United States v. Irwin Schiff

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 11 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 08-10408
Plaintiff - Appellee, D.C. No. 2:04-CR-00119-1
v.
MEMORANDUM *
IRWIN A. SCHIFF,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted May 10, 2010
San Francisco, California
Before: SILVERMAN, FISHER, and M. SMITH, Circuit Judges.
Defendant-Appellant Irwin Schiff is a tax protester who was convicted of
conspiracy to defraud the government for the purpose of impeding and impairing
the Internal Revenue Service, assisting in the preparation of false income tax
returns, tax evasion, and filing false income tax returns. See United States v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Cohen, 510 F.3d 1114, 1117 n.2 (9th Cir. 2007). During trial, Schiff represented
himself and the court convicted him of contempt fifteen times due to his unruly
courtroom behavior. Id. at 1117. Previously, on direct appeal of his tax and
contempt convictions, we affirmed his convictions, but issued a limited remand
instructing the district court to submit written contempt orders. Id. at 1119. Schiff
now appeals for a second time, arguing that pursuant to the intervening case
Indiana v. Edwards, 128 S. Ct. 2379 (2008), the district court should not have
allowed him to represent himself at trial. As the facts and procedural history are
familiar to the parties, we do not recite them here except as necessary to explain
our decision. This court has jurisdiction under 28 U.S.C. § 1291. We affirm.
A district court may deny a defendant’s request to represent himself if the
defendant is unable “to carry out the basic tasks needed to present his own defense
without the help of counsel,” even if he has been found competent to stand trial.
Edwards, 128 S. Ct. at 2386. There is no reason here to direct the district court to
re-evaluate Schiff’s mental readiness for trial, since it is apparent that Schiff “was
mentally competent to conduct his own defense under the Edwards standard.”
United States v. Ferguson, 560 F.3d 1060, 1068 (9th Cir. 2009).
Although Schiff suffers from bipolar disorder and possibly a delusional
disorder, his afflictions did not prevent him from adequately conducting his own
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defense. Schiff had a coherent trial strategy, offered rational defenses, conducted
cross-examinations, direct examinations, and made a closing argument. Cf.
Ferguson, 560 F.3d at 1063-64 (noting the defendant’s bizarre, nonsensical
rambling and his failure to conduct any opening statement, cross-examinations, or
closing argument).
Furthermore, there is no doubt that the magistrate judge and district judge
considered Schiff competent to represent himself. The magistrate judge explicitly
found Schiff intelligent, sophisticated, and prepared to proceed with his own
defense. During remand proceedings, the district judge said that Schiff was “still
competent to represent himself.” The expert doctors found Schiff “competent to
stand trial and fit to . . . represent himself despite not being particularly savvy with
court proceedings.” Thus, the district court distinguished between competence to
stand trial and competence to represent oneself, and found Schiff competent on
both bases. The concerns voiced by the Court in Edwards are therefore not present
here, and nothing in Edwards suggests that the trial court judge erred in allowing
Schiff to exercise his Sixth Amendment right to self representation.
AFFIRMED.
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