United States v. DePugh

• Decision Date: 23 February 1972
• Docket Number: No. 71-1062.,71-1062.
• Citation: 452 F.2d 915
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Bolivar DePUGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

452 F.2d 915 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Bolivar DePUGH, Defendant-Appellant.

No. 71-1062.

United States Court of Appeals, Tenth Circuit.

December 29, 1971.

Rehearing Denied February 23, 1972.

COPYRIGHT MATERIAL OMITTED

Victor R. Ortega, U. S. Atty. (Michael P. Watkins and Richard J. Smith, Asst. U. S. Attys., on the brief), for plaintiff-appellee.

James R. Toulouse, of Toulouse, Moore & Walters, Albuquerque, N. M., for defendant-appellant.

Before BREITENSTEIN, McWILLIAMS, and DOYLE, Circuit Judges.

BREITENSTEIN, Circuit Judge.

In this bizarre case the jury found defendant-appellant guilty of all nine counts of an indictment charging him with possession of silencers, a machine gun, and various types of grenades which had not been registered in the National Firearms Registration and Transfer Record as required by Chapter 53, Title 26, U.S.C. Ten-year concurrent sentences were imposed on each count.

Defendant asserts multitudinous errors relating to practically every facet of the trial. A brief recitation of the background facts is needed for an understanding of the problems.

By his own statement, defendant was one of the principal founders and the national coordinator of an organization known as the Minutemen which was formed to cope with a supposedly inevitable Communist takeover of the United States. In 1967, he was convicted of a federal firearms violation in the Western District of Missouri. In 1968, he and others were indicted in the Western District of Washington on a charge of conspiracy to rob banks. Defendant did not surrender to serve the Missouri sentence but, in the vernacular, went underground. He and various companions hid at Hesperus, Colorado, Pinos Altos, New Mexico, and probably other places, before appearing at Williamsburg, New Mexico, where a member of the group rented a house. Agents of the Federal Bureau of Investigation located defendant at Williamsburg and on July 12, 1969, arrested him under a warrant issued pursuant to the Washington indictment. On July 16 and 17, the rented premises were searched under a search warrant and a veritable arsenal of weapons and destructive devices was seized. He was thereafter indicted and tried in New Mexico on the charges with which we are concerned.

The prime claim on this appeal is that the defendant was denied Sixth Amendment rights because of the failure of the district court to appoint advisory counsel to assist him in his pro se defense. Consideration of the issue requires a rather detailed discussion of the surrounding circumstances.

At the time of the trial defendant was 47 years old. He was not an unsophisticated criminal defendant. He had been the accused in the following reported criminal cases: DePugh v. United States, 8 Cir., 393 F.2d 367; DePugh v. United States, 8 Cir., 401 F.2d 346; and United States v. DePugh, 8 Cir., 434 F.2d 548. He had six years of college level education, was a chemist by profession, and had been a successful businessman. He had published over 200 scientific articles, and more than 100 products had resulted from his work as a research chemist. According to his own testimony, he was an expert "in the fields of chemistry, demolition, and firearms."

The arrest occurred in the early evening of July 12. He was taken to Albuquerque where, at about 2:15 A.M. on the 13th, he was arraigned before a United States commissioner who appointed an attorney for him. After the return of the indictment, the district court promptly appointed an attorney for him. The attorney filed various motions, including one to suppress all the evidence obtained by the search. Later, the defendant appeared in court before Judge Bratton with his appointed counsel, Mr. Threet, who said that the defendant desired to appear pro se. The court fully explained to the defendant his right to have appointed counsel free of cost to him and said that he would be glad to hear from the defendant if he wanted another attorney. The defendant replied: "I don't believe that any other attorney would be any better for this situation than Mr. Threet has been." The court pointed out that "generally the same limitations as apply to an attorney would apply to you; that is as to the procedures and mechanisms, and all that; * * *."

Threet said: "it's not a question, I don't believe, of personality involved, it's a matter of tactics and trial tactics that Mr. DePugh desires to adopt for the purposes of this case." Defendant then said: "I realize my shortcomings in this matter, and it's with considerable reluctance that I make this choice. I feel that it is the lesser of two evils that I'm required to choose between." He then asked for the assistance of advisory counsel. The court said: "it's not feasible, at all, to have both counsel and defendant participate as lawyers in the trial of the case, and one try portions of it, and the other try portions of it." After further colloquy, the court inquired "you desire to conduct the entire trial yourself, is that correct, Mr. DePugh?" DePugh answered "Yes, sir." The case was later transferred to Judge Payne and the defendant renewed his request for advisory counsel. In denying the request, Judge Payne said "I want to renew the offer to appoint a lawyer for you." The defendant said that he wanted to conduct his own trial but needed legal assistance.

The court appointed investigators to assist in trial preparation. Through arrangements with the United States Marshal, the defendant had available a wellequipped law library. He was permitted to use his own secretary. He had practically unlimited use of the telephone and unlimited contact with his witnesses and investigators before and during the trial.

A reading of the record and the trial transcript convinces us that the government is right in saying that the defendant is "articulate, eloquent, and highly knowledgeable about legal matters." We do not have the case of an obstreperous defendant. The trial was conducted with dignity and decorum. The conduct of the defendant in the courtroom was exemplary. After conviction, and at defendant's request, the court appointed an attorney to handle the appeal. Defendant later replaced the appointed attorney with retained counsel of his own choice, and the retained counsel have presented the appeal to this court.

The Sixth Amendment gives to the accused in criminal proceedings the right "to have the Assistance of Counsel for his defense." Section 1654, Title 28, U.S.C., provides that in federal courts "the parties may plead and conduct their own cases personally or by counsel" as permitted by court rules. Rule 44(a), F.R.Crim.P., says that a defendant is entitled to have counsel "unless he waives such appointment." The Criminal Justice Act of 1964 provides for the appointment of counsel for the defendant in a criminal case "unless the defendant waives the appointment of counsel." 18 U.S.C. § 3006A(b).

The Supreme Court has said that the constitutional provision does not "require that under all circumstances counsel be forced upon a defendant." Carter v. Illinois, 329 U.S. 173, 174-175, 67 S. Ct. 216, 218, 91 L.Ed. 172; accord, Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309. The circuits have recognized the principle that "to compel a criminal defendant to be represented by counsel in all cases would conflict with his statutory and constitutional right to conduct and manage his own defense." Lowe v. United States, 7 Cir., 418 F.2d 100, 103, and cases there cited. A defendant "may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268.

The record shows that the defendant knowingly and voluntarily waived counsel. Having done this, he requested advisory counsel and the court denied the request on the basic premise of prevention of confusion. At the time, the record showed confusion because both the then appointed counsel and the defendant pro se had filed pre-trial motions. The courts have found no constitutional violation in the denial of advisory counsel. Lee v. State of Alabama, 5 Cir., 406 F.2d 466, 469, and cases cited at n. 6. In Bayless v. United States, 9 Cir., 381 F.2d 67, 71, where the defendant claimed an unconstitutional deprivation because of the appointment of advisory counsel, the court upheld the procedure. In some circumstances it may be wise to appoint advisory counsel. Mayberry v. Pennsylvania, 400 U.S. 455, 467-468, 91 S.Ct. 499, 27 L.Ed.2d 532 (concurring opinion of Chief Justice Burger).

In Leino v. United States, 10 Cir., 338 F.2d 154, 156, we said that "the exercise of the right to assistance of counsel is subject to the necessities of sound judicial administration." While Leino was concerned with waiver of right to counsel, the principle stated has application here. In our opinion the appointment of advisory counsel is discretionary with the trial court. In some instances it may be valuable and in other instances lead to confusion. In the case at bar the defendant wished to control the trial tactics and "to conduct the entire trial" himself. The tactics which he adopted took advantage of pro se representation. He alone was fighting the might of the government. He developed the lines of testimony which he wished. He gave under oath an eloquent narrative statement in defense of the case made by the prosecution. He made an equally eloquent plea in his closing argument to the jury. Having obtained the advantages which he sought, he now says through his retained counsel that an advisory counsel should have been appointed. We believe that the appointment of such counsel is discretionary with the trial court and that, in the final analysis, abuse of that discretion is to be determined by whether the defendant received a fair trial. Accordingly, we turn to a discussion of the claimed trial...