U.S. v. Weninger
Decision Date | 22 July 1980 |
Docket Number | No. 79-1161,79-1161 |
Citation | 624 F.2d 163 |
Parties | 80-2 USTC P 9560 UNITED STATES of America, Plaintiff-Appellee, v. Roman G. WENINGER, Defendant-Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
Lee D. Foreman of Haddon, Morgan & Foreman, Denver, Colo., for defendant-appellant.
William C. Danks, Asst. U. S. Atty., Denver, Colo. (Joseph Dolan, U. S. Atty., Denver, Colo., with him, on brief), for plaintiff-appellee.
Before BARRETT, PECK * and SEYMOUR, Circuit Judges.
Weninger was convicted of a misdemeanor for failing to file federal income tax returns for the years 1973 and 1974 in violation of 26 U.S.C. § 7203. At trial, Weninger was permitted to appear pro se to conduct his defense. Weninger appeals to this court through an attorney, contending primarily that (1) his trial was conducted in violation of the Sixth Amendment because he was denied both the right to counsel and the right of confrontation, and (2) the trial court erred in denying his motion for a new trial in light of new evidence uncovered after the verdict. We affirm his conviction.
Weninger is a self-made millionaire. The evidence at trial documented that during 1973 and 1974, Weninger's income exceeded $180,000. Weninger told Dr. Currier, a court appointed psychiatrist who prepared a presentencing report, that he did not file tax returns as a deliberate protest against the condition of our country. In addition, Dr. Currier's report states that Weninger elected not to have an attorney represent him because "if he asked for help, people might think he was not sincere in his effort." Rec., supp. vol. I, at 8.
The Sixth Amendment provides a defendant with the constitutional right to defend against a criminal charge pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, the assertion of this right is conditioned on a knowing and intelligent waiver of the constitutional right to the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). To ascertain whether Weninger knowingly and intelligently waived his right to counsel, we must consider "the total circumstances of the individual case including background, experience and the conduct of the accused person." United States v. Warledo, 557 F.2d 721, 727 (10th Cir. 1977) (citing Johnson, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. 1461).
It is the duty of the trial judge to initially determine whether an intelligent and competent waiver of counsel has been made by the accused. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
Id. at 723-24, 68 S.Ct. at 323, 92 L.Ed. 309. We believe the evidence shows that Judge Winner discharged this duty in the present case.
When Weninger appeared to defend himself at trial, Judge Winner recognized that Weninger's "protest" defense was without merit and asked him, "if I give you time, will you hire a lawyer, Mr. Weninger?" Rec., vol. III, at 15. Weninger answered in the affirmative but stated that he would need "anything from 100 to 120 days" to retain counsel. Id. The judge denied this request as unreasonable and proceeded with the trial.
Shortly thereafter, the judge excused the jury and implored Weninger to hire counsel:
Rec., vol. III, at 31-33. After the recess, the following colloquy took place:
Id. at 34-37 (emphasis added). The judge then apologized to the jury for the delay,...
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