U.S. v. Yagow

• Decision Date: 08 January 1992
• Docket Number: No. 91-1237,91-1237
• Citation: 953 F.2d 427
• Parties: Bankr. L. Rep. P 74,407 UNITED STATES of America, Appellee, v. Merlyn A. YAGOW, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 427

953 F.2d 427

Bankr. L. Rep. P 74,407

UNITED STATES of America, Appellee, v. Merlyn A. YAGOW, Appellant.

No. 91-1237.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 26, 1991.

Decided Jan. 8, 1992.

William Kirschner, Fargo, N.D., argued, for appellant.

Norman George Anderson, Fargo, N.D., argued, for appellee, Lynn C. Jordheim, Fargo, N.D., on the brief.

Before JOHN R. GIBSON, Circuit Judge, HEANEY and BRIGHT, Senior Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Merlyn Yagow appeals his conviction on eleven counts of bankruptcy fraud in violation of 18 U.S.C. § 152 (1988). A jury found Yagow guilty on six counts of concealing assets of the bankruptcy estate, three counts of lying under oath about the location of the assets, and two counts of making false statements under penalties of perjury. On appeal, Yagow argues that: 1) his conviction must be reversed because he did not make a knowing and intelligent waiver of his right to counsel when he chose to represent himself during the first day of trial; and 2) the district court erred by failing to dismiss the two false statement counts because the statements were neither "material" nor "in relation to" a bankruptcy case as required by 18 U.S.C § 152. We affirm the judgment of the district court.

Yagow, a North Dakota farmer, obtained loans from the Production Credit Association by granting the lender a security interest in his farm machinery and equipment. He defaulted on his loan payments, and Production Credit moved to repossess the machinery. After the county sheriff started the repossession pursuant to a court order, Yagow filed for bankruptcy under chapter 11. Authorities halted the repossession, and the bankruptcy court ordered the equipment returned to Yagow pending the outcome of the proceedings, with the direction that Yagow not dispose of the machinery without court approval.

Yagow failed to file a reorganization plan in the 120-day exclusive period allotted to the debtor. Several months later, Production Credit and other creditors filed a liquidation plan that the bankruptcy court approved over Yagow's objections in April 1986. The court appointed Edward Melroe liquidating trustee and granted him the authority to take possession of all of Yagow's nonexempt property and sell it.

At a May 1986 hearing, the bankruptcy court made clear to Yagow that he must abide by the court's orders concerning the liquidation even though he continued to express his disagreement with them. Three months later, following Yagow's continued refusal to cooperate with the trustee, the district court warned Yagow that the bankruptcy court's order was in full force and effect and gave him two weeks to turn over his property to the trustee. Yagow failed to do so, and the court jailed him for contempt. The court released him two months later even though Yagow still had not complied with the court's order.

Production Credit conducted a Rule 2004 examination of Yagow in June 1987. Yagow stated under oath that he did not know the location of any of the machinery. In August 1988, Production Credit interrogated Yagow before Magistrate Karen Klein. Yagow once again stated under oath that he did not know where any of the machinery was located. He also denied knowing whether any of the machinery was located on other farms near his property. At the end of the interrogation, the magistrate reminded Yagow that his testimony was given under penalty of perjury and that knowing concealment of property from the bankruptcy court is a criminal offense. Following these warnings, Yagow again stated that he did not know where the property was located and had done nothing to dispose of it.

After being indicted in September 1989 on eleven counts of bankruptcy fraud, Yagow disappeared. About ten months later, the FBI arrested him near Valley City, North Dakota. At his subsequent arraignment, Yagow refused to cooperate and had to be brought into court lying on a cart. He turned his back on the magistrate when she advised him of his rights and he refused to enter a plea. At a detention hearing two days later, Yagow said he "want[ed] to be in charge of everything that proceeds." He referred to his appointed attorney as "co-counsel."

Before trial, Yagow filed two documents, one a "notice" to the United States Attorney's Office and one a motion to the district court. Both documents alleged that the court was without jurisdiction to try him.

Four days before the trial, Yagow filed a motion to dismiss his appointed attorney, William Kirschner. On the morning of trial, the court held a hearing on the motion, at which Yagow stated that his attorney was "not very compatible" with him. The court told Yagow: "[Y]ou, of course, have an absolute right as a defendant to represent yourself, and I am, of course, going to allow you to do so...." The court then ordered Kirschner to remain in the courtroom as a "resource" for Yagow but not to speak or do anything unless requested by Yagow. After the court explained the arrangement to Yagow, he reiterated that he wished to represent himself. The court did not engage in any further inquiry with Yagow regarding his decision.

On the first day of trial, Yagow refused to participate in jury selection or to make an opening statement. He did not cross-examine either of the two government witnesses and lodged no objections other than to repeatedly assert that the court lacked jurisdiction because there was no legitimate "moving party" and because the criminal charges against him were not "derived from" a preceding civil matter. The court acknowledged these objections and stated that they would be preserved for the purpose of appeal.

The first of the two government witnesses, an attorney for Production Credit, described the items in which Production Credit held a security interest and the lender's inability to locate the collateral. Melroe, the liquidating trustee, described his unsuccessful trips through neighboring areas to locate the missing collateral, recounted Yagow's warnings not to enter his property, and described a trench dug around Yagow's yard to thwart removal of any collateral.

Yagow made no response when the court asked him if he wanted to cross-examine Melroe. Earlier, when the court had asked the same question regarding the Production Credit witness, Yagow replied: "Oh, I'd love to, but I think I'll reserve it for the civil court."

On the second day of trial, before the jury returned, Yagow told that judge that he had made a "change" and now wished to retain Kirschner as his "co-counsel." Kirschner functioned as Yagow's attorney for the remaining two days of the three-day trial. Kirschner cross-examined the remaining government witnesses, including some neighbors who testified that they had concealed or stored Yagow's machinery on their property at his request. The court denied Kirschner's request that subpoenas be issued to compel the first day's witnesses to return to court.

Kirschner put several defense witnesses on the stand, including the representative of a creditor who testified that he had had no difficulty locating a truck of Yagow's that his company repossessed. The jury found Yagow guilty on all eleven counts, and the court sentenced him to twenty-one months in prison, followed by a two-year period of supervised release. The court also ordered Yagow to turn over to Production Credit the property on which it holds a mortgage and to pay to the court a special assessment of $550. This appeal followed.

I.

Yagow's attorney argues that his client's conviction must be reversed because the district court failed to make any inquiry as to whether Yagow had knowingly and intelligently waived his right to counsel on the first day of trial. Yagow's attorney asserts that the failure of the district court to do so is particularly egregious since Yagow's "statements should have put the Court on notice that it was questionable whether the defendant was competent" to make a valid waiver.

The government argues that Yagow, by his insistence on self-representation and by his refusal to participate in the first day's proceedings, made a valid waiver of his right. Requiring the court to advise Yagow of the perils of self-representation under such circumstances "would be an exercise in futility," the government asserts.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that an accused has the right under the sixth amendment to conduct his own defense. Id. at 818-21, 95 S.Ct. at 2532-34. Because the defendant exercising this right necessarily relinquishes the usual benefits associated with the right to counsel, he must make a knowing, intelligent and voluntary waiver. Id. at 835, 95 S.Ct. at 2541; United States v. Christian, 861 F.2d 195, 197 (8th Cir.1988), cert. denied, 493 U.S. 843, 110 S.Ct. 131, 107 L.Ed.2d 91 (1989). Although the defendant need not possess a lawyer's skill and experience to validly elect to represent himself, "he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942)); see also Patterson v Illinois, 487 U.S. 285, 108 S.Ct. 2389, 2395, 101 L.Ed.2d 261 (1988).

Acknowledging "the enormous importance and role that any attorney plays at a criminal trial," the Supreme Court has "imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him [to] waive his right to counsel at trial." Patterson, 108 S.Ct. at 2398 (citing Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541-42).

Because the defendant who forgoes the right to counsel is abandoning the right that " 'affects his ability to assert any other...