U.S. v. Wilhelm
| Decision Date | 29 November 1977 |
| Docket Number | Nos. 77-1568,77-1613 and 77-1614,s. 77-1568 |
| Parties | UNITED STATES of America v. WILHELM, Robert Eugene, Appellant. UNITED STATES of America v. ROBERTS, Edward A., Appellant. UNITED STATES of America v. HOUSER, Kenneth Lewis, Appellant. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Robert Eugene Wilhelm, pro se.
Edward A. Roberts, pro se.
Kenneth Lewis Houser, pro se.
James W. Garvin, Jr., U. S. Atty., John H. McDonald, Asst. U. S. Atty., Wilmington, Del., for appellee.
Before GIBBONS and VAN DUSEN, Circuit Judges, and FISHER, District Judge. *
These appeals challenge the validity of a ruling of the United States District Court for the District of Delaware denying three criminal defendants the right to be represented at trial by a person who was not a member of the bar of that court. These appeals are from judgment and probation-commitment orders imposed after guilty verdicts were returned in separate jury trials on multiple counts of separate informations, charging each defendant with multiple violations of 26 U.S.C. § 7205 (1970), 1 in that defendants had made false statements on withholding certificates (Form W-4) or withholding exemption certificates (Form W-4E) with their employer, Getty Refining and Marketing Company. 2 After the informations were filed on November 16, 1976, each defendant filed on November 24, 1976, a form giving notice of the appointment of "George A. Bomher" as his counsel "to assist said Defendant in defending himself . . . in this action," to which there was attached a copy of a contract between each defendant and Bomher, who was designated as "Advocate" and who contracted to assist the defendant in his defense of the criminal action. There was also attached an affidavit stating as follows:
Document 3 in Criminal Nos. 76-112, 76-113 & 76-114 (D.Del.).
Each defendant appeared for arraignment on November 24, 1976, without counsel admitted to the bar. The district court judge continued the arraignments for one week to permit the defendants to secure counsel admitted to the bar or to prepare to represent themselves.
On December 1, 1976, each defendant reappeared for arraignment and renewed his attempt to be represented by Mr. Bomher. On inquiry of Mr. Bomher, the court learned that he was not admitted to the bar of any court nor had he ever graduated from law school. 3 When the court refused to permit a non-lawyer to appear before it as defendants' attorney, each defendant elected to represent himself rather than to accept court-appointed counsel.
Following the entry of not guilty pleas, the court explained to the defendants that Mr. Bomher would be permitted to be in the courtroom with the defendants during the trial but that he would not be allowed "to act as a lawyer in the Courtroom" for the reasons stated in United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2924, 53 L.Ed.2d 1062 (1977). 4
The defendants filed identical pre-trial motions after arraignment, which were denied in United States v. Roberts, 425 F.Supp. 1281 (D.Del.1977).
The defendants were tried in February and March 1977. 5 At the beginning of each trial, each defendant attempted to read as part of his opening statement, and did file with the court, a likeworded "Defendant's Statement and Request to Take Notice," which reads in part as follows:
E. g., Document 30 in Criminal No. 76-112 (D.Del.).
The defendants were sentenced in April 1977 to three months in prison, to be followed by a probationary term of two-and-one-half years, on condition, inter alia, that defendants file proper withholding certificates with the employer and proper federal income tax returns for 1977 and 1978.
Each defendant, having filed a written Motion for Judgment of Acquittal at the close of the Government's case-in-chief, filed, post-trial, a Renewal of Defendant's Motion for Judgment of Acquittal claiming, inter alia, that the court erred
(1) in denying defendant's pre-trial motions and requests;
(2) in allowing his case to go to trial without defendant having received from the Government the discovery to which he was entitled;
(3) in failing to protect defendant's right to a fair and impartial jury trial when the court knew defendant lacked knowledge, training and experience to defend himself. 6
The defendants' principal contention is that the district court judgments should be reversed because they were denied their constitutional right to chosen counsel by the district court's refusal to permit them to be represented by a lay person. The Sixth Amendment to the United States Constitution provides in part that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." Defendants ask us to construe the Sixth Amendment's reference to "Counsel" as embracing any person of their choice, be he unskilled in the law or barred by the rules of court from practice before it. To so hold would profoundly alter the legal framework in which criminal proceedings are scrupulously conducted in our courts. We decline to do so.
Contemporaneous to the adoption of the Sixth Amendment and therefore reflective of its intended meaning, Congress enacted § 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, 7 which as codified at 28 U.S.C. § 1654 (1970) now provides:
"In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."
We recognize that in some colonies where the Quaker influence predominated, the right to plead pro se or by a friend was permitted. However, there is no suggestion in the ratifying debates that there was an intention to preserve this Quaker practice. To the contrary, the predominant historical practice of representation before English and colonial courts, 8 as well as the First Congress' passage of § 35 of the Judiciary Act of 1789, makes clear that the Sixth Amendment was not intended to guarantee defendants the right to be represented by friends who are not trained in the law nor authorized to practice before a particular court. Professional qualifications were assumed of all "counsel" chosen to represent defendants in criminal proceedings. Defendants have cited to us no authority to the contrary other than the sincerity of their beliefs. Thus, we join with the impressive array of United States Courts of Appeals that have uniformly rejected the contention that criminal defendants have a constitutional right to be represented by a friend who is neither a law school graduate nor a member of the bar. 9 We note that the defendants in the case at hand were informed of their now well established Sixth Amendment rights to be represented by court-appointed counsel if indigent 10 or to represent themselves. 11
The Supreme Court held in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), that a criminal defendant has a Sixth Amendment right of self-representation to voluntarily and intelligently reject court-appointed counsel and to proceed to defend himself without assistance of counsel. The defendants in this case argue that the Supreme Court's recognition of a constitutional right of self-representation implies a power to delegate representation to lay persons of their choosing. The defendants reason that if a defendant who is not a lawyer may serve as his own counsel, then other lay persons should be considered similarly qualified to serve as counsel. Defendants' contention is without merit.
Faretta did not hold that a lay defendant's right of self-representation was encompassed by the "assistance of counsel" clause. Rather, the Supreme Court discerned the right of self-representation as independently rooted in the structure of the Sixth Amendment, which personally guarantees the defendant the rights to be "informed of the nature and cause of the accusation" and to be "confronted with the witnesses against him." 422 U.S. at 819-20, 95 S.Ct. at 2533. Thus, Faretta recognized two independent Sixth Amendment rights of representation the right of self-representation and the right to assistance of counsel. There is no comparable Sixth Amendment source of a right to delegate the power of self-representation to lay persons who do not qualify to render the assistance of counsel. 12
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