explaining that the question “is not the quality of the trial judge’s inquiry” but the validity of the waiver and therefore the court will not reverse “if the record as a whole demonstrates the defendant knowingly and voluntarily waived his right to counsel”
How later courts described this case
- explaining that the question “is not the quality of the trial judge’s inquiry” but the validity of the waiver and therefore the court will not reverse “if the record as a whole demonstrates the defendant knowingly and voluntarily waived his right to counsel”
- holding that the right to privacy is not surrendered by answering the door in response to a knock and recognizing that the right to close the door to one’s dwelling and exclude people from entering is one of the most important elements of personal privacy
- holding that the Seventh Circuit has “made clear that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived (even where those arguments raise constitutional issues)”
- finding that “[w]e have repeatedly made clear that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived (even where those arguments raise constitutional issues).”
Written by the judges who cited it.
The opinion
COFFEY, Circuit Judge,
concurring in part and dissenting in part.
I. Waiver of Counsel
Based on the record as a whole, I believe that the defendant made a knowing and intelligent waiver of counsel. In addition, I concur with that part of the majority opinion holding that Berkowitz has waived any waiver of counsel issue in light of the fact that he chose not to properly raise the issue before this court. This court has previously stated that “[a]n issue expressly presented for resolution is waived if not developed by argument.” Anderson v. Gutschenritter, 836 F.2d 346, 349 (7th Cir.1988) (citing Hunter v. Allis Chalmers, 797 F.2d 1417, 1430 (7th Cir.1986)). The dissent’s statement that “[t]he panel’s ‘one-sentence’ characterization is, in my view, inaccurate” is itself inaccurate. Berkow-itz’s treatment of the waiver of counsel issue in his opening brief consists of only the following:
“In doing so the district court did nothing to admonish Berkowitz about the benefits of having trained legal counsel and advising him of the sixth amendment rights he had by being defended by counsel. The combination of Mr. Huyck’s failure to inspect all the documents and the court’s lack of admonition concerning attempting to try the case himself deprived Berkowitz of his right to effective assistance of counsel.”
With the exception of this cursory treatment of the issue in his opening brief, Berkowitz has chosen to ignore the issue entirely. “[A]n appellant is required by Rule 28(a)(4) of the Federal Rules of Appellate Procedure to present in his brief to the appellate court the issues that he desires to litigate and to support his argument on those issues with judicial authority.” United States v. Brown, 899 F.2d 677 n. 1 (7th Cir.1990) (citing Zelazny v. Lyng, 853 F.2d 540 , 542 n. 1 (7th Cir.1988)). Berkow-itz failed to address the waiver of counsel issue in his reply brief and at oral argument in spite of the government’s thorough analysis of the issue in its response brief. Therefore, I am of the opinion that Ber-kowitz has waived this issue. (I would assume that Berkowitz’s failure to address the issue in the face of the government’s thorough analysis suggests that Berkowitz himself believes the argument is without merit.)
Instead, the dissent developed the two-sentence statement into an argument on Berkowitz’s behalf, and cast aspersions on the seasoned trial judge and two of his fellow appellate judges assigned to the panel. If the dissent really believes the waiver of counsel issue has merit and wishes to argue on behalf of Berkowitz, it should acknowledge that Berkowitz did not properly raise the issue. As an experienced former trial judge, I disagree with the dissent and write separately to underscore my belief that the defendant made a knowing and intelligent waiver of his right to counsel.
Our review of the question of whether a defendant’s decision to proceed pro se was made knowingly and intelligently depends not only on the inquiry made by the district court, but also the totality of the circumstances:
“Although we stress the need for a thorough and formal inquiry as a matter of prudence and as a means of deterring unfounded claims on appeal, we shall not reverse a district court where the record as a whole demonstrates the defendant knowingly and intelligently waived his right to counsel. See Mitchell, 788 F.2d at 1235. ‘A 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 background, experience, and conduct of the accused.’ Johnson [v. Zerbst ], 304 U.S. [458] at *1393 464, 58 S.Ct. [1019] at 1023 [ 82 L.Ed. 1461 (1938)].”
United States v. Moya-Gomez, 860 F.2d 706, 733 (7th Cir.1988) (citations omitted) (emphasis added). The author of Moya-Gomez is now dissenting on this very same issue in the case before us, and in the process, the dissent engages in an unwarranted attack on his fellow appellate judges, accusing his brethren of failing to apply precedent “in a straightforward, principled manner” hoping thereby “that the reader will be seduced into accepting the whole as greater than the sum of its parts.” What makes the dissent’s harsh and unfounded criticism all the more difficult to understand is the fact that his argument on behalf of Berkowitz is without merit. It is beyond comprehension to understand why the dissent chooses to carry a feeble case for waiver of counsel to such great lengths, when in Moya-Gomez he authored the opinion upholding the waiver of counsel on facts that are troublesome and less convincing than the facts in the case before us.
In United States v. Moya-Gomez, supra, the defendant was accused of heading an extensive cocaine network and proceeded pro se without standby counsel after the district court placed a $40,000 cap on attorneys’ fees that would not be subject to forfeiture under the continuing criminal enterprise statute. 21 U.S.C. § 853 (c). The defendant chose to proceed without an attorney despite the fact that he faced life imprisonment if he was convicted on all counts. Moreover, the defendant was unable to understand English and required the services of an interpreter during the proceedings. After a month-long trial, the defendant was found guilty and sentenced to 70 years imprisonment.
On appeal, this court (with the dissent in the case before us authoring the opinion of the court) determined that the defendant’s waiver of counsel was valid, despite “the limited scope of [the district court’s] inquiry.” Id. at 736 . The court found that several factors “weighfed] on the side of finding waiver.” Id. First, the court cited the factor that the record established that the defendant understood the dangers and disadvantages of self-representation, citing an October 27, 1986, hearing in which Mr. Cagney, the attorney whom the defendant initially wanted to represent him, stated that he “tried to explain” to the defendant some of the pitfalls to self-representation. However, the court overlooked the significance of the following exchange between the district court and the defendant at the October 27, 1986, hearing:
“The Court: Is that what you still want to do here, [represent yourself]?
The Interpreter (For the Defendant): It is my great desire that Mr. Cagney would represent me. But if your decision is no, then I will proceed on my own. I asked him if he still wants to reinforce the decision to represent himself and he says I really don’t know at this point. There’s confusion, he says, in my head.”
Id. at 733 (emphasis added). Thus, based upon the record, it is far from clear that the defendant understood the dangers and disadvantages of self-representation, given his “confusion” at the time. Moreover, the defendant claimed on appeal that he was unable to understand the court-appointed interpreter.
A second factor the court relied on in finding a valid waiver of counsel was “the background and experience of the defendant.” Id. at 736 . The court cited the record as indicating that the defendant had a prior felony conviction as well as “numerous contacts with the law in connection with related offenses.” Id. Thus, the court determined that the defendant was “no stranger to the criminal justice system.” Id. However, it did so while explicitly acknowledging that “the district court did not specifically question [the defendant] about his background.” Id.
The final factor the court relied on in determining that the defendant made a valid waiver of counsel was “the context of the defendant’s decision to proceed pro se.” Id. at 736 . The court found that the defendant’s decision was in response to the district court’s resolution of the attorneys’ fees question and thus a “tactical one.” *1394 Id. However, there is evidence in the record that the defendant's decision to proceed pro se was made because he was under the misapprehension that he had to do this to preserve the forfeiture issue relating to attorneys’ fees for appeal. The court stated:
“If [the defendant] was under this misapprehension, then clearly his waiver of counsel was not made knowingly and intelligently. We note that Mr. Cagney’s statements may be interpreted as manifesting a belief that proceeding pro se was necessary to preserve the issue. However, these statements also simply may manifest the litigation tactic to bolster [Mr. Cagney’s] argument on the forfeiture question. In any event, we must consider the possibility that Mr. Cagney misled [the defendant] about his rights in order to force a decision by either the district court or this court on the forfeiture question.” Id. at 737 (citations omitted).
Nevertheless, the court found and the court of appeals approved that the defendant, who could neither speak nor understand the English language, was not “confused about his rights.” Id. at 738 .
Unlike the record in Moya-Gomez , the record in our case presents a very strong argument for a valid waiver of counsel. “The majority of courts that have considered the issue have agreed that the ultimate question is not what was said or not said to the defendant but rather whether he in fact made a knowing and informed waiver of counsel." Moya-Gomez at 733 (citations omitted). While I agree that the district court in our case did not conduct an inquiry as in-depth as it should and might have regarding the issue of whether Ber-kowitz’s decision to proceed pro se was intelligently and knowingly made, nonetheless, the record as a whole clearly demonstrates that Berkowitz, as a college graduate with master’s training and an intelligent pro se litigator well versed in the English language, clearly understood the potential problems associated with self-representation. Thus, based on the “background, experience, and conduct” of Ber-kowitz, I am convinced that he made a knowing and informed waiver of counsel. Moya-Gomez , at 733.
As an example, the initial exchange at trial between Berkowitz and the trial judge regarding his decision to proceed pro se reveals that Berkowitz understood the difference between self-representation and having standby counsel:
“Mr. Huyck (Standby Counsel): Mr. Berkowitz has a request he would like to make, Judge.
Mr. Berkowitz: Your Honor, I would like henceforth to represent myself but retain counsel.
The Court: Well, you have an absolute constitutional right to represent yourself pro se, obviously. Do I understand that you are insisting on your constitutional right to represent yourself?
Mr. Berkowitz: I would like to make a distinction between the right to be represented by counsel and the right to have counsel. I would like to represent myself, and in that regard I waive the right to be represented by counsel, but I do not waive the right to have counsel.
The Court: To have standby counsel, is that correct?
Mr. Berkowitz: Yes.
The Court: Does the government have an objection?
Mr. Helwig (Asst. U.S. Attorney): Mr. Huyck would like to be standby counsel?
The Court: Apparently. Would he be making the opening statements?
Mr. Berkowitz.- Yes.
The Court: And the closing statements?
Mr. Berkowitz: Yes.
Mr. Helwig: The only problem is when he is going to testify, we will have an opportunity at cross-examination, obviously?
The Court: Obviously.
Mr. Helwig: He would be testifying through his examination of witnesses?
The Court: You are not going to say something in your opening statement or your closing statement that you *1395 don’t intend to prove through credible evidence, is that correct?
Mr. Berkowitz: That’s correct.
The Court: Fine, by all means. And I find, based on the little I know about your background, that if any pro se defendant is competent to represent himself, it is you, Mr. Berkowitz, and I have no problem with it at all, provided that, as you request, Mr. Huyck stand by as standby counsel. Very well. Mr. Berkowitz: Thank you.”
(Emphasis added).
On the second day of the trial, the trial judge again addressed Berkowitz’s decision to proceed pro se:
“The Court: Have you, Mr. Berkowitz— here again, perhaps this is another good time to say it: While you do have the constitutional right, absolute constitutional right, to represent yourself, the old saying is—
Mr. Berkowitz: I have heard it, your Honor.
The Court: —If a lawyer represents himself or herself, that lawyer has a fool for a client.
Mr. Berkowitz: But I’ve only heard it applied to lawyers, your Honor.
The Court: O.K., and again, I reiterate, I think—
Mr. Berkowitz: I have been consulting with counsel, though, as to the correct method of cross-examination. The Court: Obviously I see you are making an attempt. Do you understand that the distinction between arguing to the jury that so and so and testimony under oath? (sic)
Mr. Berkowitz: Yes, your Honor.
The Court: Do you understand that? You will try to work within those structures, will you?
Mr. Berkowitz: Absolutely.” 1
(Emphasis added.)
Both of these dialogues between Berkow-itz and the district court clearly demonstrate that Berkowitz possessed a clear understanding of the ramifications relating to his decision to proceed pro se, and that he weighed the pros and cons before making his final determination. His statement that he wanted to “waive the right to be represented by counsel but ... not waive the right to have counsel” demonstrates that Berkowitz clearly understood and wished to make use of the distinction between self-representation and having standby counsel. Also, Berkowitz stated that he was prepared to work within the “structures” set out by the court regarding the rules of evidence.
A review of the Berkowitz’s trial conduct and questioning demonstrates most convincingly that he orchestrated and conducted his defense capably. Berkowitz made an opening statement, cross-examined government witnesses, called and examined defense witnesses and made his own closing argument. He also made a number of evidentiary objections, several of which were sustained. In my opinion, Berkow-itz’s trial performance would have been upheld under a Strickland analysis had he been a licensed practitioner of the bar representing a defendant in a similar case.
However, the dissent states:
“[T]he defendant’s actual performance at trial raises great questions about whether he appreciated the magnitude of the task he had taken on. During the course *1396 of his direct and cross-examination (assisted by standby counsel), the defendant admitted that he took documents from the United States Attorney’s Office without permission and retained some of them for a significant period of time. Thus, he established, as a practical matter, his own guilt for the government.”
Yes, Berkowitz did do this, but I believe it is more accurate that we point out that the strategy of his defense was that even though he admitted taking the documents, the jury should not consider this an act of theft because he lacked the requisite intent to permanently deprive the government of possession in that he believed some of the documents were his and he only wished to make copies of others. Berkowitz during his opening statement stated:
“Now, there is a difference between stealing and taking. Some of those things — some of those documents were originally in my possession and, I maintain, belong to me. Some of those things perhaps I was entitled to. And some of those documents, which are originals, the government will try to show that I took from the U.S. Attorney’s office. And that part is true; I did take them out of the U.S. Attorney’s office. In order for an act like that, however, to be considered theft, the government must demonstrate that it was my intention to permanently deprive it of the use of those documents. In order for me to prove that it was not theft, I have to demonstrate to you that it was my intention not to deprive the government of their use but rather to make sure that they were used.... Why did I take them? Well, I took some of them because I wasn’t able to copy them in the U.S. Attorney’s office, and it is true that I made numerous copies of documents in the U.S. Attorney’s office which the government would much rather I would not have copied or even known about.”
It is clear that Berkowitz’s trial strategy was to prove that he lacked the requisite intent to permanently deprive the government of the documents. Indeed, this was not a defense that Berkowitz pulled out of the air on the eve before his trial. At a December 22, 1988, hearing before the district court, almost two weeks before his opening statement, Berkowitz stated that “he intend[ed] to offer an extensive and comprehensive defense which goes to the heart of the issue which is the intent that is involved with these charges.” This defense and his admission of taking the items from the government’s possession was clearly a tactical decision as Berkowitz intended and explained. Berkowitz clearly knew what he was doing: he was caught taking documents from the government and he was not about to sit idly by while the prosecution piled up document after document he obviously purloined from their offices and files. His trial strategy, perhaps the only plausible one, was to personally try to convince the jury that he was just intent on making copies of the documents for his defense, that he had no intent to deprive the government of the documents, that he intended to return everything, that he believed the documents were his, etc. Unfortunately for Berkow-itz, his theory of defense was not accepted by the jury. However, for the dissent to state that Berkowitz “established, as a practical matter, his own guilt for the government” as an explanation and/or justification for its holding that Berkowitz did not understand the proceedings is inaccurate (as fully explained above), as a defense of this nature was the only plausible one available to him.
In addition we must not forget that Ber-kowitz like the defendant in Moya-Gomez was not a first-time guest of the criminal justice system: he was convicted in 1970 of uttering a forged instrument. Furthermore, Berkowitz had on a previous occasion represented himself in a civil action in which he conducted pretrial discovery. Also, like the defendant in Moya-Gomez , Berkowitz had numerous contacts with the criminal justice system in connection with related offenses: he actively participated in the discovery process of the tax fraud case.
Unlike the defendant in Moya-Gomez , whom the dissent in this case found made a knowing and intelligent waiver of counsel despite the district court’s failure to con *1397 duct an adequate inquiry on the issue, Ber-kowitz had the uninterrupted and undivided assistance of standby counsel present in the courtroom at all times and was able to conduct his defense quite capably (without the aid of an interpreter). 2 In fact, Ber-kowitz and his standby counsel drafted and signed numerous motions on Berkowitz’s behalf, including post-trial motions for a judgment of acquittal and for a new trial. The defendant in Moya-Gomez neither received help nor advice during trial from an attorney. Moya-Gomez at 738 . Also, the defendant in Moya-Gomez represented himself without standby counsel in a complex one-month drug conspiracy trial; in contrast, Berkowitz’s trial with standby counsel lasted a mere five days. Moreover, unlike the defendant in Moya-Gomez who received 70 years imprisonment for his offenses, Berkowitz was sentenced to only 63 months imprisonment. If the dissent found the defendant’s waiver in Moya-Go-mez to be knowingly and intelligently made, certainly the record in this case makes for an even more compelling argument for a valid waiver of counsel.
Finally, this is not a case in which a defendant of average or below average intellect bit off more than he could chew. Berkowitz’s decision to proceed pro se was made by an intelligent and well educated individual. Berkowitz graduated from the University of California at Berkeley and had completed two quarters of advanced studies toward his master’s in business administration. In addition, he furthered his educational pursuits through his attendance at Ner Israel Rabbinical College, located in Baltimore, Maryland.
“[T]he trial judge bears the ‘serious and weighty responsibility ... of determining whether there is an intelligent and competent waiver by the accused.’ ” Moya-Gomez at 735 , quoting Johnson v. Zerbst, 304 U.S. 458, 465 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). While the district court in our case did not conduct an inquiry as in-depth as it should have, the record as a whole demonstrates throughout trial that Ber-kowitz’s waiver was both knowing and intelligent. Furthermore, the explicit finding made by the trial judge that Berkowitz was competent to represent himself should be given the same kind of deference that this court gave the trial judge in Moya-Gomez : “This explicit finding by the district court, which had the opportunity to assess by its sustained observation the demeanor of the participants, is entitled to our deference.” Moya-Gomez at 739 . I wish to emphasize that I do not believe that there are any particular buzz words that a trial judge need recite in order to ensure that a defendant makes a knowing and intelligent waiver of counsel. Instead, I agree with the majority opinion which states that “[t]he real question when a criminal defendant waives counsel is not the quality of the trial judge’s inquiry; rather, it is whether the defendant knowingly and voluntarily waived his right to counsel.”
I believe the record as a whole, as well as the “background, experience, and conduct” of Berkowitz, demonstrates that he made a knowing and intelligent waiver of his right to counsel. Moya-Gomez , at 733. Thus, I concur with the majority opinion in this aspect.
II. Validity of Arrest
I respectfully dissent from that portion of the majority opinion that would remand the case to the district court for an eviden-tiary hearing to determine where the officers were positioned when the arrest was made.
I agree with the majority and note that “the fourth amendment protects people’s legitimate expectations of privacy.” How *1398 ever, the fourth amendment should not be construed to provide protection to a defendant like Berkowitz, who upon opening the door of his home was immediately advised that he was under arrest and made no objection nor did he in any way resist or forestall the police officers’ entry inside the doorway. In fact, he invited both officers into his home after being told that he would need an escort after the arrest when he requested an opportunity to enter into his house to get his wallet and keys. 3
The Supreme Court in United States v. Watson, 423 U.S. 411 , 96 S.Ct. 820 , 46 L.Ed.2d 598 (1976), held that a warrantless arrest of an individual in a public place upon probable cause does not violate the fourth amendment. Shortly thereafter, the Supreme Court held that a warrantless arrest at the door of an individual’s home, likewise, does not violate the fourth amendment because there is no protectable expectation of privacy in an open doorway. United States v. Santana, 427 U.S. 38 , 96 S.Ct. 2406 , 49 L.Ed.2d 300 (1976). Even though the defendant in Santana was standing in the doorway of her home when the officers arrived, the Court stated that “[s]he was not in an area where she had an expectation of privacy.” Id. at 42 , 96 S.Ct. at 2409. The Supreme Court reasoned:
“What a person knowingly exposes to the public, even in his own house or office, is not a subject of fourth amendment protection.... She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.... Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in Watson.”
Santana at 42 , 96 S.Ct. at 2409 (citations omitted).
This court has upheld the validity of a doorstep arrest. McKinney v. George, 726 F.2d 1183, 1188 (7th Cir.1984). In McKinney , the defendant was arrested upon probable cause without a warrant when he opened his door in response to the officers’ knock. The court noted that if the defendant had refused to surrender himself to the officers and the officers had gone inside the defendant’s house and seized him, “we might have a different case.” McKinney at 1188 . Other courts that have ruled on the constitutionality of doorstep arrests have found no fourth amendment violation. See United States v. Mason, 661 F.2d 45 (5th Cir.1981); United States v. Botero, 589 F.2d 430 (9th Cir.1978), cert. denied, 441 U.S. 944 , 99 S.Ct. 2162 , 60 L.Ed.2d 1045 (1979); United States v. McCool, 526 F.Supp. 1206 (M.D.Tenn.1981); People v. Morgan, 113 Ill.App.3d 543 , 69 Ill.Dec. 590 , 447 N.E.2d 1025 (1983).
However, the majority opinion mistakenly applies the rationale of Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980), to the facts of this case instead of applying Santana and its progeny. The officers in Payton went to the defendant's house to arrest him, and in response to the officers' knock on the door, the defendant’s young son opened the door, allowing the officers to see the defendant sitting in bed. The officers then entered into the defendant’s house and arrested him, and the man’s home was no longer his castle. The Supreme Court held that the arrest was unconstitutional because the fourth amendment prohibits entry into an individual’s home to make an arrest without a warrant absent exigent circumstances. Payton at 590 , 100 S.Ct. at 1382 . Thus, Payton is not applicable to this ease because the officers did not enter into Ber-kowitz’s house to make the arrest. Rather, the arrest occurred outside the house in the doorway; and under Santana a doorway is considered a public place. Unlike the defendant in Payton (where the door was answered by a young child incapable of giving consent), Berkowitz himself answered the door. Furthermore, Berkowitz does not allege that the IRS agents misrepresented themselves or that they were guilty of using either force or deception to compel him to open the door and submit to the arrest. Instead, Berkowitz’s action in *1399 opening the door was completely voluntary. See United States v. Morgan, 743 F.2d 1158 (6th Cir.1984), cert. denied, 471 U.S. 1061 , 105 S.Ct. 2126 , 85 L.Ed.2d 490 (1985), where a sheriffs use of spotlights and a bullhorn in compelling the defendant to appear at his mother’s front door rendered the arrest invalid; see also United States v. Johnson, 626 F.2d 753 (9th Cir.1980), aff'd 457 U.S. 537 , 102 S.Ct. 2579 , 73 L.Ed.2d 202 (1982), where agents’ misrepresentations of their identities violated the defendant’s fourth amendment right because the misrepresentations induced the defendant to open the door. Upon opening the door, Berkowitz was immediately advised he was under arrest. At this time, Berkowitz could have objected or refused to surrender himself and shut the door, thereby retaining his fourth amendment privacy interest and forcing the agents to secure a search warrant. However, he chose not to do so. Instead, Berkowitz’s actions are tantamount to a voluntary arrest.
The majority’s concern with whether the arrest proceeded the police officers’ entry into the area immediately inside the doorway or whether the entry preceded the arrest needlessly obfuscates the fact that Berkowitz was arrested in his doorway, and under Santana, a warrantless arrest at the doorway of an individual’s home does not violate the fourth amendment. Therefore, even if I were to believe Ber-kowitz’s account of the incident, which I do not, 4 the arrest would still be a valid one under the fourth amendment. Accordingly, I respectfully dissent.
. This exchange reveals that Berkowitz interrupted the trial court as the court was attempting to inform Berkowitz of the dangers of self-representation. While the "trial judge need not give a hypothetical lecture on criminal law," he should at least be given a chance to address the defendant free of interruptions (no matter how witty and intelligent) on the ramifications of the defendant’s decision to proceed pro se. Moya-Gomez at 732 (citations omitted). One factor courts consider in determining whether there has been a valid waiver is whether the defendant was attempting to delay or manipulate the proceedings. "Evidence of manipulation or intentional delay implies a greater understanding of the proceedings and an understanding of the risks and complexities of a criminal trial.” Moya-Gomez at 737 , quoting McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir.) cert. denied, 474 U.S. 852 , 106 S.Ct. 152 , 88 L.Ed.2d 125 (1985). Given the intelligence and general knowledge and experience of the defendant, this interruption of the trial court might very well have been an attempt to preserve the waiver of counsel issue on appeal.
. The defendant in Moya-Gomez argued on appeal that his decision to represent himself was not a voluntary one because of the district court’s fee decision. This court stated that "[a] voluntary decision to waive counsel is not necessarily one that is entirely unconstrained.” Moya-Gomez at 739 . In finding that the defendant’s decision was voluntary, the court noted the fact that ’’[a] criminal defendant may be asked to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive.” Id. Unlike the defendant in Moya-Gomez , Berkow-itz received exactly what he wanted — pro se representation along with a standby counsel.
. Berkowitz does not challenge the fact that the officers had probable cause to arrest him.
. I have serious doubts as to Berkowitz’s credibility on this issue given that he has already admitted to stealing and destroying government evidence while fraud and mail fraud charges were pending against him. Moreover, Berkow-itz’s criminal history indicates a predisposition for being less than truthful (he was convicted in 1970 for uttering a forged instrument in Indiana). Finally, the district court at sentencing increased Berkowitz’s offense level by two because it found that "Berkowitz impeded the administration of justice by committing perjury at his trial.”