U.S. v. Krzyske

• Decision Date: 09 March 1988
• Docket Number: No. 85-1760,85-1760
• Citation: 836 F.2d 1013
• Parties: -445, 88-1 USTC P 9117 UNITED STATES of America, Plaintiff-Appellee, v. Kevin Elwood KRZYSKE, Defendant-Appellant. /1799.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1013

836 F.2d 1013

61 A.F.T.R.2d 88-445, 88-1 USTC P 9117

UNITED STATES of America, Plaintiff-Appellee, v. Kevin Elwood KRZYSKE, Defendant-Appellant.

No. 85-1760/1799.

United States Court of Appeals, Sixth Circuit.

Argued April 20, 1987.

Decided Jan. 5, 1988.

Rehearing and Rehearing En Banc Denied March 9, 1988.

Josephine A. Chapman, Belleville, Mich., Aaron T. Speck (argued), Taylor, Mich., for defendant-appellant.

Karen Reynolds (argued), U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Before MERRITT, WELLFORD and NORRIS, Circuit Judges.

WELLFORD, Circuit Judge.

Defendant-appellant Kevin Elwood Krzyske was indicted on April 16, 1985, and charged with ten tax-related counts: five counts of tax evasion for the years 1978 through 1982, 26 U.S.C. Sec. 7201 (counts 1-5); four counts of failure to file tax returns for the years 1979 through 1982, 26 U.S.C. Sec. 7203 (counts 6-9); and one count of filing a false withholding exemption certificate in 1982, 26 U.S.C. Sec. 7205 (count 10). He was arraigned on April 17, 1985.

Jury deliberations commenced on June 25, 1985, and on June 26, 1985, Krzyske was acquitted on count 5 of tax evasion for 1982 and on count 10 of filing a false withholding exemption certificate in 1982. On June 27, 1985, Krzyske was convicted on counts 8 and 9 of failure to file tax returns for 1981 and 1982. The jury completed its deliberations on June 28, 1985, by acquitting on counts 2, 3, and 4 of tax evasion for 1979, 1980, and 1981 but convicting Krzyske on one count of tax evasion for 1978 and on counts 6 and 7 for failure to file tax returns for 1979 and 1980.

Trial Judge Joiner sentenced Krzyske to five years imprisonment on the count 1 felony conviction, and one year each on the misdemeanor convictions, counts 6 through 9. The sentences imposed on counts 6 through 9 were to run consecutive to one another and concurrent with the custody sentences imposed on count 1. Krzyske was also fined a total of $20,000.

On September 17, 1985, the district court granted bond on appeal conditioned upon Krzyske's promise: 1) to refrain from communicating with anyone other than his attorney regarding his beliefs about income taxes during the appeal; 2) to file back tax returns; and 3) to pay past due taxes. These conditions were imposed by the trial court to ensure the "safety of others, and the community." We set aside the first condition as a prior restraint of first amendment rights but affirmed the other two conditions. However, Krzyske did not fulfill the remaining conditions of his bond, and it was cancelled. Krzyske has appealed the propriety of those conditions through a petition for certiorari while incarcerated in Duluth, Minnesota. He has since been released by a subsequent order of this court on bond pending the outcome of this appeal.

We are faced with three issues on appeal in this case. First, Krzyske claims that it was error for the district court to allow him to go to trial without assistance of counsel. Second, he claims reversible error in the district court's instruction concerning "willfulness." Last, he claims he was entitled to a jury instruction concerning the doctrine of jury nullification of a conviction. For the reasons set out below, we affirm the district court in all respects.

I.

Krzyske's first argument is that he was not allowed assistance of counsel at his trial and arraignment. The record shows that he repeatedly requested that he be represented by a non-lawyer during his trial, but this request was refused. As a result of his refusal to properly request an attorney until the sentencing hearing, Krzyske represented himself.

Krzyske's arraignment was held on April 17, 1985, before Magistrate Komives. The magistrate informed him of his right to appointed counsel, but Krzyske indicated that he intended to obtain his own private counsel. The magistrate clearly left Krzyske the possibility of asking for court-appointed counsel at a later date by stating: "If you wish to have counsel appointed for you at some later time, you can make a request...." No more was said about representation during the arraignment.

On May 13, 1985, a pretrial hearing was arranged before Magistrate Pepe to consider several pending motions. At this hearing, Krzyske moved to appoint lay counsel to represent him, and based this motion on his belief that the Constitution guarantees him the right to "counsel"; not necessarily an attorney. Krzyske maintained that he would not be as well represented by an attorney as by his friends because lawyers were not as familiar with his tax protest Krzyske's trial began June 14, 1985, and he began the day by objecting to any proceedings he would have to defend without assistance of counsel. He stated that if he could not be assisted by a nonlawyer, he would consider accepting the help of a court-appointed attorney. The government objected that Krzyske had failed to properly request court-appointed counsel by filing an affidavit of indigency, though he had been told of these requirements by Magistrate Pepe. The United States Attorney claimed that it was too late for Krzyske to obtain a lawyer, and that this was merely an attempt to delay his trial. Krzyske claimed he needed a lawyer to fill out the indigency affidavit to ensure he was not waiving any right to privacy in doing so. Judge Joiner ruled that under the circumstances the trial should proceed with Krzyske appearing pro se. When Krzyske later renewed his objection to proceeding without an attorney, Judge Joiner again denied his request for an attorney because there was no evidence that he was unable to afford one. ²

                views and because they were inclined to be unsympathetic toward his cause.  The magistrate denied his motion, but informed him he had the right to a court-appointed attorney if he could show he was indigent. 1   He was also told he could represent himself.  Krzyske refused to file an affidavit of indigency but continued to assert his right to lay counsel at the proceedings through briefs and argument.  He also objected to continuing pretrial proceedings without the help of such counsel
                

Following the jury's verdict but before sentencing, Krzyske appeared and requested that an attorney be appointed for him. The judge again refused to appoint an attorney because he concluded Krzyske was not indigent, but nevertheless postponed the sentencing hearing for a week to allow him to find a lawyer. This time Krzyske returned with an attorney and has since been represented by counsel.

Krzyske makes two related arguments concerning his representation at trial. First, he contends that he was not given enough time to obtain a lawyer following the magistrate's refusal to appoint nonlegal counsel. ³ Second, he claims his constitutional rights were violated when, on the first day of trial, the court refused to appoint an attorney to assist him in filling out an affidavit of indigency. He asserts that he needed a competent attorney to help him fill out this form because he feared the information could have been used against him by the prosecution, and claims it is error to require a waiver of his fifth amendment right to silence in exchange for his sixth amendment right to counsel. These arguments amount to a claim that Krzyske never waived his right to counsel, and was prejudiced by his appearance in court without one.

The government responds that Krzyske was fully aware of and knowingly waived his right to counsel, that he never intended to be represented by a lawyer, and that his objections at trial were an attempt to delay the proceedings; a tactic not allowed by federal courts. The government finally asserts that all of the trouble surrounding appointment of counsel was Krzyske's attempt The important right to counsel of choice is not absolute; it must be balanced against the court's authority to control its own docket, and a court must beware that a demand for counsel may be utilized as a way to delay proceedings or trifle with the court. See Lockett v. Arn, 740 F.2d 407, 413 (6th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 3332, 92 L.Ed.2d 738 (1986); United States v. Fowler, 605 F.2d 181, 183 (5th Cir.1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 785 (1980).

to manufacture grounds for reversal on appeal.

Waiver occurs when the record shows that an accused was reasonably offered counsel but understandingly rejected the offer. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962); United States v. Grosshans, 821 F.2d 1247 (6th Cir.1987). A litigant cannot play a "cat and mouse game" with the court in order to preserve an issue for appeal or to delay proceedings. See United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981); Relerford v. United States, 309 F.2d 706, 707 (9th Cir.1962); United States v. Weninger, 624 F.2d 163 (10th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). "The right to assistance of counsel does not imply the absolute right to counsel of one's choice ... [but] must be balanced against the need for the efficient and effective administration of criminal justice." Weninger, 624 F.2d at 166. In Weninger the defendant was found to have had a reasonable opportunity to obtain counsel during the two months before trial:

The record as a whole indicates that, although Weninger was made "aware of the dangers and disadvantages of self-representation," Faretta [v. California ], 422 U.S. at 835, 95 S.Ct. [2525] at 2541, 45 L.Ed.2d 562, he strategically chose to appear pro se. However, after the jury refused to uphold his patriotic protest against the federal income tax, Weninger retained counsel to contend on appeal that the conduct of his trial was constitutionally impermissible. We refuse to permit this type of game to be played with the courts. We hold that Weninger's stubborn failure to hire an attorney constituted a knowing and intelligent waiver of the right to assistance of counsel.

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