United States v. Michael Curtiss , 330 F.2d 278 ( 1964 )

MARSHALL, Circuit Judge.

Appellant was convicted after a jury trial on his plea of not guilty to a two-count indictment charging evasion of personal income tax for the years 1955 .and 1956, in violation of 26 U.S.C. § 7201. He was sentenced to nine months imprisonment on each count, the sentences to run concurrently. A review of the record in this case convinces us that the totality of error deprived appellant of a fair trial and requires a reversal of the judgment.

Immediately prior to the trial defendant requested a conference which was held in the judge’s chambers. He complained that he had been in an automobile accident two months before and was not physically able to go to trial. After a series of questions by the judge as to the details of the accident and the extent of the alleged injuries, he asked Curtiss what he should do. Defendant replied by giving him a written “statement” concerning his efforts to have the Assistant U. S. Attorney agree to accept a plan for payment of the tax deficiencies in lieu of prosecution. To this, the judge explained that there was a difference between civil and criminal responsibilities. The following colloquy then took place:

“The Defendant: I don’t feel that I am guilty with intent, I feel I have erred.

“The Court: Well, there is the .situation, you have the choice of •either procedure, either to plead guilty, if you feel that that meets with your approval, or if you don’t think you are guilty, you do what anybody else does in similar circumstances, and put your position before the jury on the trial.

“The Defendant: All right, your Honor.

“The Court: That is what you are .at liberty to do. You have a right to have your say in the case, you can take the stand if you see fit and explain your position under the laws •of evidence, if it fits in with that, and do what any other defendant ■does. You are in no different position than any defendant before a «Court on a charge.

“The Defendant: The only difference, your Honor, is that I have been through quite an ordeal in the last few months with this, and this coming right on top of it.

“But I have no choice. O.K., I will go along.”

From the minutes of the conference it appears that defendant had had three attorneys during the pre-trial period, the last one being Marshall Kaplan who was appointed by the court. The judge stated that Mr. Kaplan had subsequently advised him that defendant did not want him as a lawyer and preferred to act as his own lawyer. However, the judge requested Mr. Kaplan to sit in the court and to be available to defendant for advice.

The trial followed immediately after the conference with the defendant representing himself and Mr. Kaplan seated at the table with him. The Government’s case consisted of several exhibits and oral testimony. There was some cross-examination and some objections to exhibits by defendant, all of which were overruled. The defendant did not testify and called only one witness, a man who had previously testified for the Government. At the conclusion of the trial, the judge stated:

“Let the record note the defendant is now conferring with Mr. Kaplan, whom the Court has assigned as a lawyer, and he has conferred with him throughout the trial, which he is entitled to do.”

Defendant’s inept efforts to make an opening statement, to object to offers of evidence, to question and cross-examine witnesses, and to sum up, leave no doubt that he was not adequately represented. Therefore, the sole question on this point is whether he intelligently waived his right to assistance of counsel and knowingly chose to represent himself. While we recognize the difficulties a trial judge faces in situations of this kind, we believe that the right to counsel in a federal criminal trial can only be waived after a clear-cut explanation of the defendant’s rights and an intelligent exercise of the choice.

“If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel”. Fed.R.Crim.P. 44.

Indeed, we must “indulge every reasonable presumption against waiver,” and cannot “presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See also: Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948).

There is nothing in the record to show an explanation of defendant’s right to counsel as set forth in Rule 44,¹ nor is there a clear cut election by defendant. At best, the court relied on a statement by Mr. Kaplan, made some time before the date of the trial, to the effect that Curtiss did not wish to avail himself of his services.² Curtiss’ statements indicate that while he was unhappy about his relationship with Mr. Kaplan, he certainly had no wish to try the case himself but felt that “he had no choice.” Of course the judge need not have appointed other counsel besides Mr. Kaplan unless Curtiss showed good cause, United States v. Gutterman, 147 F.2d 540 (2 Cir. 1945), but it was erroneous to require him to try his own case without a clear cut statement that he intelligently wished to do so.

Even if some doubt exists on the question whether defendant effectively waived his right to counsel, the judgment must be reversed because of improper statements made during the government’s summation, which take on special significance where, as here, the ■defendant has acted as his own attorney. During his summation, Curtiss several times sought to explain his business conduct and give excuses for his tax deficiencies. Each time, the judge on objection by the prosecution admonished him to confine his argument to the evidence. The prosecutor, when his turn ■came to address the jury, made the following comments:

“I say that this man here stands before you and he begs for your sympathy; he is strictly a faker, he is trying to pull the wool over your eyes, and you are not going to let him get away with it.

•X- * •Js- *X* *

“Ladies and gentlemen, I don’t see how there could be any mistake whatsoever, and I know that as intelligent jurors you are not going to permit him to stand before you and tell you bold face lies, not under oath, as the witnesses testified on the chair, each and every one of them were sworn, they testified under oath, but the defendant stood doion here and he asked a lot of questions.” (Emphasis supplied.)

Not only were these statements inflammatory and prejudicial to the defendant, but they in effect constituted a comment on his failure to take the stand, which itself is reversible error.

“The Fifth Amendment to the United States Constitution provides in unequivocal terms that no person may ‘be compelled in any criminal case to be a witness against himself.’ To protect this right Congress has declared that the failure of a defendant to testify in his own defense ‘shall not create any presumption against him.’ Ordinarily, the effectuation of this protection is a relatively simple matter — if the defendant chooses not to take the stand, no comment or argument about his failure to testify is permitted.” Stewart v. United States, 366 U.S. 1, 2, 81 S.Ct. 941, 6 L.Ed. 2d 84 (1961).

Appellant’s summation as his own attorney did not constitute a waiver of his Fifth Amendment protection. Nor could it be used as an excuse to disregard the admonition against “comment or argument about his failure to testify.” The government contends that defendant’s efforts to argue his case in summation with facts outside the record “left the Assistant United States Attorney no alternative except to let these arguments go unanswered or to answer them in his summation.” We do not agree. In a case involving unfair tactics of defense counsel, the Fifth Circuit stated:

“We are not impressed with the argument that the conduct of the prosecutor was caused by the conduct of defense counsel. A prosecutor should be immune to improper tactics. If he feels that his opponent has overstepped, the remedy is an appeal to the trial court — not in the adoption of unfair procedures.” Dugan Drug Stores, Inc. v. United States, 326 F.2d 835, 837 (1964).

When appellant argued outside the record, every objection by the prosecution was sustained with clear rulings by the judge that argument outside the record was not permitted and the jury was adequately charged on that point. The fullest protection was available to the prosecution. The cases cited by the government concerning arguments of counsel in reply to arguments of opposing counsel do not support the above comment on the failure of the defendant to take the witness stand. This cannot be viewed as harmless error. Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961); Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939); White v. United States, 114 U.S.App.D.C. 238, 314 F.2d 243 (D.C.Cir. 1962). Cf. Kyle v. United States, 297 F.2d 507 (2 Cir. 1961). This right is to be protected regardless of the crime charged or the weight of the evidence supporting the charge.

The judgment is reversed, and the cause remanded for a new trial.

1 . In a case involving defendant’s alleged waiver of right to be present during trial, Judge Wright of the Court of Appeals for the District of Columbia stated :

“This means that where the defendant is available, ‘the serious and weighty responsibility’ of determining whether he wants to waive a constitutional right requires that he be brought before the court, advised of that right, and then permitted to make ‘an intelligent and competent waiver.’ ” Cross v. United States, 325 F.2d 629, 631 (D.C.Cir. 1963).

2 . Much of the difference of opinion in this case concerns the interpretation of the colloquy in chambers between the trial judge, Curtiss, and Mr. Kelly, the prosecutor. In the interest of clarity, we set forth the relevant portion of the transcript :

“The Court: It is one of the oldest cases in this court, and you have had a great many different lawyers in the case ■ — I think four or five of them.

“Mr. Kelly: Well, I know of three.

“The Court: Three or four. And apparently you didn’t see fit to keep on with any of the lawyers, and it came to a point where we had to proceed for trial. It’s been on the calendar any number of times since the filing of the indictment, and finally I think it was last May when there had been so much delay in the case, and most of it because you weren’t ready to proceed for trial, that I assigned Mr. Marshall Kaplan to represent you. And Mr. Kaplan advised me sometime after that that you felt that you didn’t want Mm to act as your lawyer, and you wanted to act as your own lawyer; and under those circumstances I accepted your statement. You have a right to be your own lawyer.

“But just for your protection I have asked Mr. Marshall Kaplan to sit in court and to be available to you should you want any advice from him.

“Now, you have had every opportunity, a great deal more than seems to be the case with other situations. We can’t give different treatment to different defendants, we have to follow out the same procedures in all cases.

“But in this case I think we have done a groat deal more, and have had a great deal more lapse of time and discussion about these various situations than has been the ease heretofore, and we have other situations here in the court, and we just have to proceed normally and come to dispositions of cases.

“The Defendant: Well, your Honor, as far as Mr. Kaplan, I feel very strongly in Ms favor as far as it being very unfair to have Mm act at all, I imagine, because I have noticed a form of reluctance on his part. I don’t think he means it, but I do feel it as we talk. Then when I do ask Mm something, he shies away from me, he is reluctant — I don’t blame him, I mean I’d feel the same way he does.”