U.S. v. Peterson

• Decision Date: 20 January 1977
• Docket Number: No. 75-2093,75-2093
• Citation: 550 F.2d 379
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gordon C. PETERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 379

550 F.2d 379

UNITED STATES of America, Plaintiff-Appellee, v. Gordon C. PETERSON, Defendant-Appellant.

No. 75-2093.

United States Court of Appeals Seventh Circuit.

Argued Nov. 5, 1976.

Decided Jan. 20, 1977.

Gordon C. Peterson, in pro per.

David C. Mebane, U.S. Atty., Madison, Wis., for plaintiff-appellee.

Before BAUER and WOOD, Circuit Judges, and DILLIN, District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

On March 26, 1975, the defendant was charged in a one count indictment with practicing law for three days in December, 1974, in the United States District Court for the Western District of Wisconsin, on land under the exclusive jurisdiction of the United States, by appearing as agent and representative for Thomas F. Stockheimer in a case entitled United States v. Stockheimer, 385 F.Supp. 979 (W.D.Wis.1974), aff'd, 534 F.2d 331 (7th Cir. 1976), in violation of §§ 7 and 13, Title 18 U.S.C., and § 256.30(1) and (2) of the Wisconsin Statutes. ¹

After trial by jury the defendant was found guilty and sentenced to a 30-day term of imprisonment.

There is little factual dispute, but some background is helpful in understanding the issue in one criminal prosecution that grew out of another. In United States v. Stockheimer, supra, the defendant Stockheimer was charged with assaulting a federal officer. Stockheimer filed a motion for an order to "allow Gordon Peterson, a person not licensed by any Court or Governmental Agency, but only licensed by Petitioner by this Power of Attorney, to be and act as Counsel and spokesman for Petitioner before the Court at the pleasure and direction of Petitioner." Peterson consented to act in accordance with the motion. A few days later Stockheimer filed a similar motion seeking to have one Jerome Daly, another disbarred attorney, also assist in his defense. This latter motion was not pursued by Stockheimer and is not involved in this appeal. Both motions were opposed by the Government.

Judge Doyle set the Stockheimer-Peterson motion for hearing, following which the court entered an Opinion and Order. Stockheimer, supra. In general that opinion found that Stockheimer was not qualified to defend himself effectively without the assistance of counsel, but had effectively waived the right to be represented by a member of the bar at either his own or public expense. It was further found that Stockheimer trusted Peterson as they generally shared the same philosophy concerning constitutional rights and desired Peterson's trial assistance with full knowledge that Peterson had been disbarred in Minnesota in 1971. As to Peterson, the court found that he had been a member of the Minnesota Bar from 1942 to 1961 when his license was revoked for alleged dishonesty in his professional dealings. Since that time Peterson had unsuccessfully sought reinstatement. The court then concluded as to Peterson that even apart from his lack of license he was not presently professionally qualified to serve effectively as an attorney for a defendant in a criminal case.

After a discussion of the Fifth and Sixth Amendments the court denied Stockheimer's motion, but concluded that in the absence of any constitutional or federal statutory provision compelling the court either to forbid or not forbid such assistance, the court was free to exercise its discretion. The court then stated that Stockheimer would not be forbidden to have the assistance of Peterson. The court made it clear that Peterson was being granted nothing by the court, including any protection or immunity from any applicable state or federal law, and particularly those with respect to the unauthorized practice of law.

Thereafter the Stockheimer case proceeded to trial with Peterson assisting the defendant. The evidence was clear that Peterson performed the usual services of an attorney during the entire three-day trial. He sat at counsel table, conferred with Stockheimer, addressed the jury, argued motions, participated in side bar conferences and conferences in chambers, examined and cross-examined witnesses, and participated in the conference on instructions. No violation of Judge Doyle's order is claimed, nor is it claimed that there was any disturbance or other improper conduct by Peterson during the trial.

Stockheimer was convicted and on appeal to this court sought reversal on the basis that it was plain error for the court to have permitted Peterson to represent him. In an unpublished order this court affirmed the conviction upon the basis that the error committed in allowing a person not licensed to practice law to represent the defendant had been at Stockheimer's own urging, about which he would therefore not now be heard to complain.

Next followed Peterson's own indictment, jury trial and verdict of guilty for his participation in the Stockheimer case on the basis that Peterson, not being licensed, had violated the Wisconsin criminal statutes punishing the unlicensed practice of law made applicable to the federal courts by the Assimilated Crimes Act. Peterson was sentenced to 30 days in jail. This appeal followed.

On appeal the defendant argues that the Wisconsin prohibitions against the unlicensed practice of law are not applicable because the United States Constitution and § 1654, Title 28 U.S.C., ² have preempted the field. It is a conflict of law question, the defendant urges, because the Congress has legislated on a matter within its control, rendering the state legislation void. He relies in part on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 562 (1975). That case stands only for the proposition that the Sixth Amendment, made applicable to the States by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has a constitutional right to represent himself and may proceed without counsel when he voluntarily and intelligently elects to do so. That case does not hold that a defendant has the freedom of choice to select a nonlicensed person as his counsel.

The defendant also argues that the Wisconsin Constitution, Article Seven, Section 20, providing that "In all Courts of this State any party may prosecute or defend by Counsel or Agent of his choice," permits freedom of choice as to the assistance of counsel. However, in State ex rel. Baker v. County Court, 29 Wis.2d 1, 138 N.W.2d 162 (1965), relied on by the trial court, the Supreme Court of Wisconsin thought otherwise, holding that the term "agent," as used in that article of the Wisconsin Constitution, had become co-extensive with the term "attorney."

The Government frames the issue this way: "Was the offense of practicing law without a license within the ambit of Section 256.30(1) and (2), Wisconsin Statutes, and incorporated by Sections 7 and 13, Title 18 U.S.C., clearly established upon the record, amply supported by evidence, and sufficient to sustain the conviction . . .?"

We need not consider so much of that issue as relates to the sufficiency of the evidence which clearly demonstrated that Peterson was practicing law in behalf of Stockheimer regardless of the various terms which might be applied to the relationship.

The remaining part of the issue is whether or not the Wisconsin statutes prohibiting the practice of law in Wisconsin without a Wisconsin license has been assimilated into federal law as the Government claims rather than preempted by federal law as argued by the defendant.

The Government cites Baker, supra, for the proposition that the Wisconsin statutes prohibiting the unlicensed practice of law in Wisconsin are constitutional and through the Assimilated Crimes Act are applicable to areas of federal jurisdiction. The Government, citing Harrison v. United States, 128 U.S.App.D.C. 245, 387 F.2d 203 (1967), reversed on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), does not see § 1654, Title 28 U.S.C., to be in any way applicable since, the Government argues, § 1654 speaks to one's right to appear in the courts of the United States personally or by counsel and does not deal with a "layman masquerading as a qualified attorney." 387 F.2d at 212. Harrison is of no help here as that case does not concern itself with the meaning of § 1654. That case considers the problem of the admissibility of prior testimony of a defendant to be used against him at subsequent trials. The damaging testimony had been given by him at his first trial when he was represented only by an impostor, not a licensed attorney. The court condemns entrusting so precious a right as representation by counsel to one not licensed to practice, but does not address our issue. The Government also cites United States v. Jordan, 508 F.2d 750 (7th Cir. 1975), cert. denied 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 62, holding that a court is not obligated to appoint counsel of defendant's choice where the chosen attorney is not admitted to practice. Also cited are United States v. Sexton, 473 F.2d 512 (5th Cir. 1973), and Lofton v. Procunier, 487 F.2d 434 (9th Cir. 1973), which are even less in point. In Sexton the court refused to grant the defendant a continuance after a court appointed attorney desired to withdraw and the defendant desired an attorney retained by his family. Lofton involved a situation where the court favored proceeding to trial with the defendant being represented by a public defender instead of a lawyer who the defendant had subsequently retained on his own, but who could not be present for the trial unless a continuance was granted.

Judge Warren stated that this was a very unique and difficult case. We find it likewise. We find in the Peterson trial record that Peterson also sought by pretrial motion, similar to the underlying Stockheimer case, to have in the trial of this case the assistance of Daly, likewise disbarred. In its brief in opposition to that motion the Government stated that though it opposed the relief sought by the motion, it "respectfully submits that it is clearly within the...