`denials of their respective motions to suppress. Atwater ar-
`gues that the search of his home was not supported by prob-
`able cause. Beasley moved to suppress the evidence seized
`during the traffic stop on the ground that the officers lacked
`reasonable suspicion that the driver had committed a traffic
`violation. Moseby objects to the government’s seizure of his
`cell phones during the raid on Grundy’s clubhouse and its
`search of those phones.
`Finally, Atwater, Neville, and Beasley argue that the evi-
`dence did not support some of their convictions. All three say
`that the evidence at trial was insufficient to rule out the possi-
`bility that they were merely buyers from Grundy’s gang, as
`opposed to co-conspirators. Neville also challenges his
`money-laundering conviction, and Beasley challenges his
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`8
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`Nos. 19-3476, et al.
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`conviction for constructively possessing the methampheta-
`mine found at Koch’s home.
`In Part II, we address and reject first Grundy’s and then
`Vizcarra-Millan’s arguments that their Sixth Amendment
`rights to counsel were violated. In Part III, we affirm the deni-
`als of the motions to suppress filed by Atwater, Beasley, and
`Moseby. In Part IV, we address the sufficiency of the evidence
`for Atwater, Neville, and Beasley, affirming all convictions ex-
`cept two of Beasley’s.
`II. Right to Counsel: Grundy and Vizcarra-Millan
`The Sixth Amendment provides that “in all criminal pros-
`ecutions, the accused shall enjoy the right … to have the assis-
`tance of counsel for his defense.” This constitutional com-
`mand encompasses the accused’s right to choose his own
`counsel, to have counsel free of conflicts of interest, and to
`choose to forgo counsel and to represent himself.
`Grundy, by invoking his right to represent himself, and
`Vizcarra-Millan, by invoking his right to choose his own
`counsel despite a conflict of interest, each put the district court
`in a constitutional double-bind. No matter how a district court
`decides each issue, the defendant will have an issue to appeal.
`We have, for example, compared a district court’s navigation
`of a request to proceed pro se to passing between Scylla and
`Charybdis, see United States v. Sandles, 23 F.3d 1121, 1127 (7th
`Cir. 1994), and similarly, “trial courts confronted with multi-
`ple representations face the prospect of being ‘whip-sawed’
`by assertions of error no matter which way they rule.” Wheat
`v. United States, 486 U.S. 153, 161 (1988); see also United States
`v. Lowry, 971 F.2d 55, 60 (7th Cir. 1992) (quoting same and en-
`couraging district courts to consider the ramifications of joint-
`
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`Nos. 19-3476, et al.
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`9
`
`representation disqualification rulings in light of the high
`constitutional stakes in either direction). We accordingly give
`considerable deference to the district court’s decisions to the
`extent that they are subject to abuse-of-discretion analysis. We
`must also be mindful of the district court’s front-row seat,
`which is especially relevant where a defendant deliberately
`seeks to sow ambiguity for a tactical advantage. See generally
`United States v. Balsiger, 910 F.3d 942, 952 (7th Cir. 2018).
`A. Grundy’s Motion to Represent Himself
`Richard Grundy presents a claim under Faretta v. Califor-
`nia, 422 U.S. 806, 819 (1975). He says that the district court’s
`effort to ensure that his intended waiver of his Sixth Amend-
`ment right to counsel was knowing and intelligent went too
`far, effectively preventing him from exercising his Faretta
`right, a request that he ultimately withdrew.
`As an accused defendant, Grundy had a Sixth Amend-
`ment right to represent himself: “The Sixth Amendment does
`not provide merely that a defense shall be made for the ac-
`cused; it grants to the accused personally the right to make his
`defense.” Faretta, 422 U.S. at 819. But any waiver of counsel in
`favor of self-representation must be knowing and intelligent.
`A pro se defendant “should be made aware of the dangers
`and disadvantages of self-representation, so that the record
`will establish that he knows what he is doing and his choice
`is made with eyes open.” Id. at 835.
`To establish a record, we strongly encourage district
`courts to conduct a formal hearing into whether the defend-
`ant is going into self-representation with “eyes open.” Faced
`with a defendant invoking his right to proceed pro se, a dis-
`trict court should:
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`10
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`Nos. 19-3476, et al.
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`engage in a thorough and formal inquiry with a
`defendant that probes his age, education level,
`and understanding of the criminal charges and
`possible sentences. The court should also in-
`form the defendant of the difficulties of pro-
`ceeding pro se.
`United States v. Johnson, 980 F.3d 570, 577 (7th Cir. 2020) (quo-
`tation marks and citations omitted). We are reluctant to police
`too closely the details of district courts’ Faretta hearings. The
`district judge “is on the razor’s edge in assisting a defendant
`to make an informed choice between representation by coun-
`sel with whom the defendant is irrationally dissatisfied and
`self-representation.” United States v. Oreye, 263 F.3d 669, 672
`(7th Cir. 2001).1
`This case illustrates this razor’s edge. To ensure that a
`waiver is “knowing and intelligent,” the court should point
`out the disadvantages of self-representation. If the court does
`not say much about these challenges, defendants who waive
`their right to counsel may argue on appeal that the Faretta col-
`loquy was too cursory. E.g., Johnson, 980 F.3d at 577. But if the
`district court goes into detail about these challenges, a defend-
`ant who chooses in the end not to waive counsel may argue
`on appeal that his Faretta rights were burdened by a colloquy
`that was too persuasive. See Sandles, 23 F.3d at 1127. That’s
`part of the reason there is no “talismanic procedure” for
`Faretta hearings, Torres v. United States, 140 F.3d 392, 401 (2d
`
`1 Formal hearings are not always necessary. We have affirmed find-
`ings that a defendant constructively waived the right to counsel where the
`record showed clearly that the defendant knowingly and intelligently
`waived the right and understood the risks of going it alone. E.g., Balsiger,
`910 F.3d at 953–54.
`
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`Nos. 19-3476, et al.
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`11
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`Cir. 1998), and why we generally review district court’s Faretta
`hearings deferentially. E.g., United States v. Hill, 252 F.3d 919,
`928 (7th Cir. 2001) (“Often asking the Benchbook questions may
`ensure that the defendant has his eyes open, but we do not
`read any of this court’s decisions to hold that the litany is pre-
`scribed in every case or that advice about any particular dis-
`advantage of self-representation is essential; such a reading
`would put us at odds with the Supreme Court.”). The key is
`that the accused must make the final choice, but only once he
`understands his alternatives.
`Nonetheless, as a matter of prudence if not constitutional
`law, district judges should discourage all or nearly all defend-
`ants from exercising their rights under Faretta. E.g., Johnson,
`980 F.3d at 578 (commending judge for having “strongly ad-
`vised Johnson against proceeding pro se”); United States v.
`Mancillas, 880 F.3d 297, 302 (7th Cir. 2018) (“courts ‘should …
`advise the defendant that proceeding pro se is unwise.’”),
`quoting United States v. Todd, 424 F.3d 525, 531 (7th Cir. 2005);
`cf. Kubsch v. Neal, 800 F.3d 783, 812–16 (7th Cir. 2015) (affirm-
`ing denial of habeas relief where petitioner argued that trial
`judge did not try hard enough to discourage him from repre-
`senting himself in capital sentencing phase; defendant made
`competent strategic decision not to present evidence to miti-
`gate three brutal murders, but to emphasize residual doubt
`about guilt), vacated on other grounds, 838 F.3d 845 (7th Cir.
`2016) (en banc). The waiver of counsel must also be “unequiv-
`ocal.” That means that district courts must press difficult, hes-
`itant, or ambivalent defendants to answer yes or no whether
`they wish to waive the right to counsel. See United States v.
`Campbell, 659 F.3d 607, 612 (7th Cir. 2011) (discussing im-
`portance of unequivocal demand and rationale for require-
`ment), vacated on other grounds, 568 U.S. 802 (2012).
`
`
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`12
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`Nos. 19-3476, et al.
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`Turning to the facts here, seven days after the mistrial was
`declared in the Indianapolis trial, Grundy moved to represent
`himself. The district court held a Faretta hearing five days
`later. The court began by asking Grundy about his age, edu-
`cation, drug-use history, and general ability to read and un-
`derstand evidence. The court informed Grundy of the charges
`against him and the long prison terms that could be manda-
`tory if he were convicted. See Johnson, 980 F.3d at 577 (endors-
`ing such advisements in Faretta hearing).
`The bulk of the hearing was devoted to Grundy’s request
`that his current attorney, Kenneth Riggins, be appointed
`standby counsel and to the data security problems posed by
`having a detained defendant with a track record of disregard-
`ing court orders seek unlimited access to confidential discov-
`ery within the jail. After discussing these issues for almost an
`hour, the court noted that if Grundy were to invoke unambig-
`uously and unconditionally his right to proceed pro se, it
`would appoint attorney Riggins to have a limited role as
`standby counsel. The court also said it would likely require
`that Riggins retain physical possession of the most sensitive
`documents, though Grundy could review those documents
`with Riggins during jail visits.
`The court finally asked Grundy for a yes-or-no answer.
`Grundy replied, “I guess I can’t represent myself.” He ex-
`plained that it was a hard choice because he did not know
`how the district court would rule on future motions, includ-
`ing those pertaining to data security, whether the court might
`allow him to re-invoke his right to counsel, and how it would
`rule on a variety of late motions in limine he had contem-
`plated filing.
`
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`Nos. 19-3476, et al.
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`13
`
`On appeal, Grundy makes two distinct arguments. First,
`he says that the court was too persuasive during the Faretta
`hearing. Second, he says that the court should not have en-
`dorsed the government’s suggestion that his access to confi-
`dential documents should be limited.
`1. Too Persuasive?
`We have suggested on occasion that a too-persuasive
`Faretta colloquy could burden the right. Kubsch, 800 F.3d at
`812 (“If a judge believes, as the trial judge did here, that the
`defendant is making a knowing and intelligent waiver, then
`she would commit constitutional error by discouraging that
`decision too strongly.”); Oreye, 263 F.3d at 672 (Faretta “right
`is not honored if judges must depict self-representation in
`such unremittingly scary terms that any reasonable person
`would refuse.”), quoting Hill, 252 F.3d at 928–29; United States
`v. Sandles, 23 F.3d 1121, 1127 (7th Cir. 1994) (a too-persuasive
`colloquy risks “trammeling the defendant’s constitutional
`right to present his own defense”). But Grundy does not cite,
`and we have not found, a case in which we have actually re-
`versed a district court for dwelling on the “perils of self-rep-
`resentation … in truly loving detail.” Oreye, 263 F.3d at 672.
`Instead, we “have tried to keep the permissible middle
`ground between these opposing errors fairly broad, allowing
`trial judges reasonable leeway to adapt the inquiry to the cir-
`cumstances of the case without requiring a script or check-
`list.” Kubsch, 800 F.3d at 813.
`Grundy’s hearing was dominated by prolonged discus-
`sions regarding his request to have his current attorney ap-
`pointed as standby counsel. The district court responded that
`defendants who proceed pro se must represent themselves,
`and they cannot be co-counsel with their standby lawyers.
`
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`Nos. 19-3476, et al.
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`Grundy explained that he did not want attorney Riggins to be
`co-counsel, but “just need[ed] him to be there to, like, help []
`with the litigating parts and stuff like that.” The district court
`explained that that is not the job of standby counsel and, in
`any event, a criminal defendant has no right to standby coun-
`sel. See United States v. Harrington, 814 F.3d 896, 901 (7th Cir.
`2016) (collecting cases; “a court has no obligation” to appoint
`standby counsel).
`The district court underscored that if Grundy were to pro-
`ceed pro se, he would be truly on his own. Grundy later ex-
`plained that he viewed standby counsel as “training
`wheels”—someone who could help him organize his
`thoughts, sort through the evidence, and consult throughout
`the trial. To that end, he also wanted to have access to Riggins’
`computer at the counsel table during trial so that he and Rig-
`gins could quickly scroll through the electronic evidence.
`Grundy’s concerns were greater than the computer, though,
`as he wanted “to be able to, to see what is about to happen
`before it happens.”
`The court reiterated that it was concerned that Grundy en-
`visioned an expansive role for Riggins. The court announced
`that it would appoint Riggins as standby counsel but would
`not tolerate hybrid representation (that is, the two working
`together as co-counsel). The court again explained that trial
`advocacy “is a highly technical involved area of education,
`training, and understanding. I am not saying that to intimi-
`date you. I am required by law to tell you that it is a hard thing
`to do, but it is your absolute right to do it, and if that is what
`you want to do, you have the right to do it.” The court then
`read from the Federal Judicial Center’s Benchbook, which con-
`tains a suggested script for Faretta hearings, strongly urging
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`Nos. 19-3476, et al.
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`15
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`Grundy not to try to represent himself. Grundy asked
`whether he could reverse course during trial. The court re-
`fused to deal with hypotheticals because it needed a “firm de-
`cision.” Grundy balked at the phrase, “I am giving up my
`right” because he was concerned about the possibility that he
`could not re-invoke his right to counsel.
`The district court’s repeated questioning on Grundy’s un-
`derstanding of standby counsel did not run afoul of Faretta.
`We have explained that hybrid representation “is generally to
`be avoided,” Carlson v. CSX Transportation, Inc., 758 F.3d 819,
`826 (7th Cir. 2014), citing United States v. Chavin, 316 F.3d 666,
`671–72 (7th Cir. 2002), if not outright “forbidden.” Oreye, 263
`F.3d at 672. As noted, before the district court could accept
`Grundy’s waiver, it had to establish a record “that he knows
`what he is doing and his choice is made with eyes open.”
`Faretta, 422 U.S. at 835 (quotation marks and citation omitted).
`As the foregoing summary illustrates, when Grundy at first
`said he wanted to waive his right to counsel, it was not clear
`whether he understood the consequences or understood that
`standby counsel is not co-counsel and that once he waived his
`Sixth Amendment right, he had no guarantee that the court
`would reappoint counsel if he later changed his mind.
`We see no error in the district court’s explanation of the
`limits of standby counsel, especially in the face of Grundy’s
`repeated ambiguous answers as to what he wanted from his
`attorney. Faretta hearings “may require a give and take be-
`tween the accused and someone trying to educate him about
`counsel’s benefits.” Jean-Paul v. Douma, 809 F.3d 354, 359 (7th
`Cir. 2015) (quotation marks and citation omitted). Here,
`Grundy repeatedly said that he wanted to have it both ways
`in trial and to be allowed to change his mind. That’s a recipe
`
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`16
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`Nos. 19-3476, et al.
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`for trouble, and Judge Magnus-Stinson correctly acted to ex-
`plain that hybrid representation was not possible and that she
`could not guarantee Grundy that he could change his mind
`later.
`In a variation on this challenge, Grundy argues that the
`district court should have stopped the hearing about halfway
`through because he invoked his Faretta right clearly at that
`point. He contends that any further discussion burdened his
`right. But his argument both misreads the record and misun-
`derstands Faretta and the purpose of the hearing. Grundy
`points to the following exchange after a fifteen-minute recess
`to discuss his options with his attorney:
`The Court: So you have had about 15, 20
`minutes to talk to Mr. Riggins. I, before we—do
`you still want to proceed with the hearing on
`your motion to represent yourself?
`Grundy: Yes. I wanted to ask. I kind of got to the
`bottom of what I needed to know if I am going
`to represent myself or not.
`Grundy asserts that this was an unequivocal invocation of his
`right to self-representation and that the hearing should have
`stopped then.
`We disagree for two reasons. First, based on the transcript,
`this simply was not a clear invocation of his Faretta right. Ra-
`ther, Grundy said only that he wanted to continue the conver-
`sation. See United States v. Miles, 572 F.3d 832, 836–37 (10th
`Cir. 2009) (affirming district court’s interpretation of ambigu-
`ous statements as not expressing desire to proceed pro se).
`Second, and more fundamental, even a clear attempt to in-
`voke Faretta is only the beginning of the matter, not the end.
`
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`Nos. 19-3476, et al.
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`17
`
`The court was required to ensure that any waiver by Grundy
`of his right to counsel would have been knowing and intelli-
`gent. The court was not yet satisfied that it had established a
`record that Grundy understood that he would in fact be on
`his own and without Riggins’ formal assistance. See United
`States v. Campbell, 659 F.3d 607, 612 (7th Cir. 2011) (where de-
`fendant clearly invokes right to proceed pro se, next step is
`for district court to engage in colloquy to address that re-
`quest).
`Faretta is not a Miranda-like right, where custodial interro-
`gation must cease once a suspect says he wants a lawyer. See,
`e.g., United States v. Wysinger, 683 F.3d 784, 796 (7th Cir. 2012)
`(applying Miranda). When a defendant clearly and unambig-
`uously invokes his Faretta right to proceed pro se, the district
`court is not required to take the statement at face value and as
`final. To the contrary, the district court must refuse to accept a
`supposed waiver until the record shows that the waiver is
`knowing and intelligent. Because Grundy remained ambiva-
`lent and tried to invoke his Faretta right conditionally, the
`court did not burden his right by asking further questions.
`2. Access to Evidence
`Grundy’s second argument hinges on issues related to
`trial and witness security. He contends that the district court
`erred by asking the government for any input during the
`hearing and that the court’s suggested conditions for data se-
`curity burdened his constitutional rights. He points to the dis-
`trict court’s suggestions that it would forbid him from taking
`possession of sensitive discovery materials (such as still-con-
`fidential witness statements), though he could review any
`and all documents with attorney Riggins, and that it might
`not allow Grundy to use Riggins’ computer during the trial
`
`
`
`18
`
`Nos. 19-3476, et al.
`
`itself. As we understand Grundy’s argument on appeal, he
`says these conditions would have been unconstitutional if
`they had been imposed, so invoking them as a threat to coerce
`him into staying with his attorney violated Faretta.2
`The district court correctly focused on the serious security
`concerns posed by Grundy’s prosecution. The right to repre-
`sent oneself “is not unlimited,” and “[s]ecurity considerations
`… may require special adjustments.” Milton v. Morris, 767
`F.2d 1443, 1446 (9th Cir. 1985), citing United States v. Chatman,
`584 F.2d 1358, 1360 (4th Cir. 1978) (no constitutional violation
`where defendant’s access to legal resources was restricted af-
`ter being moved into “segregated confinement”); see also
`United States v. Galloway, 749 F.3d 238, 242 (4th Cir. 2014) (no
`constitutional violation where district court’s discovery or-
`ders inconvenienced pro se defendant because they were “jus-
`tified by the circumstances,” that is, “enormous security is-
`sues”); United States v. Sarno, 73 F.3d 1470, 1491–92 (9th Cir.
`1995) (“The right of access is not unlimited, but must be bal-
`anced against the legitimate security needs or resource con-
`straints of the prison;” no constitutional violation where gov-
`ernment allowed defendant to review discovery to determine
`which documents should be copied
`for his pretrial
`
`2 Circuits have reached different answers about the extent to which a
`pro se defendant in custody has a constitutional right to government as-
`sistance in his defense, and about where to find such a right in the Consti-
`tution. See Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005) (per curiam) (noting
`split and reversing grant of habeas relief because state-court determina-
`tion that pro se defendant was not entitled to law library access was not
`contrary to clearly established federal law: “Faretta says nothing about any
`specific legal aid that the State owes a pro se criminal defendant.”). We
`need not deepen the split here because Grundy’s claim fails for reasons
`explained in the text.
`
`
`
`Nos. 19-3476, et al.
`
`19
`
`preparation—but gave him only 20 hours to inspect 250,000
`pages of material); United States v. Bisong, 645 F.3d 384, 396
`(D.C. Cir. 2011) (quoting same and expressing skepticism that
`pro se defendants have any Sixth Amendment right to discov-
`ery in preparing their defense).
`Recall the context of this hearing. The district court, al-
`ready alert to the grave security concerns in the case, had
`taken the unusual step of empaneling an anonymous jury
`based on concerns about juror intimidation. The first trial
`ended in a mistrial, in part because Grundy himself obtained
`confidential juror questionnaires. The transcript of the Faretta
`hearing also indicates that he was placed in solitary confine-
`ment as a result of the conduct that led to the mistrial.3
`Given this backdrop, Grundy posed obvious and legiti-
`mate security concerns, even with counsel. If he were to rep-
`resent himself, the district court had to consider further po-
`tential problems. Judge Magnus-Stinson’s discussion of po-
`tential solutions was important and responsible. A core part
`of the district judge’s job is to protect jurors, witnesses, and
`the integrity of ju
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