U.S. v. Turnbull, 88-3148

• Decision Date: 07 August 1989
• Docket Number: No. 88-3148,88-3148
• Citation: 888 F.2d 636
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry A. TURNBULL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 636

888 F.2d 636

UNITED STATES of America, Plaintiff-Appellee, v. Larry A. TURNBULL, Defendant-Appellant.

No. 88-3148.

United States Court of Appeals Ninth Circuit.

Submitted Aug. 7, 1989 ^*.

Decided Oct. 31, 1989.

Larry Turnbull, Fairbanks, Alaska, pro se.

Neil J. Evans, Asst. U.S. Atty., Anchorage, Alaska, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before ALDISERT, ^** WRIGHT and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Larry Turnbull appeals the district court's judgment of conviction against him

for failure to pay income taxes. We affirm in part and vacate in part.

I

The United States asserted its authority over Turnbull in matters temporal by charging him with failing to render unto Caesar that which was due, in willful violation of the Internal Revenue Code. 26 U.S.C. Sec. 7201 (1982).

At Turnbull's initial appearance before the magistrate in Fairbanks, his arraignment was continued for a week. Turnbull then filed pleadings in the district court stating that he did not waive his right to counsel, but that his religious beliefs precluded him from using the services of any member of the bar. Turnbull stated his belief that the teachings of Jesus require him to avoid associating with lawyers. Turnbull requested that lay persons who shared his beliefs be appointed as his cocounsels. At his arraignment, Turnbull appeared without counsel and stood mute when asked to plead. The court entered a plea of not guilty on his behalf.

On March 16, Turnbull withdrew his motion asking for lay counsel. Magistrate Roberts held a hearing on March 29 regarding Turnbull's representation. Turnbull stated that he waived none of his rights, and contested the jurisdiction of the court. He repeated his religious objection to the services of a lawyer. The court examined him as to his level of understanding of the proceedings, and explained the advantages of trained counsel at some length. The court told Turnbull that it could not appoint lay counsel under the rules of the court. Since Turnbull declined to waive his right to counsel, but was unwilling to be represented by anyone the court could appoint, the magistrate appointed Federal Public Defender Michael Karnavas as Turnbull's "standby counsel," who would be available to Turnbull should he desire assistance, and who would be able to take over the defense should Turnbull be unable to continue it himself.

Between this decision and the trial date of May 3, 1988, Turnbull filed voluminous motions to dismiss, raising typical tax protestor arguments. All of these were denied. On May 3, Judge Fitzgerald inquired further into the counsel situation before allowing the trial to begin. Pursuant to Ninth Circuit law, the court was not willing to let Turnbull represent himself, even with standby counsel present, without a knowing and voluntary waiver of the right to counsel on the record. The court described the charges to Turnbull, again emphasizing the numerous benefits of the full assistance of counsel. Turnbull stated that he did not understand the charges, and again declined to waive his right to counsel. Judge Fitzgerald asked standby counsel Karnavas to sit at counsel table and conduct the defense.

No allegation is made that Karnavas was unprepared to conduct an adequate defense, or that he provided ineffective assistance. He did the best he could in the nightmarish position of representing a client who objected to his very presence on religious grounds, and refused to cooperate with him in any way. Karnavas cross-examined witnesses, made relevant objections, and made opening and closing statements. He did not put on any defense witnesses. The court offered numerous opportunities to Turnbull to participate in his own defense, but he refused each one because he said that Karnavas' presence prevented him from participating in the trial in any way.

The jury convicted Turnbull of all the charges, and he was sentenced to one year of imprisonment, probation, costs of prosecution, and special assessments. Turnbull timely appeals. Fed.R.Crim.P. 4(b). We have jurisdiction over this final judgment. 28 U.S.C. Sec. 1291 (1982). We review the questions of law raised by this appeal de novo.

II

Turnbull claims, inter alia, that the district court's appointment of Karnavas, and its failure to appoint lay counsel, violated his sixth amendment right to the effective assistance of counsel and his first amendment right to the free exercise of religion.

A. Sixth Amendment

A defendant has a constitutional right to represent himself. E.g., Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562 (1975). This right, however, is not absolute. Our recognition of the powerful advantage of competent counsel mandates extreme care in allowing pro se representation. A waiver of the right to counsel must be knowing and voluntary. Id. at 835, 95 S.Ct. at 2541; United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987). Balough sets forth the facts that the district court must establish on the record before it may accept a waiver. 820 F.2d at 1487-89. Here, Turnbull's statement that he did not understand the charges made a waiver impossible, even if he had in fact attempted one. See United States v. Gillings, 568 F.2d 1307, 1308-09 (9th Cir.) (per curiam), cert. denied, 436 U.S. 919, 98 S.Ct. 2267, 56 L.Ed.2d 760 (1978). If a defendant does not knowingly and voluntarily waive counsel, and does not retain acceptable counsel, the court must appoint counsel.

The district court therefore had no alternative to appointing counsel. The magistrate initially attempted something of a compromise by appointing Karnavas as standby counsel. Absent a knowing and voluntary waiver, the appointment of advisory counsel is not sufficient to meet sixth amendment requirements. United States v. Kimmel, 672 F.2d 720, 721 (9th Cir.1982). The elevation of Karnavas to full-fledged trial counsel before trial cured that error, however.

A district judge may allow "hybrid representation," in which the accused assumes some of the lawyer's functions, under certain circumstances. If the defendant assumes any of the "core functions" of the lawyer, however, the hybrid scheme is acceptable only if the defendant has voluntarily waived counsel. Id; see also Locks v. Sumner, 703 F.2d 403, 407-08 (9th Cir.) cert. denied, 464 U.S. 933, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983). Here, there was no waiver. The case must be distinguished from Kimmel, however. In Kimmel, the defendant formulated and presented his major defense himself. He represented himself without the necessary waiver. In this case, although Turnbull had the opportunity to participate, he did not. Karnavas presented the entire defense case at trial.

Turnbull suggests that the court should have appointed lay counsel. He argues that "counsel" does not necessarily mean "lawyer." Turnbull withdrew his motion asking for lay counsel, but did raise the issue orally before the magistrate. He did not ask Judge Fitzgerald for lay counsel. As the status of his request is unclear, we will dispose of the matter on the merits.

"Counsel" means "attorney". United States v. Hoffman, 733 F.2d 596, 599 (9th Cir.), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984). There is no right to lay counsel. United States v. Wright, 568 F.2d 142, 143 (9th Cir.1978). The District of Alaska Rules of Court permit only licensed attorneys to be admitted to the district court bar. D.Alaska R.Ct. 3 (1988).

The district court did not violate the sixth amendment by appointing counsel to conduct the defense of a person who did not voluntarily and knowingly waive his right to an attorney.

B. Free Exercise of Religion

The federal courts may not improperly burden the free exercise of religion. To show a free exercise burden that is unconstitutional, however, a claimant must do more than merely show that the government action in some way affected his religion. E.g., Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 108 S.Ct. 1319, 1325, 99 L.Ed.2d 534 (1988). Our interpretation of Supreme Court precedent is most succinctly set forth in Graham v. Commissioner, 822 F.2d 844, 850-51 (9th Cir.1987), aff'd sub nom. Hernandez v. Commissioner, --- U.S. ----, 109 S.Ct. 2136, 2148-49, 104 L.Ed.2d 766 (1989).

To show a free exercise violation, the religious adherent ... has the obligation to prove that a governmental [action] burdens the adherent's practice of his or her religion by pressuring him or her to Id., 822 F.2d at 850-51.

commit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates. [Citations omitted]. This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine.

Even assuming Turnbull meets this difficult test, to find a burden on the free exercise of religion to exist does not end the analysis. "[T]he government must accommodate the religious beliefs unless there is a compelling state objective for [the burdensome practice] in the particular case." Id. at 852. The Supreme Court and this circuit have found a variety of legitimate state objectives to be compelling interests that override free exercise claims. E.g., Lyng, 108 S.Ct. at 1324-27 (federal roadbuilding in Indians' sacred area upheld); see also, Graham, 822 F.2d at 852 (government interest in sound tax system).

The cases assessing free exercise challenges to court rules or practices are few, but helpful. In Gordon v. Idaho, the court held that the district court abused its discretion by dismissing an action because a plaintiff refused, in accordance with his religious beliefs, to swear an oath or make an affirmation. 778 F.2d 1397, 1399-1401 (9th Cir.1985). "The First Amendment's guarantee of the free exercise of religion requires that our...