U.S. v. Bernloehr
Decision Date | 23 November 1987 |
Docket Number | No. 87-5038,87-5038 |
Citation | 833 F.2d 749 |
Parties | UNITED STATES of America, Appellee, v. Bruce Ernest BERNLOEHR, Appellant. |
Court | U.S. Court of Appeals — Eighth Circuit |
Robert S. Abdalian, Minneapolis, Minn., for appellant.
Franklin L. Noel, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
Bruce Bernloehr was convicted of eight counts of mail fraud, 18 U.S.C. Sec. 1341 (1982), and one count of equity skimming, 12 U.S.C. Sec. 1709-2 (1982). On appeal he asserts that he was denied the constitutional right to testify on his own behalf. Upon complete review of the record we must disagree. We affirm his conviction.
Bernloehr, a real estate broker and investor, was charged in the United States District Court for the District of Minnesota with ten counts of mail fraud and one count of equity skimming. During opening statements in his jury trial, Bernloehr's retained counsel made several references to the testimony the jury could expect to hear from Bernloehr. Bernloehr's attorney told the jury that Bernloehr's testimony would make clear to them that he had no intent to defraud or skim.
On the last day of the seven-day trial, the following interchange occurred:
Mr. Hanley (Bernloehr's attorney): Your Honor, we would call Bruce Bernloehr.
The Court: 1 Prior to calling Mr. Bernloehr, would it be reasonable to take a couple minutes for a recess?
Mr. Hanley: Yes, Your Honor.
Upon returning from the recess, Hanley did not call Bernloehr to the stand, but instead called a Mr. Knudson. After questioning Knudson, Hanley approached the bench and stated: After an on-the-record bench discussion, Hanley rested Bernloehr's case. Bernloehr did not object when his attorney rested, nor did he at any time indicate to the court that he still wished to testify.
The only recorded statement from Bernloehr indicating that he wished to testify came at the sentencing hearing, where he had the following colloquy with the prosecutor:
Q. You indicated that you intend to prosecute an appeal in this matter.
As I understand it the issue you wish to raise on appeal is that the Judge didn't advise you of your right to testify before permitting you to rest, is that correct?
A. That's correct.
Q. You knew throughout the trial that it was always an option to you to testify, didn't you?
A. I was assuming that it was.
Q. Yes. And after discussing the matter with your attorney on the last day of trial you decided not to testify, isn't that correct?
A. I told him that I wanted to testify. It was his decision that I didn't testify.
Q. But you knew all along that you had, that it was an option to you to testify, you could get up on that very seat that you're now sitting in and tell the story to the jury that you wish to tell?
A. Well, that was never explained to me really.
The trial court found otherwise, however, stating to Bernloehr at various times during the sentencing hearing:
Bernloehr now argues that his will to testify was "overcome" by his attorney and that the trial court had an affirmative duty to inquire as to why Bernloehr was not testifying.
In Rock v. Arkansas, --- U.S. ----, 107 S.Ct. 2704, 2709-10, 97 L.Ed.2d 37 (1987), the Supreme Court explicitly confirmed that criminal defendants have a constitutional right to testify on their own behalf. Because the right to testify is a fundamental constitutional guarantee, only the defendant is empowered to waive the right. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983) ("the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to * * * testify in his or her own behalf * * *."; Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S.Ct. 2497, 2510 n. 1, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring); United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984), cert. denied, 475 U.S. 1064, 106 S.Ct. 1374, 89 L.Ed.2d 600 (1986). Moreover, the defendant's waiver of his right to testify, like his waiver of other constitutional rights, should be made voluntarily and knowingly. Cf., e.g., Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969) ( ); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) ( ).
Here, Bernloehr, an apparently mature and sophisticated businessman, represented by able and experienced counsel, 2 made no objection when his counsel rested without calling Bernloehr to the stand. As the First Circuit has stated, "[t]he accused must act affirmatively" in these circumstances. United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985); cf. United States v. Janoe, 720 F.2d 1156, 1161 n. 9 (10th Cir.1983) (, )cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984); 18 U.S.C. Sec. 3481 (1982) () (emphasis added). The defendant may not, as Bernloehr did, indicate at trial his apparent acquiescence in his counsel's advice that he not testify, and then later claim that his will to testify was "overcome." See Hollenbeck v. Estelle, 672 F.2d 451, 453 (5th Cir.) ("Post-conviction displeasure with his attorney's advice does not change the basic constitutional determination."), cert. denied, 459 U.S. 1019, 103 S.Ct. 383, 74 L.Ed.2d 514 (1982). Nothing in the record supports such a claim, and we therefore agree with the trial court's assessment that Bernloehr "[was] not, in fact, muzzled."
Bernloehr argues further, however, that this court should adopt a rule requiring the trial...
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