U.S. v. Burson

• Citation: 952 F.2d 1196
• Decision Date: 20 December 1991
• Docket Number: No. 90-2162,90-2162
• Parties: -371, 34 Fed. R. Evid. Serv. 1060 UNITED STATES of America, Plaintiff-Appellee, v. Cecil L. BURSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1196

952 F.2d 1196

69 A.F.T.R.2d 92-371, 34 Fed. R. Evid. Serv. 1060

UNITED STATES of America, Plaintiff-Appellee, v. Cecil L. BURSON, Defendant-Appellant.

No. 90-2162.

United States Court of Appeals, Tenth Circuit.

Dec. 20, 1991.

Robert J. Gorence, Asst. U.S. Atty. (Don J. Svet, U.S. Atty. and David N. Williams, Asst. U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Jill M. Wichlens, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colo., for defendant-appellant.

Before LOGAN and BRORBY, Circuit Judges, and CARRIGAN, ^* District Judge.

BRORBY, Circuit Judge.

Mr. Burson was convicted of attempting to evade the payment of income taxes in violation of 26 U.S.C. § 7201. ¹ Mr. Burson, who represented himself at trial, raises three issues on appeal: (1) did he voluntarily waive his right to counsel; (2) did the trial court err in the admission of evidence; and (3) was the fine imposed excessive?

A summary of the evidence reveals a sizeable Tax Court judgment against Mr. Burson in 1982 for tax deficiencies for the years 1976 through 1979. Thereafter Mr. Burson conveyed both his real and personal property to various entities that had no business licenses and none of which had been registered as required by New Mexico law. All of these entities used either Mr. Burson's post office box or a post office box registered to an individual named Frank Pina as a mailing address. One tax sale of Mr. Burson's realty was defeated when Frank Pina produced a quitclaim deed from Mr. Burson to one of the unregistered entities. The one count indictment covered the years 1982 through 1986. From 1982 through 1986 Mr. Burson, who was working as a welder, had the checks in payment of his services issued to an entity that also used Mr. Burson's post office box as its mailing address. The evidence established Mr. Burson controlled and spent these monies. Mr. Burson did not file any federal income tax returns for the period in question.

I Voluntary Waiver of Counsel

Following the indictment, the trial court spent seven months sparring with Mr. Burson in an effort to force Mr. Burson into a decision concerning counsel. Detailing these occurrences would serve little purpose. A Federal Public Defender was appointed and withdrew. The trial court then appointed Mr. Plotsky to represent Mr. Burson, despite Mr. Burson's refusal to reveal any financial information concerning his property or income. Mr. Burson did not wish the services of Mr. Plotsky, due primarily to the fact that Mr. Plotsky would not file various motions prepared by Mr. Burson and failed to follow the defense strategy desired by Mr. Burson. Mr. Plotsky moved to withdraw, and the trial court denied this motion. Mr. Burson subsequently represented to the trial court he had retained counsel on two separate occasions. The trial court conducted five hearings concerning counsel, and each hearing involved a continuance of the trial setting. Finally, the trial court decided the case would go to trial and delivered an ultimatum to Mr. Burson: You are going to trial--you may utilize appointed counsel; you may retain counsel; or you may represent yourself. As none of these alternatives was agreeable to Mr. Burson, the trial court concluded Mr. Burson would represent himself with appointed counsel, Mr. Plotsky, as standby counsel.

As the trial court repeatedly and correctly advised Mr. Burson of the hazards of self-representation, Mr. Burson correctly concedes his waiver of counsel was knowingly and intelligently accomplished. Mr. Burson asserts his waiver of counsel was not voluntary.

Our review of the voluntariness of defendant's waiver of counsel is de novo. United States v. Silkwood, 893 F.2d 245, 248 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2593, 110 L.Ed.2d 274 (1990). "When a defendant is given a clear choice between waiver of counsel and another course of action, such as retaining present counsel, the choice is voluntary as long as it is not constitutionally offensive." United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987) (citing Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976)). "The question of voluntariness therefore turns on whether defendant's objections to present counsel are such that he has a right to new counsel." Id. It is the defendant's obligation to make this showing. Id.

Following the five hearings relating to counsel and the trial court's ultimatum, the following exchange occurred:

THE COURT: ... I will suggest that you reconsider permitting Mr. Plotsky to represent you.

MR. BURSON: Your Honor, Mr. Plotsky would be fine; but he's already admitted to me ... he didn't understand the law in my case, Your Honor. And I am requesting competent, effective counsel that does understand the law in my case.

THE COURT: What is Mr. Burson speaking about, Mr. Plotsky?

MR. PLOTSKY: I don't know, Your Honor.

THE COURT: Mr. Plotsky, do you feel competent to represent him in connection with the charges that are pending before him?

MR. PLOTSKY: I certainly do, Your Honor. I'm bound by the rules of ethics.

The trial court subsequently found Mr. Plotsky to be competent.

Mr. Burson, tacitly conceding Mr. Plotsky's competence, asserts the trial court did not conduct a sufficient inquiry into Mr. Burson's assertion of ineffective representation. In other words, Mr. Burson contends the trial court failed to conduct an inquiry into appointed counsel's effectiveness.

The record on appeal contains no showing whatsoever that Mr. Plotsky was incompetent, unprepared, or ineffective and in fact reveals counsel was exceptionally competent. The trial court made formal inquiry into Mr. Burson's reasons for dissatisfaction with Mr. Plotsky. The only evidence shows Mr. Burson wanted counsel who was "competent and effective." The trial court specifically addressed Mr. Burson's concerns and specifically found Mr. Plotsky competent, a finding Mr. Burson does not challenge. Mr. Burson's argument that an insufficient inquiry was conducted to determine Mr. Plotsky's effectiveness is semantic. A finding of trial counsel's competency necessarily carries with it a finding of effectiveness. We note for Mr. Burson's benefit that effective counsel does not necessarily guarantee adherence to any strategy proposed by the defendant.

Mr. Burson failed to show good cause for dissatisfaction with appointed counsel. The record clearly reveals Mr. Burson (who had twice represented himself in Tax Court) was merely attempting to manipulate the judicial system. We hold Mr. Burson's waiver of counsel was voluntary as he wholly failed to show that he had a right to new counsel and failed to make any showing concerning his appointed counsel's ability, knowledge, experience, or competency. The record amply demonstrates appointed counsel's competency and effectiveness.

II Evidentiary Errors

Mr. Burson raises several asserted evidentiary errors and claims the cumulative effect of these errors was so prejudicial as to warrant reversal. Prior to discussing these assertions, we note no objections were made concerning these matters during trial, and our review thereof is necessarily for plain error only. Plain error is " 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.' " United States v. Gallup, 812 F.2d 1271, 1278 (10th Cir.1987) (quoting United States v. Coppola, 486 F.2d 882, 884 (10th Cir.1973) cert. denied, 415 U.S. 948, 94 S.Ct. 1469, 39 L.Ed.2d 563 (1974)) (emphasis omitted). If we find a violation of Mr. Burson's constitutional rights, the conviction can stand only if we are satisfied beyond a reasonable doubt the error was harmless. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

A. Pre-Arrest silence:

Mr. Burson contends the prosecution introduced evidence of his pre-arrest silence as substantive evidence of his guilt thereby violating his Fifth Amendment right against self-incrimination.

Mr. Burson points to the following evidence to support his claim. The record reveals the prosecution, during its case in chief, called two I.R.S. criminal investigators who gave essentially identical testimony. The gist of this testimony was that they went to Mr. Burson's residence and told him they would like to talk to him in connection with an investigation of Mr. Frank Pina. Specifically, the criminal investigators said they wished to find out the extent of Mr. Burson's knowledge about Mr. Pina and whether Mr. Burson might have had any financial transactions with Mr. Pina. Mr. Burson indicated he was too busy, and an appointment was made for two days later.

On the appointed day, which was about two and one-half years prior to Mr. Burson's indictment, the two agents again arrived at Mr. Burson's residence where they were met by Mr. Burson carrying a tape recorder. Mr. Burson began interrogating the agents concerning their armament and authority, and the agents decided to terminate the conversation and leave as they felt "it was apparent that he would not cooperate or answer any of [their] questions."

The prosecutor then asked both agents if Mr. Burson had ever responded to the agents' questions concerning "his tax affairs or Mr. Pena's [sic] tax affairs," to which each agent replied "No." It is this specific testimony to which Mr. Burson now objects.

We cast the issue before us in terms of whether the testimony of the two criminal investigators constituted an impermissible comment on Mr. Burson's constitutional right to remain silent. See United States v. McKinnell, 888 F.2d 669, 676 (10th Cir.1989). The challenged evidence at issue in this case came in through the testimony of the two criminal investigators. It came before the jury through the efforts of the prosecution. The challenged testimony was not what the defendant said; rather, it was what he did not say. It is for these reasons we...