U.S. v. Olson

• Decision Date: 11 May 1978
• Docket Number: No. 77-1725,77-1725
• Citation: 576 F.2d 1267
• Parties: 78-1 USTC P 9439 UNITED STATES of America, Appellee, v. Douglas D. OLSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1267

576 F.2d 1267

78-1 USTC P 9439

UNITED STATES of America, Appellee, v. Douglas D. OLSON, Appellant.

No. 77-1725.

United States Court of Appeals Eighth Circuit.

Submitted March 13, 1978.

Decided May 11, 1978.

John A. Gale of Girard & Gale, North Platte, Neb., for appellant.

Richard J. Nolan, Asst. U. S. Atty., Lincoln, Neb., argued, Edward G. Warin, U. S. Atty., Omaha, Neb., on brief, for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and HENLEY, Circuit Judge, and LARSON, Senior District Judge. ^*

VAN OOSTERHOUT, Senior Circuit Judge.

A two-count information filed in the United States District Court for the District of Nebraska on April 5, 1977, charged appellant Douglas D. Olson with violations of 26 U.S.C. § 7205. ¹ Count I alleged that on or about November 22, 1975, Olson supplied his employer, the Chicago and Northwestern Transportation Company, with a signed employee withholding allowance certificate, form W-4E, wherein he falsely certified, knowing the same to be false, that he had incurred no federal income tax liability in 1974 and anticipated none in 1975. Count II alleged a substantially identical violation on or about April 29, 1976, at which time Olson allegedly supplied a form W-4E which contained similar knowingly false statements about his tax liability for 1975 and 1976.

Olson was tried on the above charges in North Platte, Nebraska on August 8-9, 1977, before the Honorable Warren K. Urbom, Chief Judge, and a jury. The defense was conducted pro se. Guilty verdicts were returned on both counts, and a judgment of conviction was duly entered. Olson was sentenced to one-year concurrent sentences, all but ten days of which were suspended, provided Olson comply with several conditions, including payment of a fine in the aggregate amount of five hundred dollars. Alleging numerous grounds for reversal, Olson appeals. For the reasons hereinafter stated, we affirm.

We discuss the various contentions in the order in which they are raised. The facts of the case will be set out to the extent necessary in the course of this opinion.

First, Olson contends the district court erred in failing to appoint advisory counsel to assist in the conduct of his pro se defense. Prior to arraignment Olson had requested that one Lowell Anderson, who is not an attorney, be allowed to represent him. At arraignment the request was denied, but the court advised Olson as follows:

What I shall do, Mr. Olson, is simply acknowledge your right to defend yourself. I do offer to appoint counsel for you. I cannot permit Mr. Anderson, who is not an attorney admitted to practice in this court, to represent you or to speak for you. He can speak to you, he can speak with you, but he cannot speak for you. That simply means if you want to talk with him, that is your right, and I will not interfere with that. As far as any speaking that is done, you must do that. Now, I repeat, if you want counsel appointed for you, and if you can't afford to hire your own counsel, I am not only willing but eager that that be done. So I want you to understand that, not only now, but at any time.

There is no contention that the court erred in denying the request to be represented by Anderson. In any event this court has repeatedly held that a defendant has no constitutional right to be represented by lay or unlicensed counsel. United States v. Buttorff, 572 F.2d 619 (8th Cir. 1978); United States v. Pilla, 550 F.2d 1085, 1093 (8th Cir. 1977); United States v. Hinderman, 528 F.2d 100, 103 (8th Cir. 1976). In addition, Olson frankly admits that he refused the trial court's offer to appoint a licensed attorney to represent him.

Olson nevertheless contends the court erred in not appointing advisory counsel. We of course continue to approve the use of advisory counsel in cases where the defense is conducted pro se. See United States v. Pilla, supra at 1093; United States v. Hinderman, supra at 103; United States v. Sturgeon, 501 F.2d 1270, 1275 (8th Cir. 1974); see also Faretta v. California, 422 U.S. 806, 835 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But we have never held, and we decline to do so now, that the trial court must appoint advisory counsel even after fairly ascertaining that the defendant will not accept licensed counsel. Indeed, we have rejected the view that a defendant has a right both to represent himself and to be represented by counsel even if a request for such hybrid representation is made. United States v. Williams, 534 F.2d 119, 123 (8th Cir. 1976). As noted in Williams, the matter is properly left to the discretion of the trial court, and there was no abuse of discretion here. We add that Olson in fact exhibited considerably more courtroom skill than would most lay persons.

Second, Olson contends the trial court erred in certain of its discovery rulings and in refusing to grant a continuance upon the Government's alleged failure to make discovery. Discovery matters are committed to the sound discretion of the trial court and are reviewable only upon an abuse of that discretion. United States v. Bailey, 550 F.2d 1099, 1100 (8th Cir. 1977). An error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant. Id. Continuance is similarly a matter within the broad discretion of the trial court. United States v. Weaver, 565 F.2d 129, 135 n. 6 (8th Cir. 1977). As nearly as we can discern from the present state of the record, all discoverable materials in the possession of the Government were delivered to Olson at least one week prior to trial. The Government's case at trial was short and straightforward, and the trial court could properly have concluded that one week was sufficient time in which to study the items last discovered. There was no prejudicial error.

Third, Olson contends the tax returns and W-4E forms which constituted the basis of the Government's case against him should have been suppressed or "quashed" because the United States attorney's office allegedly obtained them from the Internal Revenue Service illegally. The argument is not an easy one to follow, but it appears to be predicated in large part upon the general prohibition of 26 U.S.C. § 7213 on unauthorized disclosures of tax return information. However, 26 U.S.C. § 6103(h)(2)(A) specifically authorizes disclosure of such information to attorneys of the Justice Department, including United States attorneys, for use in or preparation for any proceeding before a federal or state court in a matter involving tax administration, provided the taxpayer is a party to such proceeding. This authorization is plainly sufficient here. See Patrick v. United States, 524 F.2d 1109, 1115-16 (7th Cir. 1975); Laughlin v. United States, 154 U.S.App.D.C. 196, 207, 474 F.2d 444, 453 n. 12 (1972). Beyond this initial point, Olson also appears to argue that even if the information could have been disclosed to the United States attorney in a legal manner the procedure employed here was illegal, and further, that he was at least entitled to an evidentiary hearing on the matter. We have searched the record in vain to find even a hint as to how the procedure employed was supposedly illegal, and we can only conclude that the contention is entirely one of conjecture. Consequently, no hearing was required. See United States v Losing, 539 F.2d 1174, 1177-78 (8th Cir. 1976). ²

Fourth, Olson contests the admissibility of most of the Government's exhibits, on grounds of inadequate foundation and materiality, as well as the sufficiency of the evidence to support the convictions. This contention requires a brief synopsis of the Government's case at trial.

As already noted, the Government's case was short and straightforward. Olson is a tax protester. Government exhibits 4 and 5 were the W-4E forms signed by Olson on November 22, 1975 and April 29, 1976. On each Olson certified that he had incurred no federal income tax liability for the prior year and anticipated none in the current year. Attached to each was a list of reasons why, in Olson's opinion, the federal income tax is unconstitutional or otherwise illegal. Government exhibits 6, 7, 8 and 9 were certain payroll records of the Chicago and Northwestern Transportation Company showing earnings by Olson for the years 1974 through 1977, inclusive; Government exhibits 11, 12 and 13 were the form 1040 tax returns filed by Olson and his wife for the years 1974 through 1976, inclusive. These seven exhibits were offered and received for the purpose of showing that Olson did have income tax liability for the years in question. The Government called four witnesses, largely for purposes of authenticating the exhibits.

Olson contends that no proper foundation was laid for the receipt of any of the above exhibits because it was never shown that any of the exhibits pertained to the same "Douglas Duane Olson" or "Douglas D. Olson" or "D. D. Olson" as the defendant. The contention is without merit. "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims" Rule 901(a), Fed.R.Evid. Here, there is strong corroborative evidence that the prosecution was not mistakenly brought against the wrong Douglas Olson, and there is no serious contention that it was. Olson's materiality objections are equally without merit. All of the exhibits, with the possible exception of exhibit 9, a payroll record for 1977, were unquestionably material to establishing the falsity of the certifications made on the W-4E forms. If any error occurred in the admission of exhibit 9, it was without doubt harmless. Olson's challenge to the sufficiency of the evidence rests largely upon the assertedly erroneous admission of the above exhibits into evidence and is likewise without merit. ³

Fifth, Olson challenges the trial court...