U.S. v. Walsh, 83-1544

• Decision Date: 14 September 1984
• Docket Number: No. 83-1544,83-1544
• Citation: 742 F.2d 1006
• Parties: 84-2 USTC P 9873 UNITED STATES of America, Plaintiff-Appellee, v. Robert H. WALSH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1006

742 F.2d 1006

84-2 USTC P 9873

UNITED STATES of America, Plaintiff-Appellee, v. Robert H. WALSH, Defendant-Appellant.

No. 83-1544.

United States Court of Appeals Sixth Circuit.

Argued Aug. 20, 1984.

Decided Sept. 14, 1984.

Charles A. Grossmann, argued, Flint, Mich., for defendant-appellant.

Robert Walsh, pro se.

Robert W. Haviland, Asst. U.S. Atty., Marc L. Goldman, Asst. U.S. Atty., Flint, Mich., Leonard R. Gilman, U.S. Atty., Detroit, Mich., Wayne F. Pratt, argued, Farmington, Mich., for plaintiff-appellee.

Before ENGEL and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

PER CURIAM.

Robert H. Walsh was convicted of one count of willfully failing to file an income tax return for 1980 in violation of 26 U.S.C. Sec. 7203 and two counts of filing false exemption certificates in violation of 26 U.S.C. Sec. 7205. At trial, Walsh based his defense on his belief that the income tax is unconstitutional. He appeals claiming that he was denied the right to self-representation.

About a month before trial, Walsh filed a motion seeking to defend himself pro se, "provided that standby advisory legal counsel is appointed to be available to Defendant for assistance." The District Court granted the motion in an order prepared by defense counsel that provided that all of defendant's motions or pleadings should first be presented to the advisory counsel.

During the trial, the court admonished Walsh several times outside the presence of the jury to consult with the advisory counsel to establish the correct legal procedure. Walsh, however, was able to file many pretrial motions, and to introduce evidence in the trial. The jury convicted Walsh of all the charges. Walsh was sentenced to two consecutive one-year terms of imprisonment, followed by five years of probation in lieu of a one-year suspended sentence. Walsh then filed a notice of appeal to this Court.

Walsh contends that the trial court's "requirement that he must use the advisory counsel and screen all motions through counsel was a limitation on his right to be his own attorney." The Supreme Court has recently in McKaskle v. Wiggins, --- U.S. ----, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), discussed when the participation of advisory standby counsel infringes a defendant's right to conduct his own defense, recognized in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

In McKaskle, the Court identified two limitations on advisory counsel participation. "First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury." 104 S.Ct. at 951. "Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself." Id.

In this case, Walsh made no showing that the participation of his advisory counsel undermined the jury's perception of his exercise of his Faretta right. The admonitions of the trial judge that Walsh quotes in his brief all took place outside the presence of the jury. Moreover, all of the admonitions appear to have involved Walsh's need for assistance in procedural matters. McKaskle states that the right to self-representation is not violated when...