Date: Feb 12, 2026

Totality-of-the-Record Faretta Waiver: No Formal Hearing Required and Trial Nonparticipation Does Not Revoke Pro Se Status Absent Obstruction

1. Introduction

United States v. Eunice D. Salley (7th Cir. Feb. 10, 2026) addresses a recurring Sixth Amendment problem: when a defendant facing serious federal charges repeatedly rejects counsel—often to advance “sovereign citizen” theories—what must a district court do to ensure the waiver of counsel is valid, and when (if ever) must the court reverse course and force representation?

Eunice D. Salley was charged with mail fraud (18 U.S.C. § 1341), theft from an employee benefit plan (18 U.S.C. § 664), assisting false tax returns (26 U.S.C. § 7206(2)), and filing a false return (26 U.S.C. § 7206(1)). From the outset, she insisted on self-representation and advanced jurisdictional arguments “commonly associated with the sovereign citizen movement.” The district court appointed standby counsel but allowed Salley to proceed pro se after repeatedly warning her of the risks. Following conviction on all counts, Salley argued on appeal that the district court should not have allowed her to represent herself and should have appointed counsel.

The Seventh Circuit affirmed, holding that the record demonstrated a knowing and voluntary waiver of counsel and that the circumstances did not justify rescinding her pro se status.

2. Summary of the Opinion

The Seventh Circuit reviewed de novo whether Salley waived counsel, with underlying factual findings reviewed for clear error, citing United States v. Underwood, 88 F.4th 705 (7th Cir. 2023). It concluded that:

Salley’s waiver was knowing, intelligent, and voluntary under the totality of the record.
A formal Faretta hearing was not required because the district court repeatedly covered the necessary warnings and topics across many hearings.
Salley’s filings and conduct showed she understood her options, including the ability to seek counsel later.
Her sovereign-citizen-based approach supported the inference that self-representation was strategic, even if misguided.
Her refusal to participate at trial did not require the court to rescind her waiver; rescission is reserved for cases where the defendant obstructs proceedings.

3. Analysis

A. Precedents Cited

1) The constitutional baseline: the right to counsel and the right to self-representation

The opinion begins from the dual commands of the Sixth Amendment: the right “to have the Assistance of Counsel,” and—under Supreme Court authority—the right to reject counsel. It emphasizes the caution courts must exercise before finding waiver, quoting United States v. Sandles, 23 F.3d 1121 (7th Cir. 1994), while also underscoring that courts may not force counsel on an unwilling defendant under Faretta v. California, 422 U.S. 806 (1975).

The panel reiterates that a timely waiver by a competent defendant cannot be denied, citing United States v. Banks, 828 F.3d 609 (7th Cir. 2016). The “knowing and intelligent” inquiry is tied to the classic formulation in Johnson v. Zerbst, 304 U.S. 458 (1938), requiring attention to the defendant’s “background, experience, and conduct.”

2) The Seventh Circuit’s waiver framework and its anti-formalism

To operationalize Zerbst, the court applies the four-factor guide from United States v. Todd, 424 F.3d 525 (7th Cir. 2005), which itself draws on United States v. Avery, 208 F.3d 597 (7th Cir. 2000): (i) whether and to what extent there was a formal hearing; (ii) other evidence that the defendant understood the disadvantages; (iii) the defendant’s background and experience; and (iv) the context of the waiver.

Critically, the court highlights that these factors are not a checklist and that the key is the record as a whole, citing United States v. Egwaoje, 335 F.3d 579 (7th Cir. 2003). It reinforces this practical approach by quoting United States v. Hill, 252 F.3d 919 (7th Cir. 2001): the question is not whether the judge “used a check-off list” but whether the defendant “understood his options.”

The “razor’s edge” difficulty district courts face—protecting the right to counsel without denying Faretta rights—comes from United States v. Oreye, 263 F.3d 669 (7th Cir. 2001). And the opinion situates this case within modern Seventh Circuit doctrine cautioning against overly cursory or overly exacting colloquies, citing United States v. Stapleton, 56 F.4th 532 (7th Cir. 2022).

3) No formal Faretta hearing required when the record covers the essentials

Salley’s principal attack was procedural: no formal Faretta hearing. The court relied on United States v. Vizcarra-Millan, 15 F.4th 473 (7th Cir. 2021), and analogized to cases holding that repeated warnings and record development can substitute for a single formal hearing, including United States v. Cooper, 591 F.3d 582 (7th Cir. 2010), and United States v. Johnson, 534 F.3d 690 (7th Cir. 2008).

The court also invoked United States v. England, 507 F.3d 581 (7th Cir. 2007), for the proposition that a waiver is likely knowing and voluntary when made after repeatedly rejecting assistance of counsel.

4) Understanding shown by conduct, filings, and awareness of the ability to request counsel

The panel treated Salley’s litigation activity as evidence of comprehension, pointing to her multiple motions citing legal authorities. It also emphasized her demonstrated awareness of counsel as an option, invoking United States v. Balsiger, 910 F.3d 942 (7th Cir. 2018), because she once filed a financial affidavit to support attorney representation for a discrete purpose.

5) Rejecting counsel can equal choosing self-representation

When Salley sought to strike standby counsel and later suggested this signaled she no longer wished to proceed pro se, the court applied United States v. Oreye, 263 F.3d 669 (7th Cir. 2001), including its blunt formulation: “If you're given several options, and turn down all but one, you've selected the one you didn't turn down.” The case thus reinforces the principle that the Constitution guarantees counsel, not counsel of a defendant’s preferred type or on a defendant’s idiosyncratic terms, and that persistent rejection of available counsel can functionally cement a pro se posture when the defendant understands the consequence.

6) Background and experience are used to gauge appreciation, not legal competence

The opinion cites United States v. Volpentesta, 727 F.3d 666 (7th Cir. 2013), to clarify that the inquiry is not whether the defendant has legal training, but whether she appreciated the gravity of the waiver. Here, Salley’s age, education, prior experience with criminal proceedings, and sustained engagement with the court supported a finding that she understood what was at stake.

7) Context/strategy and sovereign-citizen litigation posture

The court treated strategic motives as supporting knowing waiver, relying on United States v. Harrington, 814 F.3d 896 (7th Cir. 2016). It also cited the Eleventh Circuit’s en banc decision, United States v. Garey, 540 F.3d 1253 (11th Cir. 2008), for the related idea that an indigent defendant may waive counsel by uncooperative conduct if made with knowledge of options and consequences.

Salley’s sovereign-citizen claims—especially her insistence that the court lacked jurisdiction over her person—helped explain why she wanted pro se control: no lawyer could ethically or plausibly present many of her theories. The panel further noted that even after some acknowledgement of jurisdiction, Salley continued pressing “baseless” assertions such as “presidential executive privilege” via a purported Recorder-of-Deeds declaration subrogating her to named officials.

8) Poor performance and nonparticipation are not enough; obstruction is the line

The court rejected the idea that her decision not to participate at trial required rescinding her waiver. It relied on United States v. Berry, 565 F.3d 385 (7th Cir. 2009) (citing Faretta), and reiterated from United States v. Banks, 828 F.3d 609 (7th Cir. 2016), that an unwise “sovereign-citizen” strategy is irrelevant to the validity of the choice.

Finally, it cited United States v. Jones, 65 F.4th 926 (7th Cir. 2023), for the limiting principle: district courts have “only allowed” rescission when a defendant “obstructs the proceedings, making it practically impossible to proceed.” Salley’s nonparticipation did not meet that standard.

B. Legal Reasoning

The court’s reasoning is best understood as a disciplined application of the Seventh Circuit’s “totality of the record” approach to Faretta waivers:

Repeated warnings can substitute for a single formal colloquy. The district court repeatedly told Salley she had a right to counsel, strongly urged her to accept counsel, explained concrete ways counsel could assist (discovery, rules, plea, trial), and warned she would be held to procedural and evidentiary rules if she proceeded pro se. Under Vizcarra-Millan, Cooper, and Johnson, that record development can establish a valid waiver.
Objective indicators of understanding matter. Salley’s filing of numerous motions citing legal authorities, her temporary attempt to use appointed counsel for a bond-related purpose, and her expressed desire to retain private counsel (even if not pursued) showed she understood the counsel option and her ability to invoke it.
Background/experience supported comprehension. The court used Salley’s age, education, familiarity with litigation, and prior criminal exposure to support the conclusion that she appreciated the stakes and the nature of the proceedings.
Strategic motive supported knowing choice. Salley’s sovereign-citizen posture made self-representation a means to present arguments that counsel would not (and likely could not) advance. Under Harrington and the general context inquiry, that supports a knowing waiver even if the strategy is irrational.
Rescission requires obstruction, not merely self-defeating silence. The opinion draws a clear line: poor lawyering, refusal to cross-examine, and refusal to deliver openings/closings are not grounds to force counsel. Only obstruction making proceedings practically impossible (per Jones) can justify rescission.

C. Impact

This decision’s practical impact is in how it strengthens and clarifies several operational rules for trial courts confronting pro se defendants, particularly those advancing sovereign-citizen-style defenses:

Record-building over ritual. The Seventh Circuit again signals that while a structured Faretta colloquy is best practice, appellate review will focus on whether repeated advisals across proceedings demonstrate real understanding. This reduces the incentive for defendants to seek reversal based purely on the absence of a single “formal” hearing.
Strategic-but-baseless theories do not undermine waiver. A defendant’s motive to present frivolous or noncognizable arguments can support (not defeat) the inference that the pro se choice was deliberate. Courts need not equate the irrationality of a litigation theory with incompetence to waive counsel.
Nonparticipation is not the same as obstruction. By tying rescission to the Jones obstruction standard, the opinion discourages a “buyer’s remorse” theory of waiver: defendants cannot trigger a mandatory do-over by choosing silence at trial after insisting on self-representation.
Standby counsel remains a stabilizing tool. While the constitutional right is to counsel (or self-representation), not to standby counsel, the case implicitly validates the district court’s cautious approach in keeping standby counsel despite Salley’s efforts to strike him—particularly in light of her recalcitrant conduct pretrial.

4. Complex Concepts Simplified

Faretta right / proceeding “pro se”: Under Faretta v. California, a competent defendant may choose to represent herself instead of using a lawyer. “Pro se” simply means self-representation.
Faretta colloquy: A judge’s warning-and-confirmation dialogue designed to ensure the defendant understands the dangers of self-representation. This opinion emphasizes that the key is understanding shown by the record, not whether one formal, labeled hearing occurred.
Knowing and intelligent waiver: A waiver is valid when the defendant understands the right being given up and the practical disadvantages of proceeding without counsel, assessed under the “particular facts and circumstances” approach of Johnson v. Zerbst.
Standby counsel: A lawyer appointed to be available to assist a pro se defendant (often to ensure the case can proceed efficiently), even though the defendant remains in control of the defense.
Rescinding a waiver: A court may, in narrow circumstances, terminate self-representation. Under United States v. Jones, the Seventh Circuit’s focus is whether the defendant is obstructing proceedings so severely that it is practically impossible to continue. Mere incompetence, poor strategy, or silence does not meet that bar.
“Sovereign citizen” arguments: These typically assert that courts lack jurisdiction based on idiosyncratic claims about citizenship or legal status. The opinion treats such arguments as frivolous and notes they often motivate pro se choices because counsel cannot responsibly advance them.

5. Conclusion

United States v. Eunice D. Salley reinforces a pragmatic Seventh Circuit rule: a defendant’s waiver of counsel stands when the totality of the record shows repeated advisals, clear awareness of options, and deliberate insistence on self-representation—even where the defendant’s strategy is sovereign-citizen-based and objectively self-defeating. The decision also tightens the boundary on post-waiver intervention: a district court is not required to revoke pro se status due to poor performance or nonparticipation; rescission is reserved for true obstruction that makes proceedings practically impossible.