United States v. Redfield

Decision Date23 March 1961
Docket NumberCr. No. 13324.
Citation197 F. Supp. 559
PartiesUNITED STATES of America, Plaintiff, v. LaVere REDFIELD, Defendant.
CourtU.S. District Court — District of Nevada

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Howard W. Babcock, U. S. Atty. for Dist. of Nevada, Las Vegas, Nev. (at present with the firm of Babcock & Sutton, Las Vegas, Nev.), Clyde R. Maxwell, Jr., Asst. Regional Counsel, I. R. S., San Francisco, Cal. (at present associated with the firm of Faulkner, Sheehan & Wiseman, San Francisco, Cal.), for the United States.

William O. Bradley, Grubic, Drendel & Bradley, Reno, Nev., for defendant.

ROSS, Chief Judge.

I. Preliminary Matters.

On October 28, 1960, a jury found defendant to be guilty on six counts of an eight-count indictment charging willful evasion of federal income taxes. On November 1, 1960, defendant, appearing pro se, filed a motion for new trial. On November 3, 1960, defendant, through his newly retained counsel, filed another motion for new trial, which motion, we take it, supersedes that filed on November 1, 1960. On November 10, 1960, at the request of defendant's counsel, this Court granted a continuance on the motion for new trial, on the ground that a proper resolution of the motion could not be made until such time as a transcript of the trial record could be made available both to counsel and to this Court. On February 21, 1961 and on March 1, 1961, the parties filed their respective memoranda of points and authorities in support of or in opposition to the instant motion. Oral argument was had on March 3, 1961, followed by the government's filing, per stipulation approved by this Court, additional documentation, namely, reports of psychiatrists, to which we refer infra.

To begin with, we note that a motion for new trial is addressed to the discretion of this Court. Naval v. United States, 9 Cir., 1960, 278 F.2d 611, 615; Straight v. United States, 9 Cir., 1959, 263 F.2d 811, 813; Adams v. United States, 9 Cir., 1951, 191 F.2d 206, 207; Eagleston v. United States, 9 Cir., 1949, 172 F.2d 194, 200, certiorari denied 1949, 336 U.S. 952, 69 S.Ct. 882, 93 L.Ed. 1107. Furthermore, it is well settled that motions for new trials are not favored. United States v. Costello, 2 Cir., 1958, 255 F.2d 876, 879, certiorari denied, 1958, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551, and that they should be granted only with great caution. United States v. Costello, supra, 255 F.2d at page 879; United States v. Pruitt, D.C.S.D.Tex. 1954, 121 F.Supp. 15, 17, affirmed 5 Cir., 1954, 217 F.2d 648, certiorari denied 1955, 349 U.S. 907, 75 S.Ct. 584, 99 L.Ed. 1243. Finally, we would point out that harmless error, that is, any error which does not affect substantial rights, shall be disregarded. Federal Rules of Criminal Procedure, Rule 52(a), 18 U.S.C. In other words, in order to prevail on this motion defendant must show that the errors at the trial, if any, were prejudicial to him. United States v. Evett, D.C.N.D. Cal.1946, 65 F.Supp. 151, 152; Union Electric Light & Power Co. v. Snyder Estate Co., D.C.W.D.Mo.1936, 15 F.Supp. 379, 382. And, the burden of demonstrating prejudicial error is on the defendant. United States v. Segelman, D.C.W.D.Pa.1949, 86 F.Supp. 114, 117; cf., United States ex rel Darcy v. Handy, 1956, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331 (habeas corpus proceeding, wherein the Supreme Court stated that the burden must be sustained "`not as a matter of speculation but as a demonstrable reality.'"); cf., Myres v. United States, 8 Cir., 1949, 174 F.2d 329, 332 (appeal), certiorari denied 1949, 338 U.S. 849, 70 S.Ct. 91, 94 L.Ed. 520; see also, United States v. Smith, D.C.D.C.1959, 179 F.Supp. 684, 686-687, which notes that a motion for new trial will be granted only "if the Court finds that there is a reasonable probability that there has been a miscarriage of justice * * *."

Before we proceed to apply these principles to the instant motion, we note that several points of error are alleged in the motion filed on November 3, 1960, but which were not alluded to either in defendant's memorandum or in his oral argument. Since he has not dignified these matters by way of supporting argument, we take it that he has waived them, as well he might, since they are clearly devoid of merit.1

II. Waiver of Right to Counsel.

The first point which defendant urges is that "defendant was not capable of competently and intelligently waiving his constitutional right to assistance of Counsel."

Although the Sixth Amendment to the United States Constitution preserves the right to be assisted by counsel, it is clear that said right may be waived. Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268; Johnson v. Zerbst, 1938, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461. Indeed, the constitutional right "does not justify forcing counsel upon an accused who wants none." Moore v. State of Michigan, 1957, 355 U. S. 155, 161, 78 S.Ct. 191, 195, 2 L.Ed.2d 167; Linden v. Dickson, 9 Cir., 1960, 278 F.2d 755, 763; MacKenna v. Ellis, 5 Cir., 1959, 263 F.2d 35, 41, certiorari denied 1959, 360 U.S. 935, 79 S.Ct. 1453, 3 L. Ed.2d 1546; United States v. Cantor, 2 Cir., 1954, 217 F.2d 536, 538. And, a conviction will be reversed if it appears that a trial court has compelled a defendant to be represented by counsel against his will. Reynolds v. United States, 9 Cir., 1959, 267 F.2d 235, 236; compare United States v. Cantor, supra, 217 F.2d at page 538, where the court observed that appointment of counsel amounted to "some curtailment of his right to proceed alone, and if any prejudice to the appellant was the result of that the judgment should be reversed."

There can be no doubt but that defendant had waived his right to assistance of counsel. On June 16, 1960, some two and a half months prior to the commencement of trial, a hearing was held in open court for purpose of arraignment, at which time this Court asked defendant whether he was represented by counsel, to which question defendant responded in the negative. Reporter's Transcript of Proceedings, vol. I, p. 4, lines 14-16 (hereinafter cited as Tr.). The Court specifically advised him that he had a right to be represented by counsel, Tr., vol. I, p. 4, lines 17-20, and then inquired as to whether defendant had sufficient funds with which to employ counsel. Tr., vol. I, p. 4, lines 21-22. Mr. Redfield responded by stating: "I do not wish representation." Tr., vol. I, p. 4, line 23. Within a moment or so, defendant again stated; "* * * I would prefer to represent myself." Tr., vol. I, p. 5, line 3. There then followed the following colloquy:

"The Court: Very well. It is your desire, then, that you not be represented, but that you represent yourself in this case?
"Mr. Redfield: That is my desire.
"The Court: And on the basis of that you have refused the Court's offer to appoint counsel for you?
"Mr. Redfield: Yes, your Honor."

Tr., vol. I, p. 5, lines 9-15.

There followed various hearings and informal conferences between defendant and this Court, all of which will be discussed presently. However, on the first day of the trial, October 4, 1960, the transcript shows the following:

"The Court: The record will indicate that the defendant, LaVere Redfield, has heretofore waived the right to have an attorney, and has elected to represent himself.
"Is that correct, Mr. Redfield?
"Mr. Redfield: That is so, your Honor." Tr., vol. I, p. 39, lines 24-25, p. 40, lines 1-3.

Since the record is crystal clear that there was a waiver of counsel, the remaining question is whether there has been a competent, intelligent and understanding waiver, which problem we shall deal with in Section III, infra. But, we must first consider defendant's argument, raised in his memorandum at page 6, that "the record in the case at bar does not establish that the Court made any determination as to whether or not the defendant competently and intelligently waived his right to Counsel." This argument was extended in the March 3, 1961 hearing, when defendant apparently took the position that a new trial was required because this Court allegedly did not make a finding of record. Indeed, if we understand him, defendant asserts that there was reversible error because this Court did not have a special hearing, presumably one akin to the hearing we have under 18 U.S.C. § 4244.

Should this Court determine at this time that defendant did not properly waive his right to assistance of counsel, then of course he is entitled to a new trial. But, it is quite another matter to ask for a new trial on the ground that there was no formal hearing and determination of record at the time defendant did waive his right.

Defendant relies heavily on the passing statement in Johnson v. Zerbst, 1938, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L. Ed. 1461, that "while an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record."

The Court of Appeals for the Ninth Circuit answered defendant's argument in the case of Widmer v. Johnston, 9 Cir., 1943, 136 F.2d 416, 418, certiorari denied 1943, 320 U.S. 780, 64 S.Ct. 92, 88 L.Ed. 468. There the Court noted that its attention had been directed to the passage quoted from Johnson v. Zerbst. It went on to hold, however:

"While it would doubtless be a better practice to record the fact of a determination of proper waiver of counsel, still the failure to do so does not negative that such determination was made. The recordation would go merely to the matter of proof." 136 F.2d at page 418.

We might agree with defendant had there been any indication at the time of his waiver that defendant was not possessed of his complete mental faculties. Under those circumstances, it may have been appropriate to have had a psychiatric hearing. But, in Hall v. Johnston, 9 Cir., 1939, ...

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