U.S. v. Whitesel

• Decision Date: 22 October 1976
• Docket Number: No. 75-1648,75-1648
• Citation: 543 F.2d 1176
• Parties: 76-2 USTC P 9726 UNITED STATES of America, Plaintiff-Appellee, v. Roger L. WHITESEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1176

543 F.2d 1176

76-2 USTC P 9726

UNITED STATES of America, Plaintiff-Appellee, v. Roger L. WHITESEL, Defendant-Appellant.

No. 75-1648.

United States Court of Appeals Sixth Circuit.

Argued Feb. 4, 1976.

Decided Oct. 22, 1976.

Roger L. Whitesel, pro se.

William W. Milligan, U.S. Atty., Ralph Winkler, David E. Melcher, Cincinnati, Ohio, for plaintiff-appellee.

Before EDWARDS, McCREE and LIVELY, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant Whitesel appeared before this court pro se to argue his appeal from conviction for failure to file income tax returns for the years 1972 and 1973, in violation of 26 U.S.C. § 7203 (1970), and for failure to supply information to the Internal Revenue Service for the same years, in violation of 26 U.S.C. § 7203 (1970), and for supplying false and fraudulent information about withholding exemptions to his employer, in violation of 26 U.S.C. § 7205 (1970). The case was tried to a jury before a District Judge in the United States District Court for the Southern District of Ohio and defendant was found guilty on all counts.

Appellant was sentenced to a total of two years imprisonment and a total fine of $1,500. The sentences by count were as follows:

Count 5: One year and $500 fine.

Count 1: Six months and $500 fine. Both consecutive to Count 5.

Count 2: Six months consecutive to Count 5 and concurrent with Count 1 and a fine of $500 remitted.

Count 3: Six months consecutive to Counts 1 and 5 and a fine of $500 in addition to Counts 1 and 5.

Count 4: Six months concurrent with Count 3 and consecutive to Counts 1 and 5 and a fine of $500 remitted.

The facts proved before the District Court established that in 1972 Whitesel filed an IRS 1040 Individual Tax Return containing on page 1 of the return: "Under protest. I plead the Fourth and Fifth Amendments and the United States Constitution." In 1973 no financial information was provided, but on the form defendant printed: "Object, see attachments," and submitted 170 pages of protest material concerning the income tax system. Defendant's wife filed separate returns.

On August 4, 1972, defendant filed with his employer, Valley Sheet Metal Works, Inc., an exemption from withholding Form W-4(e) in which he stated that he had incurred no liability for a federal income tax for 1971 and anticipated incurring no income tax liability for 1972. Thereupon the employer stopped withholding sums from defendant's pay check but also consulted the Internal Revenue Service about the matter which led to this prosecution.

The government also introduced W-2 forms showing defendant's gross wages for 1971 to have been $16,634.56; for 1972, $19,403.42; and for 1973,.$19,868.58. An IRS accountant testified that assuming these gross wages, defendant should have paid a tax of around $4,500 for 1972 and something over $5,000 for 1973, these figures apparently being based on standard deductions. Actually, in 1971 the government record shows that $3,357.40 was withheld for that year, and after filing a return, the defendant received a refund of $41.19.

The issues in this taxpayer protest suit represent an attack on the present tax system of the United States, its monetary system, and its system of justice.

First, and of principal concern to this court, appellant contends that he has been deprived of his Constitutional right to chosen counsel by the District Judge's refusal to allow him to be represented at his trial by an accountant, not a lawyer or a member of the bar, named George W. Thiel. The District Judge did, however, inform appellant that if he didn't have the funds, counsel would be appointed for him and that under the recent decision of the United States Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), he had the right to represent himself and if he chose to do so, he could have Mr. Thiel at the counsel table with him advising him, but Mr. Thiel would not be allowed to participate in the trial. It is appellant's contention, however, that the Sixth Amendment right to "counsel" did not in 1789, and does not now, pertain to members of the bar, but should be construed as allowing for the advice and participation of a friend of the accused who is not a lawyer. This argument has decisively been rejected by three of the Courts of Appeals which have considered the issue.

The Fifth Circuit dealt with this issue in United States v. Cooper, 493 F.2d 473 (5th Cir.), cert. denied, 419 U.S. 859, 95 S.Ct. 108, 42 L.Ed.2d 93 (1974), where the court stated:

There is no colorable merit in the proposition that a criminal defendant (especially one who has twice rejected the services of qualified and competent court-appointed counsel) is constitutionally vested with the right of assistance or representation by a lay person.

United States v. Cooper, supra at 474.

The same result was reached by the D. C. Circuit in even stronger language in Harrison v. United States, 128 U.S.App.D.C. 245, 387 F.2d 203 (1967), rev'd on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1967):

The Sixth Amendment pledges that "(i)n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence." This adjuration necessitates "the guiding hand of counsel at every step in the proceedings against him," including "the giving of effective aid in the preparation and trial of the case." It is clear that these demands are not satisfied when the accused is "represented" by a layman masquerading as a qualified attorney; it is unthinkable that so precious a right, or so grave a responsibility, can be entrusted to one who has not been admitted to the practice of the law, no matter how intelligent or well educated he may be. This is particularly so where, as here, the accused is on trial for an offense upon conviction of which his very life could become forfeit.

Harrison v. United States, supra at 212.

Similar results were reached in United States v. Jordan, 508 F.2d 750 (7th Cir.), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 62 (1975), and McKinzie v. Ellis, 287 F.2d 549 (5th Cir. 1961). See also Turner v. American Bar Ass'n, 407 F.Supp. 451, 477-78 (W.D.Wis.1975).

Nonetheless, the question posed by this appeal remains open for our consideration, since it has never been passed upon either by this court or by the United States Supreme Court. In fact, as appellant points out, in the Supreme Court's most recent construction of the Sixth Amendment, wherein it upheld a criminal defendant's right to self-representation, it employed language which suggests that there may well be a distinction between the term "counsel" as used in the Sixth Amendment and the term "attorney-at-law."

The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of lawyers. When the Colonies were first settled, "the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King's Court, all bent on the conviction of those who opposed the King's prerogatives, and twisting the law to secure convictions." This prejudice gained strength in the Colonies where "distrust of lawyers became an institution." Several Colonies prohibited pleading for hire in the 17th century. The prejudice persisted into the 18th century as "the lower classes came to identify lawyers with the upper class." The years of Revolution and Confederation saw an upsurge of antilawyer sentiment, a "sudden revival, after the War of the Revolution of the old dislike and distrust of lawyers as a class." In the heat of these sentiments the Constitution was forged. Faretta v. California, 422 U.S. 806, 826-27, 95 S.Ct. 2525, 2537, 45 L.Ed.2d 562 (1975). (Footnotes omitted.)

We do not read these words (as appellant would have us do) as determining that any defendant can choose any person he wishes, regardless of qualification, to be his counsel in the trial of a criminal case. But they do suggest our careful examination of the issue.

The Sixth Amendment provides in part that in all criminal prosecutions "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." Critical to any interpretation of this language is Section 35 of the Judiciary Act of 1789 (1 Stat. 73) which was adopted by Congress almost contemporaneously with its proposal of the Sixth Amendment. ¹

Sec. 35. And be it further enacted, That in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein.

Judiciary Act of 1789, Ch. 20, § 35, 1 Stat. 92 (Now codified as 28 U.S.C. § 1654 (1970)).

This statute has recently been cited and relied on by the United States Supreme Court in upholding the Sixth Amendment right of an accused to elect to defend himself. Faretta v. California, supra. No suggestion of conflict between the meaning of the Sixth Amendment and Section 35 is advanced in the briefing of this appeal, nor has our research developed any. Assuming, as we do, that the Sixth Amendment was adopted to make constitutionally secure in criminal cases rights already existing in the recently adopted statute, two applicable principles emerge from construction of the "assistance of counsel" guaranteed by the Sixth Amendment. First, since in the statute the terms "counsel or attorneys at law" are employed alternatively, it seems probable that the proposers of the Sixth Amendment did not mean to limit representation exclusively to "attorneys at law." Second, the statute clearly provides for the rules of the courts of the United States to determine who shall "be permitted to manage and conduct causes therein." By this language Congress recognized the constitutional power given the federal judiciary by the then recently adopted ...