United States v. Warner

Decision Date20 July 1970
Docket NumberNo. 19743.,19743.
PartiesUNITED STATES of America, Appellee, v. Robert G. WARNER, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

Grove G. Sweet, St. Louis, Mo., for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., and Irvin L. Ruzicka, Asst. U. S. Atty., on brief.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

Rehearing En Banc Denied July 20, 1970.

GIBSON, Circuit Judge.

Robert G. Warner appeals from a jury verdict finding him guilty of five counts of aiding, abetting, counseling and advising the preparation and filing of false and fraudulent income tax returns in violation of 26 U.S.C. § 7206(2). The original indictment consisted of 14 counts of which the Government dismissed four and the jury acquitted on five. The Court imposed a sentence of 9 months in the custody of the Attorney General on each of the five counts on which conviction was had, the sentences to run concurrently. Warner appeared pro se in the District Court.

Defendant Warner was in the business of preparing income tax returns in the years 1964 through 1966 in North St. Louis County. On March 24, 1966 Jack Gastorf, Special Agent of the Internal Revenue Service, called at defendant's place of business pretending to be a baker with a working wife and submitted other fictitious information ostensibly to enable Warner to prepare Gastorf's income tax returns.

Several days later Special Agent Gastorf returned to pick up his returns and observed several discrepancies between the information submitted and the information recorded by Warner in the return warranting further investigation.

At the end of April 1966 Special Agent Gastorf called at Warner's home and identified himself as an IRS Agent. They proceeded to Warner's place of business where, with Warner's consent, Special Agent Gastorf removed all of the files and records connected with Warner's business. An indictment was returned against defendant on December 19, 1968.

The evidence presented by the Government at the trial in which Warner defended himself was relatively simple. A witness was called in connection with each count and in each case the witness identified a memorandum of income and expenses he had submitted to Warner for the purpose of having Warner prepare the tax return; the witness then denied knowledge of the source of discrepancies between the memorandum and the return. The discrepancies noted in the testimony usually involved simple increases in deductible expenses above those stated in the memorandum submitted by the client and/or similar reductions in gross income. Of the counts for which Warner was found guilty Counts II and III involved fraudulent understatements of $1000 in gross income for both 1964 and 1965 and an overstatement of business expense of $1000 on the 1965 return, Count IV involved a fraudulent understatement of $500 in gross income and an unwarranted and fraudulent deduction of $140, Count VI charged a fraudulent excess business expense deduction of $1850 and Count IX charged a fraudulent excess medical expense deduction of $240, a fraudulent and excess interest expense deduction of $100, and a fraudulent and excess miscellaneous deduction of $15.

Warner raises five allegations of error: (1) he was denied the right to effective assistance of counsel because he was not sufficiently informed of the functions of counsel to be able to make an informed and intelligent waiver of that right; (2) the judgments on Counts III, IV and IX are duplicitous; (3) the evidence on each of the counts is insufficient to sustain a conviction; (4) the indictment and exhibits 8 and 9 with IRS audit reports attached were erroneously sent to the jury room during the jury's deliberations; (5) both the trial judge and the prosecuting attorney improperly commented upon the failure of the defendant to testify in his own behalf.

1. The Sixth Amendment to the United States Constitution, of course, provides a defendant with the right to assistance of counsel. Included within this right is the right of a defendant to waive counsel. This right is implemented by 28 U.S.C. § 1654 and Rule 44, Fed.R.Crim.P. and has been recognized by the Supreme Court in Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 279, 63 S.Ct. 236, 240, 242, 87 L.Ed. 268 (1942):

"The short of the matter is that an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may * * * waive his Constitutional right to assistance of counsel. * * * (275)
* * * * * *
"The Constitution does not force a lawyer upon a defendant." (279, 63 S. Ct. 242).

While one may waive the right to assistance of counsel, "`courts indulge every reasonable presumption against waiver' of fundamental constitutional rights." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Care is required to ascertain that a waiver is voluntarily and intelligently made.

The defendant was twice interrogated as to his desire to waive counsel. At the arraignment it was noted that Warner was appearing without counsel. Judge Meredith inquired as to whether defendant had funds and defendant responded that he could make arrangements for an attorney but later said he wished to defend himself. Judge Meredith advised against a pro se defense and Warner acknowledged its shortcomings but insisted on so doing and at the same time expressed financial ability to hire a lawyer. Judge Meredith continued to attempt to dissuade defendant from a pro se representation, pointing out that a lengthy imprisonment was possible. Judge Meredith then suggested a continuation of one week but Warner desired to return to work in St. Augustine, Florida where he then lived and expressed a desire to have the matter handled that day. Thus, Warner waived counsel and entered a plea of not guilty.

Just prior to trial the court once again questioned Warner in regard to his desire to defend himself and clearly informed him that the court would appoint a lawyer if the defendant could not afford one. Nevertheless, defendant insisted upon defending himself.

Judge Meredith made an affirmative effort to dissuade Warner from representing himself and also offered appointment of counsel. A judge cannot (much as he might desire) insist that a defendant obtain counsel or accept appointment of counsel.

We think Warner's waiver of counsel was intelligently and understandingly made. Johnson v. Zerbst, supra, indicated that waiver would not easily be presumed but also stated at 464, 58 S.Ct. at 1023, "the determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." A divided court in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948) appears to require procedural exactitude in determining that a waiver of counsel was made with true understanding and intelligence. Von Moltke indicates that the defendant should be informed of the nature of the charges, the range of allowable punishments, possible defenses to the charges, and all other facts essential to a broad understanding of the whole matter.

The United States Courts of Appeals have not applied the broad language of Von Moltke literally. In Spanbauer v. Burke, 374 F.2d 67 (7th Cir. 1966), cert. denied 389 U.S. 861, 88 S.Ct. 111, 19 L. Ed.2d 127 (1967), which contains perhaps the most exhaustive study of the law of waiver of counsel as applied in the various circuits, the Court said, 374 F.2d at 72:

"It appears that federal courts have looked to the substance of the Von Moltke formulations, and not to its formulas. * * * and
* * * * * *
"* * * have * * * viewed the question of waiver of counsel as ultimately an issue, irrespective of the trial court\'s fulfillment of its Von Moltke duties, of whether the accused knowingly and intelligently chose to waive counsel."

Virtually the same appraisal of the law was made by this Court in Collins v. United States, 206 F.2d 918 (8th Cir. 1953).

In the case at bar, the defendant was fully aware of his right to counsel and was informed of the right to appointed counsel. He was aware of and acknowledged the perils of a pro se defense and was informed that a finding of guilty could result in lengthy imprisonment. Furthermore, in considering the "background, experience and conduct of" the defendant, it appears that he is relatively sophisticated, a high school graduate, and a tax law student. As a mature adult he should bear the responsibility for his own decision.

Although we believe that in most cases prudence would suggest a somewhat more exhaustive interrogation by the trial court to determine whether a waiver of counsel is intelligently and understandingly made, we believe the facts here indicate that the waiver was not handled in a perfunctory manner but sufficient inquiry was made to ascertain that this particular waiver of the assistance of counsel was intelligently and understandingly made.

2. Defendant next asserts that Counts III, IV and IX on which convictions were had were duplicitous and should, therefore, be reversed. The gravamen of this claim is that each of these counts properly charges that defendant knowingly aided and assisted in the preparation of a fraudulent tax return in violation of 26 U.S.C. § 7206(2) but that each count then erroneously went on to charge defendant with himself misrepresenting material facts on income tax returns which is a violation of 18 U.S.C. § 1001. Further, defendant asserts, Count IX failed to state that defendant's acts were willful as required by the statute.

There is very little substance to these allegations. It is true as defendant suggests, citing Missouri v....

To continue reading

Request your trial
68 cases
  • U.S. v. Wood
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 26, 1992
    ...Lacy v. Gardino, 791 F.2d 980, 987 (1st Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 284, 93 L.Ed.2d 259 (1986); United States v. Warner, 428 F.2d 730, 737 (8th Cir.), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1970), is unpersuasive given that the district court has already ......
  • United States v. Isaacs
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 19, 1974
    ...v. United States, 1 Cir., 356 F.2d 324, 331, vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034; United States v. Warner, 8 Cir., 428 F.2d 730, 735, cert. denied 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191; Greenbaum v. United States, 9 Cir., 80 F.2d 113, 116. In perjury c......
  • United States v. Skillman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 30, 1971
    ...United States v. Marttila, 434 F.2d 834 (8th Cir. 1970); United States v. Bennett, 428 F.2d 772 (8th Cir. 1970); United States v. Warner, 428 F.2d 730 (8th Cir. 1970); United States v. Fryer, 419 F.2d 1346 (8th Cir. 1970), cert. denied, 397 U.S. 1055, 90 S.Ct. 1399, 25 L.Ed.2d 672 (1970). W......
  • Faretta v. California, 73
    • United States
    • United States Supreme Court
    • June 30, 1975
    ...35, 41 (CA5); United States v. Sternman, 415 F.2d 1165, 1169—1170 (CA6); Lowe v. United States, 418 F.2d 100, 103 (CA7); United States v. Warner, 428 F.2d 730, 733 (CA8); Haslam v. United States, 431 F.2d 362, 365 (CA9); compare United States v. Dougherty, 154 U.S.App.D.C. 76, 86, 473 F.2d ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT