U.S. v. Treff, 89-4126

• Decision Date: 29 January 1991
• Docket Number: No. 89-4126,89-4126
• Parties: 31 Fed. R. Evid. Serv. 1263 UNITED STATES of America, Plaintiff-Appellee, v. Robert S. TREFF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 975

924 F.2d 975

31 Fed. R. Evid. Serv. 1263

UNITED STATES of America, Plaintiff-Appellee, v. Robert S. TREFF, Defendant-Appellant.

No. 89-4126.

United States Court of Appeals, Tenth Circuit.

Jan. 29, 1991.

Glen R. Dawson, Asst. U.S. Atty. (Dee Benson, U.S. Atty., and Richard N.W. Lambert, Asst. U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.

Mark D. Eibert, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colo., for defendant-appellant.

Before McKAY, SEYMOUR, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

In a four-count indictment Robert S. Treff was charged as follows: In Count I he was charged with an attempt to kill Carol M. Fay, an employee of the Internal Revenue Service, on account of her performance of her official duties, in violation of 18 U.S.C. Sec. 1114; in Count II Treff was charged with assault and intimidation of Carol M. Fay, a District Director of the Internal Revenue Service, a person designated in 18 U.S.C. Sec. 1114, on account of her performance of her official duties, and in the commission of such act used a deadly weapon, namely an incendiary device commonly known as a "Molotov cocktail," in violation of 18 U.S.C. Sec. 111; in Count III Treff was charged with using a "Molotov cocktail" during a crime of violence, to wit, assaulting, intimidating and attempting to kill Carol Fay, in violation of 18 U.S.C. Sec. 924(c)(1); and in Count IV he was charged with possessing a "Molotov cocktail" which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. Sec. 5861(d). A jury convicted Treff on all four counts. ¹

Treff was sentenced as follows: On Count I Treff was sentenced to fifteen years imprisonment; on Counts II and IV he was sentenced to five years imprisonment on each count to run concurrently with each other but consecutively to the term of imprisonment imposed on Count I; and on Count III Treff was sentenced to five years imprisonment to run consecutively to the sentences imposed on Counts I, II, and IV. The foregoing 25-year total federal sentences were ordered to commence upon completion of a 20-year state manslaughter sentence Treff was then serving which was previously imposed by a state court in Utah. Treff now appeals the federal convictions.

At trial, defense counsel conducted very limited cross-examination of the government's witnesses. He did not call any defense witnesses, and Treff himself did not testify. Such is mentioned at this point to show that all of the evidence at trial was presented by the government. A detailed statement of the government's evidence is not necessary. Suffice it to say that Robert Treff (Treff), his wife Jennifer, and Carol Fay all worked in the Salt Lake City office of the Internal Revenue Service. Treff was employed as a tax examiner from January 7, 1982 until October 1, 1985, when he quit. Fay was Treff's supervisor. Treff was passed over for several promotions and he blamed Fay for his failure to be promoted. At the same time, Treff was having domestic problems.

The government's evidence showed that on December 25, 1986 at about 9:00 p.m. Treff shot and killed his wife at their home in Orem, Utah. ² This was about a year after both parties had filed for divorce and at a time when the two were in a bitter child custody dispute. After the shooting, Treff took his two children to a motel in Midvale, Utah. He then drove approximately fifteen miles to Carol Fay's home in Salt Lake City, Utah, where he threw two "Molotov cocktails" on the roof of Fay's residence. ³

On appeal, Treff raises five issues: (1) that the district court erred in denying Treff his constitutional and statutory right to represent himself at trial; (2) that Treff did not receive effective assistance of counsel; (3) that the district court erred in admitting evidence that shortly before Fay's house was fire-bombed Treff had killed his wife; (4) that the district court erred in admitting evidence of a diary entry by Mrs. Treff that Treff had said that he wanted to kill Fay; and (5) that the evidence is insufficient to support the convictions on Counts I and II.

I. Treff's Right to Self-Representation

Treff first argues that he was denied his right to represent himself at trial. In this regard, all agree that a defendant in a criminal proceeding has a constitutional and statutory right to represent himself. See Faretta v. California, 422 U.S. 806, 814, 819-20, 95 S.Ct. 2525, 2530, 2533-34, 45 L.Ed.2d 562 (1975). ⁴ However, the waiver by a defendant of his right to counsel in a criminal proceeding must be "intelligent and knowing" and "made with his eyes open." United States v. Dinneen, 463 F.2d 1036, 1040 (10th Cir.1972). A defendant's waiver of his right to representation and his concomitant election to represent himself must be "clearly and unequivocally" asserted. United States v. Bennett, 539 F.2d 45, 50 (10th Cir.), cert denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976). The reason that a defendant must make an "unequivocal" demand for self-representation is that otherwise "convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel." Meeks v. Craven, 482 F.2d 465, 467 (9th Cir.1973), cited with approval by this court in United States v. Bennett, at 51.

It follows that if a defendant in a criminal proceeding makes an equivocal demand on the question of self-representation, he has a potential ground for appellate reversal no matter how the district court rules. If the district court denies defendant's equivocal demand to represent himself, the defendant, on appeal, will argue that his constitutional right to self-representation has been denied. And if the district court grants defendant's demand for self-representation, the defendant, on appeal, will argue that his waiver of his right to counsel was not intelligent, knowing and unequivocal. All of which is a form of the "cat and mouse" game mentioned in United States v. Padilla, 819 F.2d 952, 959 (10th Cir.1987) and in United States v. Gipson, 693 F.2d 109, 112 (10th Cir.1982), cert. denied, 459 U.S. 1216, 103 S.Ct. 1218, 75 L.Ed.2d 455 (1983).

As indicated, counsel are in substantial agreement as to what the law is on this matter, but they disagree as to the application of the law to the chronology of events leading up to trial. After the return of the indictment, the district court appointed counsel to represent Treff. The latter became dissatisfied with his appointed counsel, and the district court then appointed different counsel to represent Treff. Treff was not satisfied with the newly appointed counsel, and it would appear that at this juncture the district court was going to allow Treff to represent himself with appointed counsel serving in a "standby" capacity. Then there was a change in events. Treff's parents retained new counsel, a Mr. Bennett, who entered a general appearance for Treff, and indicated to the court that he would be prepared to try the case on the date scheduled. Appointed counsel was then allowed to withdraw. Our study of the record indicates that after Mr. Bennett's entry of appearance there was not any clear and unequivocal, intelligent and knowing, waiver by Treff of his right to counsel and the exercise of his concomitant right to self-representation. ⁵ We find no error when at the commencement of trial the district court ruled that Treff could not cross-examine the government's witnesses. ⁶ Indeed, it is a bit surprising that the district court allowed Treff to make an opening statement to the jury, which opening statement was eventually cut short when Treff accused the judge of being biased.

II. Ineffective Assistance of Counsel

As indicated, Treff's initial position is that he was denied his right to self-representation, and that he did not want to be represented by Mr. Bennett, but merely retained him as standby counsel. He then argues that Mr. Bennett's representation of him was constitutionally inadequate. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) there is a two-part test for determining whether a defense attorney's performance was so deficient that it violates the defendant's right to effective assistance of counsel. First, the defendant must show that his counsel's performance "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. Second, he must also show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068; acc'd Hopkinson v. Shillinger, 866 F.2d 1185, 1204-05 (10th Cir.1989).

There is no disagreement as to the law on this particular matter, but counsel take a different view of the facts and what those facts tend to establish. Mr. Bennett was retained by Treff's parents to represent Treff at trial. Mr. Bennett immediately moved for a continuance of the trial which was about three weeks off. The motion was denied. When the matter came to trial, Mr. Bennett again moved for a continuance, which motion was also denied. The district judge conducted the voir dire of the jury panel. Mr. Bennett, after conferring with Treff, exercised all his challenges to individual members of the voir dire.

It is true that Bennett's cross-examination of government witnesses was limited, if not nonexistent. In this regard, Bennett advised the district court, in the presence of the jury, that it was the desire of Treff that defense counsel not cross-examine any government witness or call any defense witnesses. The alleged omissions by defense counsel were based on direct instructions from the defendant and were part of the defendant's trial strategy....