United States v. Beverly

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2478
UNITED STATES,
Appellee,
v.
ROBERT G. BEVERLY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
Before
Torruella, Cyr and Boudin,
Circuit Judges.
Robert G. Beverly on brief pro se.
Lincoln C. Almond, United States Attorney, James A. Bruton,
Attorney General, Robert E. Lindsay, Alan Hechtkopf and Scott A.
Schumacher, Attorneys Tax Division, on brief for appellee.
May 11, 1993
Per Curiam. The appellant, Robert G. Beverly, was
convicted, after a jury-waived trial, of two counts of
failure to file an income tax return, and three counts of
income tax evasion. We affirm the conviction.
I
Beverly's principal argument on appeal concerns the fact
that he represented himself at trial. In his pre-trial
appearances, Beverly twice stated that he wanted a lawyer and
was unable to afford one. He even filed a motion seeking
appointed counsel. However, a week after he filed the
motion, Beverly withdrew it without explanation, and on the
first day of trial he unequivocally stated his intention to
go forward without a lawyer.
Beverly now argues that the district court "was under an
obligation of the Constitution to appoint Assistance of
Counsel regardless of the defendants [sic] financial status.
. . ." This is incorrect. The Criminal Justice Act (CJA)
requires appointed counsel only for "any person financially
unable to obtain adequate representation. . . ." 18 U.S.C.
3006A(a). Although the CJA requires the district court to
conduct an "appropriate inquiry" into the financial status of
a defendant who seeks appointed counsel, 18 U.S.C.
3006A(b), the defendant bears the burden of proving financial
inability. United States v. Harris, 707 F.2d 653, 660 (2d
Cir. 1983) and cases cited therein.
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Beverly appears to be arguing (1) that, had he not
withdrawn his motion for appointed counsel, the court's
"inquiry" would have consisted of scrutinizing a standard CJA
application and affidavit disclosing Beverly's financial
status, and (2) that such an inquiry would not have been
"appropriate" because it would have required Beverly to
surrender his Fifth Amendment right not to incriminate
himself in order to obtain the protection of counsel due him
under the Sixth Amendment.
Some courts have recognized a potential for conflict
between a criminal defendant's Fifth Amendment right not to
incriminate himself and his obligation under the CJA to
demonstrate that he is unable to pay for a lawyer. See
United States v. Gravatt, 868 F.2d 585, 589 (3d Cir. 1989);
United States v. Moore, 671 F.2d 139, 140 (5th Cir. 1982);
United States v. Anderson, 567 F.2d 839, 840-41 (8th Cir.
1977). However, even these courts have not allowed tax
defendants to obtain free counsel regardless of financial
need. Rather, they have required the defendants to bear
their burden of proof, subject to either (1) in camera
inspection of information about their finances, or (2)
assurances that such information will not be used against
them. See United States v. Gravatt, 868 F.2d at 590. See
also United States v. Davis, 958 F.2d 47, 49 n.4 (4th Cir.
1992) (district court avoided Fifth Amendment challenge by
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examining defendant ex parte and sealing answers); United
States v. Anderson, 567 F.2d at 840 (district court should
have reviewed financial information in camera); United States
v. Ellsworth, 547 F.2d 1096, 1098 (9th Cir. 1976) (affirming
where district court assured defendant that financial
information could not be used for further prosecution). But
see United States v. Krzyske, 836 F.2d 1013, 1018-19 (6th
Cir. 1988) (district court not required to hold in camera
hearing where defendant asserted Fifth Amendment rights);
United States v. Peister, 631 F.2d 658, 662 (10th Cir. 1980)
(district court not required to grant immunity where conflict
with Fifth Amendment is speculative and prospective only).
We do not have to decide here whether a district court
must grant immunity or hold an in camera hearing when a
criminal defendant asks for appointed counsel but raises a
legitimate Fifth Amendment concern about providing the needed
financial information, because Beverly -- unlike the
defendants in the cases cited above -- did not even make a
"colorable assertion" to the district court that public
disclosure of his financial information would violate his
Fifth Amendment rights. Cf. United States v. Gravatt, 868
F.2d at 588. Beverly did tell the court that he wanted a
lawyer and could not afford one that would represent him
"properly," but in his conversations with the district judge
about the issue of representation he never asserted his Fifth
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Amendment rights or attempted to explain how his response to
the standard CJA inquiries would compromise those rights. He
filed a motion for appointed counsel but provided no
financial information, and then withdrew the motion without
comment, and certainly without suggesting that he had done so
in order to preserve his right not to incriminate himself.1
In sum, Beverly never suggested, much less demonstrated,
to the district court that there was any real tension between
his rights under the Fifth Amendment and his obligations
under the CJA, and hence never gave the district court an
opportunity either to resolve such tension by allowing him to
produce evidence of his financial status subject to in camera
inspection or a grant of immunity, or to refuse to do so.
His assertion on appeal that he was put to an impermissible
"choice" between conflicting constitutional rights,
therefore, is too speculative to merit relief. See United
States v. Peister, 631 F.2d at 662.
1. Beverly's statement to Pre-Trial Services that he was
earning $4,000 a month, the fact that he was able to pay a
lawyer to represent him during the IRS' investigation, and
the evidence produced at trial that he owned two condominiums
and a boat, and had earned more than $60,000 in 1985 and
1986, and more than $85,000 in 1987, all suggest, rather,
that Beverly withdrew the motion because he had concluded
that he would not be able to convince the court to give him a
free lawyer. This evidence also suggests that, had the
district court reviewed Beverly's financial status (either in
camera or after a grant of immunity), it would nevertheless
have concluded that he was not entitled to appointed counsel
under the CJA.
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Nor do we find any other suggestion in the record that
Beverly's decision to forego counsel was less than "knowing
and intelligent." Beverly argues that the district court
should have followed a prescribed series of questions in
order to ensure that the waiver was valid. See United States
v. McDowell, 814 F.2d 245, 250, 251-52 (6th Cir. 1987). But
this court does not require the district court to "issue a
particular warning or make specific findings of fact before
it allows a defendant to proceed pro se." United States v.
Hafen, 726 F.2d 21, 25 (1st Cir. 1984). We have said that
the district court can allow a criminal defendant to
represent himself if all of the information available to the
court indicates that the defendant (1) understands "the
magnitude of the undertaking and the 'disadvantages of self-
representation,'" (2) is aware "that there are technical
rules governing the conduct of a trial, and that presenting a
defense is not a simple matter of telling one's story," and
(3) appreciates "the seriousness of the charge and of the
penalties he may be exposed to before deciding to take a
chance on his own skill." Maynard v. Meachum, 545 F.2d 273,
279 (1st Cir. 1976).
Here, on the first day of trial, the district judge
quite explicitly asked Beverly whether he understood that he
had a right to a lawyer, and whether he chose nonetheless to
"go ahead without one," and Beverly quite explicitly answered
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that he did. By that time, moreover, the court had, in one
pre-trial hearing, described the charges to Beverly as
"serious," explained the potential penalties, and commented
on the "unique" nature of some of the motions that Beverly
had filed, and had heard Beverly, in another pre-trial
hearing, acknowledge that he was not an attorney and that he
did not "know all the procedures that this Court needs me to
perform." Although the process of review would be simplified
if the district court would engage in a more extended
colloquy and give a more specific warning than was done here,
and if it would "provide[] a short statement of its reasons
for finding a defendant's waiver of counsel to be knowing and
intelligent," United States v. Hafen, 726 F.2d at 25, we
cannot find, on the record before us, that the district court
erred in allowing Beverly to represent himself at trial.
II
Beverly's remaining arguments do not require extended
discussion.
1. Beverly contends that the testimony of IRS agents
concerning their interview with him in 1989 was inadmissible
because Beverly had not been properly warned about his Fifth
Amendment rights before the interview began. Beverly
concedes that the agents advised him of his rights in
"absolute accordance" with IRS procedures for so-called
"noncustodial" interviews, but says that his interview was in
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fact "custodial" and therefore required the agents to give
him full-blown Miranda warnings.
"In evaluating whether a suspect was in custody and thus
entitled to Miranda warnings, we look to see, using objective
standards, whether there was a manifestation of a significant
deprivation of or restraint on the suspect's freedom of
movement, taking into account such factors as 'whether the
suspect was questioned in familiar or at least neutral
surroundings, the number of law enforcement officers present
at the scene, the degree of physical restraint placed upon
the suspect, and the duration and character of the
interrogation.'" United States v. Lanni, 951 F.2d 440, 442
(1st Cir. 1991) (citations omitted). Beverly, who was
represented by a lawyer during the IRS investigation, was
interviewed at the lawyer's office, in the lawyer's presence,
by two IRS agents. There is nothing in the record to suggest
that the agents physically restrained Beverly or gave him
reason to think he could not leave or terminate the
interview. The questioning lasted, according to Beverly,
only three hours, and we see no evidence that the questions
were coercive in nature, or that the agents were overbearing
in manner. In short, there are no indicia of a custodial
interrogation, and Beverly's protests that he nevertheless
felt intimidated will not avail him, because the test of
custody is objective: "the only relevant inquiry [with
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respect to whether a person was in custody for Miranda
purposes] is how a reasonable man in the suspect's position
would have understood his situation." Berkemer v. McCarty,
468 U.S. 420, 442 (1984).2
2. Beverly says that IRS and Justice Department
procedures required the prosecutor in this case to obtain (a)
a Special Agent's Report, (b) a Criminal Referral Letter, (c)
a Prosecution Report, and (d) a signed Form 9131 before he
went to the grand jury for an indictment. He claims that the
prosecutor did not obtain these documents.
We may assume the truth of these premises because they
do not support Beverly's conclusion: that the resulting
indictment was flawed and that the trial court therefore
lacked jurisdiction to convict. "[A]n IRS agent's violation
of a regulation of this sort does not prevent prosecution and
conviction of a defendant. . . ." United States v. Michaud,
860 F.2d 495, 499 (1st Cir. 1988). The procedures Beverly
describes were not required by statute or the Constitution,
nor can Beverly reasonably contend that he relied on the
procedures, or that their breach had any effect on his
conduct. United States v. Caceres, 440 U.S. 741, 749-53
(1979). For similar reasons, we hold that even if the IRS
2. Nor do we see any evidence that the agents tricked
Beverly into waiving his Miranda rights. Beverly says that
the IRS agent who conducted the interview told him that he
was investigating the possibility of criminal violations, and
that appears to be exactly what the agent was doing.
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violated the Privacy Act by failing to keep Beverly's
Individual Master File up-to-date, the delinquency caused
Beverly no prejudice at trial and does not affect the
validity of his conviction.
3. The district court did not deprive Beverly of any
discovery to which he was entitled. The government complied
with the district court's uniform order for automatic
discovery, and Beverly has not shown us that the prosecutor
withheld anything which the order required him to disclose,
or that he found and failed to disclose any exculpatory
material. Beverly's discovery motions ranged well beyond the
scope of Rule 16 and were properly denied. The prosecutor
complied with the Jencks Act, 18 U.S.C. 3500(a), by
supplying witness statements and reports to Beverly on the
morning of trial.
4. We see no merit in Beverly's contention that neither
the Attorney General nor the Bureau of Prisons had statutory
authority to take custody of him after his conviction.
Beverly was convicted of five crimes, three committed before
November 1, 1987, and two committed after that date. As to
the first group, 18 U.S.C. 4082(a) authorized the Attorney
General to take custody, because the repeal of Section
4082(a) did not take effect until November 1, 1987. As to
the latter group, 18 U.S.C. 3621(a) -- which replaced
Section 4082(a) and applies to crimes committed after
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November 1, 1987 -- authorized the Bureau of Prisons to take
custody.
Affirmed.
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