U.S. v. Taylor

• Decision Date: 03 April 1978
• Docket Number: No. 77-1013,77-1013
• Citation: 569 F.2d 448
• Parties: 78-1 USTC P 9271 UNITED STATES of America, Plaintiff-Appellee, v. Loran L. TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 448

569 F.2d 448

78-1 USTC P 9271

UNITED STATES of America, Plaintiff-Appellee, v. Loran L. TAYLOR, Defendant-Appellant.

No. 77-1013.

United States Court of Appeals Seventh Circuit.

Argued June 15, 1977.

Decided Jan. 20, 1978.

Rehearing and Rehearing En Banc Denied Feb. 24, 1978.

Certiorari Denied April 3, 1978.

See 98 S.Ct. 1581.

Loran L. Taylor, South Bend, Ind., for defendant-appellant.

Kennard P. Foster, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before FAIRCHILD, Chief Circuit Judge, and PELL and BAUER, Circuit Judges.

BAUER, Circuit Judge.

Following a jury trial, defendant-appellant Taylor was convicted of twelve counts of federal tax evasion under 26 U.S.C. §§ 7202-03 on the basis of evidence showing that he failed to file personal income tax returns and to truthfully account for money withheld from his employee's wages for payment of Social Security taxes. On appeal, Taylor contends that the evidence was insufficient to support his convictions, and that the district judge erred by not disqualifying himself from presiding over the trial, by not dismissing the indictment on the ground that Taylor had not been timely arraigned, by denying Taylor's request that he be represented by unlicensed counsel, by permitting standby counsel to participate in the trial over Taylor's objection, by informing the jury that Taylor had asked to be represented by a disbarred attorney, and by not allowing Taylor to address the jury to refute allegedly prejudicial publicity printed in the course of the trial. We find none of Taylor's claims meritorious and affirm his convictions for the reasons noted below.

I.

With respect to Taylor's contention that the evidence presented at trial was insufficient to support his convictions, extensive discussion is unwarranted. Suffice it to say that Taylor's argument is frivolous, and that the evidence of his guilt is not only sufficient, but overwhelming when viewed in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

II.

Taylor's next contention that the district judge should have disqualifiedhimself for bias because he was named as a party defendant to an antitrust suit brought by Taylor against the American Bar Association and virtually every federal judge in the nation is likewise without merit and deserves little comment. We hold that, for the reasons noted in United States v. Corrigan, 401 F.Supp. 795, 797-98 (D.Wyo.1975), the district court correctly ruled that the conclusory allegations of bias contained in Taylor's affidavit of prejudice presented no legally sufficient basis for recusal under 28 U.S.C. § 144.

III.

Taylor's next argument that the district court erred in refusing to dismiss his indictment on the ground that he had not been timely arraigned merits only slightly more expansive treatment. Noting that he was arrested and taken before a United States Magistrate for admission to bail on July 29, 1976, but not arraigned until August 19, 1976, Taylor claims that the Government violated the ten-day time limit specified in the Speedy Trial Act for arraigning defendants charged by means of an information or indictment. According to Taylor, the mere fact that his arraignment occurred more than 10 days after his appearance before a United States Magistrate constituted a violation of the Act, which provides in relevant part:

"The arraignment of a defendant charged in an information or indictment . . . shall be held within ten days from the filing date . . . of the information or indictment, or from the date the defendant has been ordered held to answer and has appeared before a judicial officer of the court in which such charge is pending whichever date last occurs." 18 U.S.C.A. § 3161(c) (Cum.Supp.1977).

What Taylor's argument mistakenly assumes is that his appearance before the United States Magistrate at South Bend, Indiana for admission to bail triggered the running of the ten-day arraignment limit. Such was not the case for the indictment was pending in the United States District Court for the Southern District of Indiana, not in the Northern District which encompasses South Bend, the site of his arrest. As is clear from the face of the statute, the time limit for arraigning Taylor did not begin to run until he had been ordered held to answer "and ha(d) appeared before a judicial officer of the court in which (the) charge (was) pending." 18 U.S.C.A. § 3161(c) (Cum.Supp.1977) (emphasis added). Taylor's actual arraignment before Judge Noland of the United States District Court for the Southern District of Indiana was his first appearance before any judicial officer of that court. Accordingly, his arraignment was held within the time limit imposed by the statute.

IV.

We turn now to Taylor's principal claims on appeal, namely, alleged infringements of his constitutional rights under the Sixth Amendment. Taylor's first claim is that the Sixth Amendment entitled him to choose as his counsel one Jerome Daly, a person unlicensed to practice law. Taylor contends that the district court erred in holding that he was not entitled to unlicensed counsel and in denying Daly leave to represent him at trial. The second of Taylor's Sixth Amendment claims is an alleged violation of his right to self-representation as enunciated in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). According to Taylor, once he had been denied Daly's assistance and had elected to defend himself at trial, it was error for the district court to permit a licensed attorney appointed as standby counsel to participate in the trial over Taylor's objection.

In support of his first contention that the Sixth Amendment's guarantee of the assistance of counsel includes the right to representation by persons not licensed to practice law, Taylor relies largely on some dictum from Faretta indicating that it was not an uncommon practice for colonial defendants to be represented at trial by personal friends who had received no formal training in the law. See 422 U.S. at 820 n.16, 95 S.Ct. 2525. Taylor draws from the history of lay representation and the deep-seated colonial distrust of lawyers noted in Faretta the conclusion that the Founding Fathers must have deliberately employed the generic term "counsel" in the Sixth Amendment in order to encompass persons not licensed to practice law. In any event, says Taylor, Daly had received legal training and, notwithstanding the fact that he was disbarred from the practice of law in Minnesota, ¹ was qualified to represent Taylor at trial. Accordingly, Taylor concludes that the district court erred in refusing him Daly's assistance on the ground that Daly was not licensed to practice law in any State, as required by Rule 1 of the Local Rules of the United States District Court for the Southern District of Indiana. We disagree.

Although we are not unmoved by the sincerity of Taylor's plea for help of his friend, we cannot agree that, in guaranteeing criminal defendants the right to the assistance of "counsel" for their defense, the Sixth Amendment creates a constitutional right to representation by persons unlicensed to practice law. As we have indicated in an earlier opinion, Taylor's reliance on Faretta is simply misplaced. That case "does not hold that a defendant has the freedom of choice to select a nonlicensed person as his counsel" but merely that a defendant has "a constitutional right to represent himself and . . . proceed without counsel." United States v. Peterson, 550 F.2d 379, 381-82 (7th Cir. 1977). Moreover, Taylor's historical and linguistic analysis has been repudiated by every court that has considered the issue of whether the right to the assistance of "counsel" includes the right to representation by persons unlicensed to practice law. E. g., United States v. Grismore, 546 F.2d 844, 847 (10th Cir. 1976); United States v. Whitesel, 543 F.2d 1176, 1177-81 (6th Cir. 1976); United States v. Kelley, 539 F.2d 1199, 1201-03 (9th Cir. 1976); Turner v. ABA, 407 F.Supp. 451, 477-78 (E.D.Tex.1975). Indeed, the question is so well settled by now that further discussion seems to us fruitless. We reiterate our prior holding in United States v. Jordan, 508 F.2d 750, 753 (7th Cir. 1975), that Taylor was not constitutionally entitled to the assistance of unlicensed counsel and that the district court committed no error in refusing the request that Daly be allowed to represent Taylor at trial.

More extensive discussion is necessary for the second of Taylor's Sixth Amendment claims, namely, that the district court infringed Taylor's right of self-representation by permitting counsel appointed by the court to participate in the trial over Taylor's objection.

The facts underlying Taylor's claim are as follows: Following the court's pretrial ruling that Daly would not be allowed to represent Taylor at trial, the court inquired of Taylor whether he intended to retain duly licensed counsel or wished to have the court appoint an attorney to act on his behalf. Taylor responded that, although he felt unqualified to represent himself in the proceedings, he had no intention of securing licensed counsel and did not request that counsel be appointed for him. After determining that Taylor was validly waiving his right to the assistance of counsel and asserting his right to represent himself, the court then ruled that, in view of Taylor's statement that he believed himself unqualified to defend himself at trial, counsel would be appointed to serve as an adviser to the defendant and charged with the additional responsibility of seeing to it that all of the facts favorable to the defendant would be brought out at trial. Accordingly, standby counsel was appointed over the defendant's objection that the court had no right to force an attorney upon him in view of his right to represent himself under Faretta.

On the morning of the first day of trial, Taylor...