U.S. v. Studley

• Decision Date: 14 November 1985
• Docket Number: No. 84-1288,84-1288
• Parties: -888, 86-1 USTC P 9390 UNITED STATES of America, Plaintiff-Appellee, v. Ruth STUDLEY, Defendant-Appellant. . Submitted *
• Court: U.S. Court of Appeals — Ninth Circuit

Page 934

783 F.2d 934

57 A.F.T.R.2d 86-888, 86-1 USTC P 9390

UNITED STATES of America, Plaintiff-Appellee, v. Ruth STUDLEY, Defendant-Appellant.

No. 84-1288.

United States Court of Appeals, Ninth Circuit.

Submitted ^* Nov. 14, 1985.

Decided Feb. 26, 1986.

Thomas E. Flynn, Sacramento, Cal., for plaintiff-appellee.

Ruth Studley, in pro per.

Appeal from the United States District Court for the Eastern District of California.

Before BARNES, FARRIS and CANBY, Circuit Judges.

CANBY, Circuit Judge.

Studley, a real estate broker, was convicted after a jury trial of three counts of willful failure to file tax returns for the years 1978, 1979, and 1980. ¹ 26 U.S.C. Sec. 7203. Studley filed a timely notice of appeal and raises a host of issues before us. We affirm.

I. ARREST WARRANT

Studley first contends that her arrest and prosecution were illegal because neither Fed.R.Crim.P. 9(a) requires a showing of probable cause under oath before a warrant may be issued on an information. The government candidly concedes that the probable cause statement was omitted from the warrant application but states that it was filed immediately after the omission was brought to the government's attention by appellant.

the arrest warrant nor the information was supported by a sworn oath or affirmation. As a result, she believes her conviction should be reversed. ²

Despite the government's improper handling of the warrant application, however, the conviction must stand. The Supreme Court has repeatedly held that an illegal arrest or detention does not void a subsequent conviction. See Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865-66, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511-12, 96 L.Ed. 541 (1952). Studley in no way argues that her conviction was based on evidence derived from any illegal police activities. Moreover, a prior judicial determination of probable cause is not a prerequisite to prosecuticn by information. Gerstein, 420 U.S. at 119, 95 S.Ct. at 865-66. Thus, any illegality in Studley's arrest does not require reversal of her conviction.

II. JURISDICTION

Studley argues that, because her arrest was illegal, the district court lacked both personal and subject matter jurisdiction. We disagree. First, the court unquestionably had subject matter jurisdiction. Under 18 U.S.C. Sec. 3231, federal district courts have exclusive original jurisdiction over "all offenses against the laws of the United States." These offenses include crimes defined in Title 26 of United States Code. United States v. Przybyla, 737 F.2d 828, 829 (9th Cir.1984) (per curiam), cert. denied, --- U.S. ----, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985). Moreover, the defect in Studley's arrest did not deprive the district court of personal jurisdiction over her. See United States v. Warren, 610 F.2d 680, 684 n. 8 (9th Cir.1980) (court has jurisdiction over any party who appears before it, regardless of how appearance is effected).

Next, Studley claims she was prejudiced in this case because she never received a definitive statement of the basis for the district court's jurisdiction. Our review of the record shows that the district court explained the basis of its jurisdiction several times, the last on May 21, 1984. Studley's assertion that she was prejudiced by changes in the court's explanations is meritless; all of her attacks on the court's jurisdiction were frivolous. She was not prejudiced.

III. TAXPAYER STATUS

Studley contends that she is not a "taxpayer" because she is an absolute, freeborn and natural individual. This argument is frivolous. An individual is a "person" under the Internal Revenue Code and thus subject to 26 U.S.C. Sec. 7203. United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981). ³

IV. DENIAL OF JURY LISTS

Studley also contends that reversal is required because she was denied access Where a motion to inspect is erroneously denied, however, reversal is not required. Instead, the case should normally be remanded to permit inspection. Test, 420 U.S. at 30, 95 S.Ct. at 750-51; United States v. Beaty, 465 F.2d 1376, 1382 (9th Cir.1972). If inspection reveals grounds upon which to challenge the jury selection, a defendant may file a motion, such as for a new trial, under Sec. 1867(a). Beaty, 465 F.2d at 1382. Such motions must be made "within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor...." 28 U.S.C. Sec. 1867(a). The court shall then grant the Sec. 1867(a) motion if it determines that the jury selection procedure was prejudicial. Beaty, 465 F.2d at 1382.

                to jury lists.  Under 28 U.S.C. Sec. 1867(f), parties "shall be allowed to inspect" records of the jury selection process in order to prepare motions challenging jury selection.  The right to inspect jury lists is essentially unqualified.    Test v. United States, 420 U.S. 28, 30, 95 S.Ct. 749, 750-51, 42 L.Ed.2d 786 (1975) (per curiam);  United States v. Armstrong, 621 F.2d 951, 955 (9th Cir.1980)
                

Before trial, Studley requested a list of all grand and petit jurors. ⁴ The district court denied the request. After trial, Studley renewed the request, citing Test. The court granted inspection on November 11, 1984, but Studley has not subsequently moved for dismissal of the indictment or a new trial based on her inspection.

The government concedes that Studley's first request should have been granted. Nonetheless, we decline either to reverse or remand because Studley has received the benefit of the remedy under Test and Beaty. Studley has already had an opportunity to inspect the jury lists, but she failed to file the required Sec. 1867(a) motion within seven days. Thus, Studley's attempt to challenge jury selection is now untimely.

V. CONTINUANCE

Studley argues that the district court committed reversible error when it denied her continuance motion made on the opening day of trial. She claims she needed the extra time to secure legal assistance; therefore the denial infringed her sixth amendment right to counsel.

Generally, a decision to grant or deny a continuance is reviewed for an abuse of discretion. United States v. Flynt, 756 F.2d 1352, 1358, modified on other grounds, 764 F.2d 675 (9th Cir.1985). When the defendant's sixth amendment right to counsel is implicated, however, a court must balance several factors to determine if the denial was "fair and reasonable." United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir.1979) (per curiam). Among the factors are: whether the continuance would inconvenience witnesses, the court, counsel, or the parties; whether other continuances have been granted; whether legitimate reasons exist for the delay; whether the delay is the defendant's fault; and whether a denial would prejudice the defendant. Id. Thus, a continuance may be denied "even when that denial results in the defendant's being unrepresented at trial." Id.

Applying these factors to this case, we find no abuse of discretion. At her initial appearance, Studley asked to be represented by a person who was not a licensed attorney. At that time, the district court told her that she could elect to represent herself but that anyone else representing her in court must be licensed. The court later asked the Federal Public Defender to consult with her regarding appointment of counsel. The public defender determined that Studley did not qualify for appointed counsel. Thereafter, based on Studley's representation that she would choose either to represent herself or to The following week Studley again asked to be represented by unlicensed counsel, and the court again denied the request, though it permitted her to have an unlicensed assistant sit with her at trial.

retain counsel, the court continued the matter for a week.

Studley then filed 31 motions and asked for another continuance, which the court granted. Trial was set for six weeks later. During this period, Studley apparently made no attempt to secure counsel on her own or to inform the court that she had changed her mind concerning self-representation at trial.

On the morning of trial, more than three months after her arrest, Studley again requested a continuance on the grounds that she did not know the nature of the court's jurisdiction, that she needed counsel, and that complex issues remained unresolved. The district court denied the request, finding that the request had not been made in good faith, that the trial had already been continued several times, that the basis of the court's jurisdiction was clear and had been explained repeatedly, that the facts of the case were not complex, and that Studley would not have obtained counsel even had the continuance been granted. As in Leavitt, 608 F.2d at 1294, Studley knew of the need to get a licensed attorney for several months and had been granted previous continuances. Still, she failed to obtain counsel. Under these circumstances, the district court did not err in denying another continuance. It had already displayed admirable patience.

VI. RECUSAL

Following her conviction, Studley filed a motion for recusal alleging personal bias and prejudice against her. In her affidavit supporting the motion, she alleged that Judge Schwartz (1) knew that Internal Revenue Service (IRS) agents had perjured themselves, but did nothing; (2) had constantly deprived her of her "rights;" and (3) hated her without any cause. The district court denied the motion, and Studley objects. Denial of a motion for recusal is reviewed for an abuse of discretion. Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir.1984).

We first note that a motion for recusal filed weeks after the conclusion of a trial is presumptively untimely absent a showing of good cause for its tardiness. See 28 U.S.C. Sec. 144; cf. United States v. Hurd, 549 F.2d 118, 119 (9th Cir.1977) (per curiam) (motion filed on fifth day of trial "much too late"). Even assuming timeliness, however, we find no merit in...