501 F. 2d 1249 - Cooley v. United States

Thomas C. Kleinschmidt (argued) of Federal Public Defenders, Phoenix, Ariz., for defendant-appellant.

Thomas N. Crowe (argued) Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Before CHAMBERS and BROWNING, Circuit Judges, and TAYLOR, District judge.*

The appellant, Marvin L. Cooley, was convicted of wilfully and knowingly failing to file a federal income tax return for each of the years 1968, 1969 and 1970 in violation of Title 26 U.S.C., 7203.1 Appellant was sentenced to a term of imprisonment of one year and fined in the amount of $2,000.00 on each count.

The appellant voluntarily chose to represent himself at all times in the trial court, but on this appeal he is represented by counsel appointed at his request subsequent to the conclusion of the proceedings in the lower court. The issues, which have been raised and presented here, will be considered seriatim.

One of the contentions now made by appellant is that the trial court erred in allowing him to represent himself without first determining whether the waiver of counsel was competently and intelligently made. We find this contention has no merit.

The record reveals that appellant was and is a mature, intelligent and well-in-formed individual; that he was especially well informed in regard to income tax matters, the charges against him and the possible consequences if convicted in regard thereto. Also, it appears that appellant was knowledgeable, experienced and competent in regard to the legal proceedings in connection with the charges against him. It clearly appears from the record that appellant not only refused the court's offer to appoint counsel for him, but that he knew of his right to represent himself and insisted on doing so.2 The court could not properly deny him that right. Title 28 U.S.C. 1654; Hodge v. United States, 414 F.2d 1040, 1042 (9th Cir. 1969).

We are then confronted with the question of whether the appellant competently and intelligently asserted the right to represent himself.3 In Hodge, a majority of this court, in banc, stated at p. 1042:

'In this context we take this to mean whether he was sufficiently informed of the consequences of his choice.'

Also in Hodge at p. 1043, the court asserted:

'The question was simply whether the defendant understood the charges against him and was fully aware of the fact that he would be on his own in a complex area where experienced and professional training are greatly to be desired.'

In our opinion, that question in this case must be answered in the affirmative. In reaching this conclusion, we have examined and relied upon the record as a whole, as we may properly do. Hodge, supra, at 1043 n. 4.

The appellant relies principally on United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973) as his authority for the proposition that his waiver of counsel is not adequately reflected in the record. We do not believe that Dujanovic is dispositive of this case since the factual situation in that case was inapposite to the one here. Appellant contends that under Dujanovic, it is not sufficient that waiver appear from the record as a whole. Appellant relies upon two statements in the Dujanovic opinion: (1) that it is a 'minimal requirement' that the district court 'shall not grant a request to waive counsel and proceed pro se without addressing the accused personally and determining on the record that the damand to waive counsel and proceed pro se is competently and intelligently made with understanding of the nature of the charge and the penalties involved'; and (2) that 'nothing whatsoever can thereafter occur during the pilotless journey which will evidence the state of mind of the accused or information at hand upon which he at that time intelligently waived his constitutional right of counsel.' 486 F.2d at 186.

The first statement is obviously admonitory rather than a rule of decision. See 486 F.2d at 188 n. 2. While the procedure described may be preferred, its omission is not, per se, reversible error, where it appears from the whole record that the defendant knew his rights and insisted upon representing himself. We understand the second statement to mean only that the manner in which the defendant conducts his defense cannot conclusively establish his state of mind at the time of waiver.

It should be noted that even in Dujanovic, the panel examined three distinct portions of the record for the purpose of determining whether there had been a waiver of counsel. Also, the panel recognized the rule as announced in Hodge, supra, 414 F.2d at 1042 n. 2, that the 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.

The appellant contends that the instructions on the issue of wilfulness were inadequate and incorrect for the reason that the court did not include the words 'bad intent' or 'evil motive' as requested. He argues that United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973) required the trial court to include the requested language. We do not agree. The court clearly instructed the jury in regard to the applicable law and the meaning of 'wilful' even though the language used did not include 'bad intent' or 'evilmotive.'4 ] The instructions given by the court were in substantial compliance with Bishop and appellant's requested instruction would not have added anything. Numerous courts have rejected claims that wilfulness instructions must include the terms 'bad intent' or 'evil motive', the most recent pronouncement being by a panel of this court in United States v. Hawk, 497 F.2d 365 (1974). In Hawk, the court stated:

'While the use of such terms is often helpful, all that is required are instructions which communicate the proper notion of specific intent in understandable terms.'

The instructions given in this case were indeed adequate for this purpose.

Appellant next argues that the trial court committed reversible error in refusing to admit in evidence a copy of a letter appearing in the Congressional Record, an Internal Revenue Service Training Manual, and several opinions of the United States Supreme Court in support of appellant's position at trial that he did not act 'wilfully'. The thrust of his argument is that he relied on these matters in determining that he was not required to file 1040 income tax returns as required by the statute. After considerable discussion with the court, at the bench and during the absence of the jury, the court at recess reviewed the material offered and concluded that they did not contain any relevant information on the issue of whether the appellant should or should not file completed tax returns. We agree that the offered material was immaterial and should not have been admitted as evidence. In the orderly trial of a case, the law is given to the jury by the court and not introduced as evidence. It is the function of the jury to determine the facts from the evidence and apply the law as given by the court to the facts as found by them from the evidence. Obviously, it would be most confusing to a jury to have legal material introduced as evidence and then argued as to what the law is or ought to be.

Haigler v. United States, 172 F.2d 986 (10th Cir. 1949), relied on by appellant, is not authority on the question of whether copies of court decisions are admissible as evidence. It is also distinguishable in that the defendant there was prevented from testifying in regard to his understanding of the law and the jury was instructed that his ignorance of the law was no excuse. The record here shows that appellant was permitted to testify in regard to his conversations with employees of the Internal Revenue Service and in regard to his understanding of his rights under the law and Constitution. In addition, the trial court carefully instructed the jury in regard to appellant's good faith reliance upon his own interpretation of the law.

Finally, appellant claims that the sentence imposed was so excessive as to be cruel and unusual, even though within the statutory limits.

'It is well settled that a sentence within a valid statute cannot amount to 'cruel and unusual punishment', and that when a statute provides for such punishment, the statute only can be attacked. It is equally clear that the appellate court has no power to modify or reduce the sentence. "If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by statute.' Gurera v. United States, 8 Cir., 1930, 40 F.2d 338, 340.' Pependrea v. United States, 275 F.2d 325, 329, 330 (9th Cir. 1960); see also: Bowman v. United States, 350 F.2d 913, 917 (9th Cir. 1965).'

We are confident that the experienced sentencing judge gave due consideration to all the facts and circumstances involved in this case before imposing the sentence on appellant. We do not find the sentence so excessive as to be cruel and unusual.

After carefully reviewing the record in this case, we are of the opinion that appellant was accorded a fair and impartial trial and that he represented himself as intelligently and competently as he might have been by an experienced attorney.

Having found no reversible error in the record, the judgment is affirmed.