U.S. v. Willie, Nos. 90-2028

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before ANDERSON, SETH and EBEL; STEPHEN H. ANDERSON; EBEL
• Citation: 941 F.2d 1384
• Docket Number: Nos. 90-2028,90-2041
• Decision Date: 12 August 1991
• Parties: -5371, 91-2 USTC P 50,409, 33 Fed. R. Evid. Serv. 1113 UNITED STATES of America, Plaintiff-Appellee, v. Wesley WILLIE, Defendant-Appellant.

Page 1384

941 F.2d 1384 68 A.F.T.R.2d 91-5371, 91-2 USTC P 50,409,
33 Fed. R. Evid. Serv. 1113 UNITED STATES of America, Plaintiff-Appellee,
v.
Wesley WILLIE, Defendant-Appellant. Nos. 90-2028, 90-2041. United States Court of Appeals,
Tenth Circuit. Aug. 12, 1991.

Page 1386

Charles L. Barth, Asst. U.S. Atty., Las Cruces, N.M. (William L. Lutz, U.S. Atty., and Paula G. Barnett, Asst. U.S. Atty., Albuquerque, N.M., with him on the brief), for plaintiff-appellee.

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Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, N.M. (Wesley Willie, pro se, with her, on the briefs), for defendant-appellant.

Before ANDERSON, SETH and EBEL, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Wesley Willie appeals his conviction in district court of four counts of failure to file income tax returns for the years 1982 to 1985 in violation of 26 U.S.C. § 7203. We affirm.

Wesley Willie, a Native American, filed personal income tax returns in 1975, 1976 and 1977, receiving a refund in each year. He did not file in 1978 and filed a zero return in 1980. From 1982 to 1985, Willie also failed to file although he earned a substantial income each year ¹ working on large commercial construction projects at various locations throughout the United States, far from his mailing address at the Navajo Nation in New Mexico. On his W-4 forms required for employment, Willie claimed numerous exemptions to which he was not entitled to avoid the payment of taxes. The IRS mailed a number of notices to Willie's address regarding his lack of filing. Subsequently, this action was brought in district court and Willie was found guilty by jury and convicted on all four counts of willful failure to file tax returns. He now appeals that conviction.

Willie has filed two briefs on appeal, one submitted by counsel and one pro se. Through counsel he argues that: (1) he was denied his right to a speedy trial; (2) he was denied his right to effective assistance of counsel; (3) the trial court erred in prohibiting the introduction of his exhibits; and, (4) the prosecution exercised its peremptory challenge to exclude one of two Native American jurors in violation of Batson v. Kentucky. In his pro se brief, he argues further that: (1) he lacked sufficient notice of the elements of the offense charged; (2) the United States lacks jurisdiction over Native Americans to enforce the income tax laws against them; (3) the judge engaged in prejudicial misconduct; and, (4) his petition for Writ of Habeas Corpus was illegally suspended.

I.

RIGHT TO SPEEDY TRIAL

Willie claims that he was denied a speedy trial in violation of the Speedy Trial Act which requires that a defendant be brought to trial within 70 days of his arraignment. 18 U.S.C. § 3161(c)(1) (1985). Willie's trial began 227 days after his arraignment. However, certain periods of that time may be excluded in computing the allowable delay in commencing trial. 18 U.S.C. § 3161(h).

Delay resulting from the submission of any pretrial motion, "from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion," shall be excluded. 18 U.S.C. § 3161(h)(1)(F). Willie's first motion was filed on April 26. R. Docket Sheet, Doc. No. 2. The district court ruled on that and several subsequent motions without a hearing on June 7, but reserved consideration of Willie's motion to proceed pro se until it was "satisfied that Defendant fully recognizes the heavy duty that he undertakes in representing himself and, after being so advised, insists on representing himself." R.Vol. I, Tab 11. It is undisputed that the 44 days from the filing of Willie's first motion on April 26 to the court's disposition of all but the self-representation motion on June 7 should be excluded from the speedy trial calculation. The central question concerns the excludable time allowed for resolution of the pro se representation issue.

Willie argues that, although the court did not state that it was taking the motion under advisement on June 7, the motion was, in effect, taken under advisement to be ruled on at a later date. If under advisement, the maximum excludable delay for the court's determination is 30 days. 18 U.S.C. § 3161(h)(1)(J); see United States

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v. Hines, 728 F.2d 421, 426 (10th Cir.), cert. denied, 467 U.S. 1246, 104 S.Ct. 3523, 82 L.Ed.2d 831 (1984). We do not find, however, that the motion was taken under advisement. ² Rather, the motion was still pending until trial when the district court discussed the difficulties of self-representation with Willie and made its final determination allowing Willie to proceed pro se at trial, with his appointed attorney acting as standby counsel. By that time, the court had apparently satisfied itself that Willie understood the difficulties of self-representation and still wished to conduct his defense pro se.

Although it is preferable for the court to hear motions at the earliest possible time, the entire time between the filing until the conclusion of the hearing is excludable, regardless of whether the delay was "reasonably necessary." ³ Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 1876, 90 L.Ed.2d 299 (1986); United States v. Gonzales, 897 F.2d 1312, 1316 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991); United States v. Santoyo, 890 F.2d 726, 728 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2567, 109 L.Ed.2d 749 (1990); United States v. Stafford, 697 F.2d 1368, 1373 ns. 4, 5 (11th Cir.1983). Thus, the period from the filing of the first motion on April 26 to the court's final hearing and disposition of the representation motion at the beginning of trial on November 20 is excluded under 18 U.S.C. § 3161(h)(1)(F). United States v. Tranakos, 911 F.2d 1422, 1425-26 (10th Cir.1990); see United States v. Santoyo, 890 F.2d at 728; United States v. Stafford, 697 F.2d at 1374. Since only 19 days elapsed between the arraignment and the April 26 filing, Willie was not denied a speedy trial and we need not rule on his other speedy trial contentions.

II.

RIGHT TO REPRESENTATION BY COUNSEL

Willie argues that he did not make a knowing, voluntary and intelligent waiver of his right to counsel because he was inadequately informed of the hazards of self-representation. He also objects to the court's denial of his request near the close of trial for a substitution of his standby counsel without inquiry into the reasons for his dissatisfaction. R.Vol. III at 266-68. We disagree with both arguments.

A defendant has a constitutional right to waive his right to counsel and to represent himself at criminal trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Allen, 895 F.2d 1577, 1578 (10th Cir.1990). However, to be valid, the trial judge must ensure that the waiver of counsel is "an intentional relinquishment or abandonment of a known right or privilege." United States v. McConnell, 749 F.2d 1441, 1450-51 (10th Cir.1984) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Ideally, the trial judge should conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se. Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541; Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948); United States v. Allen, 895 F.2d at 1578; Sanchez v. Mondragon, 858 F.2d 1462, 1467 (10th Cir.1988). Regrettably,

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the district court did not fully discuss these issues with Willie on the record. However, such deficiencies do not prompt us to automatically reverse the conviction where the surrounding facts and circumstances, including Willie's background and conduct, demonstrate that Willie actually understood his right to counsel and the difficulties of pro se representation and knowingly and intelligently waived his right to counsel. United States v. Padilla, 819 F.2d 952, 958 (10th Cir.1987) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)); United States v. McConnell, 749 F.2d at 1451; United States v. Weninger, 624 F.2d 163, 164 (10th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980).

The record indicates that Willie did understand his right to counsel and effectively waived that right. At the arraignment, Willie was notified of the charges against him and of the potential penalties involved. R. Arraignment Tr. at 6. He then asserted in a subsequent petition "that he will not accept any court-appointed attorney and objects to any attempt by the judge to violate that right." R.Vol. I, Tab 6. In addition, Willie submitted at least ten pretrial pro se petitions to the court, including amended pleadings, a motion to deny the government's request for reciprocal discovery, a Petition in Abatement, two Motions to Dismiss, and two sets of jury instructions. Before the completion of jury selection at trial, the judge urged Willie to consult with his standby counsel given the difficulties of pro se litigation and the complexity of the legal process. ⁴ At that hearing, the court allowed Willie to represent himself, having apparently satisfied itself after observing Willie's conduct and reviewing his numerous petitions throughout the preceding months that Willie understood the difficulties of pro se representation and still insisted on representing himself. See R. Vol. I, Tab 11 (court refused to rule on motion to represent himself until satisfied that Willie understood the difficulties of such representation). Upon review of the record, we do not find that decision to be erroneous.

This case is similar to United States v. Weninger, 624 F.2d 163 (10th Cir.1980), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66...