U.S. v. Grosshans, 86-1727

• Decision Date: 13 August 1987
• Docket Number: No. 86-1727,86-1727
• Citation: 821 F.2d 1247
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frieda M. GROSSHANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1247

821 F.2d 1247

UNITED STATES of America, Plaintiff-Appellee, v. Frieda M. GROSSHANS, Defendant-Appellant.

No. 86-1727.

United States Court of Appeals, Sixth Circuit.

Argued May 14, 1987.

Decided June 30, 1987.

Rehearing and Rehearing En Banc Denied Aug. 13, 1987.

Arthur Jay Weiss (argued), Farmington Hills, Mich., for defendant-appellant.

Stephen Hiyama (argued), Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Before KEITH, KENNEDY and NORRIS, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Defendant-appellant Frieda M. Grosshans ("defendant") appeals the District Court's entry of judgment of conviction on five counts of tax evasion in violation of 26 U.S.C. Sec. 7201. Defendant claims on appeal that a waiver of her right to counsel may not be inferred from the record and that she was forced to choose between proceeding with incompetent counsel or proceeding pro se. She also asserts that the District Court violated the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(2), and erred in admitting evidence of defendant's other crimes, bad acts and wrongs, for the purpose of proving propensity to commit the alleged crime. We find that a knowing and intelligent waiver by defendant can be inferred from the record. We further find that the District Court failed to comply with the Speedy Trial Act when it failed to secure an express waiver, but we hold that a new trial is not required because defendant was not prejudiced. Finally, we hold that the District Court did not err in admitting evidence of defendant's prior acts.

In February of 1986, a grand jury in Detroit returned a five-count indictment charging defendant with tax evasion for the years 1980 through 1984, in violation of 26 U.S.C. Sec. 7201. The indictment alleged that in each of those five years defendant filed a false W-4, claiming exemption from withholding; failed to file an income tax return; and failed to pay her income tax. The day after the indictment, the government sent a letter to defendant notifying her of the indictment and informing her that her arraignment would be held on February 19, 1986. The letter also stated that defendant could have an attorney present at the arraignment and that if she could not afford an attorney, she should contact the Federal Defenders Office. On February 19, defendant appeared before a federal magistrate. She had not retained an attorney and the arraignment was adjourned until February 28 so she could do so.

On February 28, defendant again appeared before a federal magistrate without counsel. She stated that she had been ill and had been unable to find an attorney. She asserted that she still wished to have an attorney. A deputy federal defender gave her the card of the Federal Defenders Office and defendant was told that someone from that office could represent her if she could not find an attorney. The arraignment was adjourned until March 5 to allow defendant to retain counsel. On March 5, defendant appeared before the magistrate without counsel and explained that she had a meeting scheduled with an attorney two days later. The magistrate entered a plea of not guilty and the Assistant United States Attorney read the indictment aloud. Defendant stated that she had a copy of the indictment, but refused to sign an acknowledgment form. On March 11, defendant once again appeared before a federal magistrate without counsel, this time in chambers for a pretrial conference. She claimed that several attorneys had refused to represent her.

On March 24, defendant filed a motion entitled "Motion for Counsel or Co-Counsel of Choice." Defendant requested representation by a non-member of the bar. At a hearing on April 10, the District Court informed defendant that she was not entitled to representation by a person who was not licensed to practice law. The court told defendant that either she must get an attorney herself or he would appoint a member of the Federal Defenders Office to represent her, but defendant said she would not agree to that. The court then stated that defendant was entitled to represent herself if she so chose, but that the court would appoint an attorney to be available to assist her. It concluded that "[w]e have done absolutely everything we could to get you to consider having an attorney who is licensed to practice law in the State of Michigan. You haven't come up with one yet." Joint Appendix at 253. Trial was set for May 19, 1986.

The Federal Defenders Office referred defendant's case to a private attorney, Mr. Patrick Cleary. The District Court docket sheet does not indicate an appearance by Mr. Cleary, but shows that on May 12 he was allowed to withdraw from the case. Mr. Cleary later testified on the record that he had made several attempts to contact defendant soon after he was appointed. He stated that defendant did not return his calls. When he finally contacted her, she indicated to him that she intended to represent herself. Defendant apparently inquired about Mr. Cleary's professional experience. He informed her that he was an experienced criminal attorney, although he had not tried a tax case before. He stated that he was prepared to try the case, but defendant insisted that she did not want counsel. Mr. Cleary then called the District Court and requested a meeting. At the meeting on May 12, the District Court apparently asked defendant if she wanted to represent herself and she answered affirmatively. Mr. Cleary was allowed to withdraw. Unfortunately, we have no transcript of that meeting.

On May 29, four days before the rescheduled trial date of June 2, defendant filed a "Motion for Court to Honor Accused's Right to Proper Defense and Arrange Schedule to Allow Expert Summary Witness to be Present at Trial." She claimed that she needed an "expert summary witness" present at trial in order to conduct a proper defense because Mr. Cleary "admitted he was incompetent to defend properly in this case." Joint Appendix at 70. Defendant's witness would apparently be present to take notes on the proceedings. The court denied defendant's motion for a continuance but stated that defendant's witness would be allowed to be available at trial. At this point in the proceedings, the court again noted that "defendant has been afforded the opportunity on many occasions to have counsel available for her defense. Defendant has consistently refused." Joint Appendix at 72.

On June 2, the first day of trial, the government requested that the court make a finding on the record of waiver of counsel by defendant. The government stated that it was concerned that the record would not indicate waiver. It was particularly worried about the statement in defendant's motion for continuance that defendant needed an expert summary witness present because she was forced to proceed pro se. At this point, Mr. Cleary testified regarding what had happened when he tried to assist defendant. The following interchange between defendant and the court then took place:

THE COURT: Ms. Grosshans, is it still your desire to represent yourself in this case?

MS. GROSSHANS: Your Honor, under the circumstances, since I have been refused counsel of my choice, I have no other choice but to represent myself because I have not found an attorney who can defend inalienable rights.

THE COURT: Well, I can hardly make somebody represent you. There is certainly no rhyme or reason why you should have someone forced upon you that you do not desire to have represent you.

You have asked at an earlier point in these proceedings to have a non-lawyer represent you. You absolutely do not have a right to have a non-lawyer represent you and the Court will not permit it and that is the end of the discussion.

MS. GROSSHANS: I object to that, your Honor.

THE COURT: And so as I understand it, then, ... the position in which I find myself is that you have the right to proceed to represent yourself and you are prepared to do so here today.

It is my duty to make a determination that your waiver of counsel is knowingly made and voluntarily made. I am satisfied that it is; that there is no question in my mind from my association with you over the past few months and you appear to be mentally competent to make the decision to appear pro se.

We have had discussions earlier about the disadvantage of self-representation have we not?

MS. GROSSHANS: Yes.

Joint Appendix at 260-61. The court noted again that it had tried to get defendant to accept counsel and she had repeatedly refused. It stated that Mr. Cleary was a very experienced trial lawyer and that the court could appoint him to assist her in the trial, even if she insisted on representing herself. The court finally stressed that Mr. Cleary would be more aware of the possible defenses to the charges and the procedural aspects of the case. Defendant again stated that she wanted only counsel of her choice, a non-lawyer.

The evidence at trial indicated that defendant had worked for the United States Postal Service and that her wages during the tax years in question ranged from $15,838.43 to $27,378.86. Before 1980, defendant had filed income tax returns and paid her federal taxes. Beginning in 1980, defendant declared herself exempt from withholding and failed to file an income tax return. She continued to make substantial wages and owed taxes for each year from 1980 to 1984. Defendant asserted at trial that she believed that wages were not income and that filing a tax return was a form of compelled self-incrimination. On June 23, 1986, the jury convicted defendant of five counts of tax evasion. On August 7, the District Court sentenced defendant to five years imprisonment, five years probation, and a fine of $25,000. Defendant appeals this conviction.

I.

This Court recently addressed "the question of the type of record necessary to establish a defendant's waiver of counsel is knowing and intelligent." United States v. McDowell, 814 F.2d 245, 249 (6th Cir.1987). The record must show ...