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United States v. Wilhelm


filed: January 23, 1978.



Gibbons and Van Dusen, Circuit Judges, and Clarkson S. Fisher, District Judge.*fn*

Author: Van Dusen

VAN DUSEN, Circuit Judge.

These appeals challenge the validity of a ruling of the United States District Court for the District of Delaware denying three criminal defendants the right to be represented at trial by a person who was not a member of the bar of that court. These appeals are from judgment and probation-commitment orders imposed after guilty verdicts were returned in separate jury trials on multiple counts of separate informations, charging each defendant with multiple violations of 26 U.S.C. § 7205 (1970),*fn1 in that defendants had made false statements on withholding certificates (Form W-4) or withholding exemption certificates (Form W-4E) with their employer, Getty Refining and Marketing Company.*fn2 After the informations were filed on November 16, 1976, each defendant filed on November 24, 1976, a form giving notice of the appointment of "George A. Bomher" as his counsel "to assist said Defendant in defending himself . . . in this action," to which there was attached a copy of a contract between each defendant and Bomher, who was designated as "Advocate" and who contracted to assist the defendant in his defense of the criminal action. There was also attached an affidavit stating as follows:

"I. Affiant's religious convictions and conscience forbid Affiant from seeking or receiving assistance or representation from any so-called licensed attorney or any other officer of the court; and

"II. Under the penalties of perjury Affiant hereby swears and affirms that Affiant is personally incompetent to effectuate a good defense in Affiant's own behalf and that Affiant has confidence in Affiant's counsel of notice."

Document 3 in Criminal Nos. 76-112, 76-113 & 76-114 (D. Del.).

Each defendant appeared for arraignment on November 24, 1976, without counsel admitted to the bar.The district court judge continued the arraignments for one week to permit the defendants to secure counsel admitted to the bar or to prepare to represent themselves.

On December 1, 1976, each defendant reappeared for arraignment and renewed his attempt to be represented by Mr. Bomher. On inquiry of Mr. Bomher, the court learned that he was not admitted to the bar of any court nor had he ever graduated from law school.*fn3 When the court refused to permit a non-lawyer to appear before it as defendants' attorney, each defendant elected to represent himself rather than to accept court-appointed counsel.

Following the entry of not guilty pleas, the court explained to the defendants that Mr. Bomher would be permitted to be in the courtroom with the defendants during the trial but that he would not be allowed "to act as a lawyer in the Courtroom" for the reasons stated in United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), cert. denied, 431 U.S. 967, 53 L. Ed. 2d 1062, 97 S. Ct. 2924 (1977).*fn4

The defendants filed identical pre-trial motions after arraignment, which were denied in United States v. Roberts, 425 F. Supp. 1281 (D. Del. 1977).

The defendants were tried in February and March 1977.*fn5 At the beginning of each trial, each defendant attempted to read as part of his opening statement, and did file with the court, a likeworded "Defendant's Statement and Request to Take Notice," which reads in part as follows:

"Defendant herein respectfully declines to make any effort to defend himself . . . for the following reasons:

"1. I have no knowledge, training, or experience in courtroom procedure.

"2. I stated in an Affidavit filed in this Court that I was incompetent to defend myself.

"3. I filed a Notice of Appointment of Counsel (not a licensed attorney) - the Court denied me the assistance of such Counsel.

"4. I filed a Motion to represent myself Pro Se with the assistance of Co-Counsel (not a licensed attorney) - the Court denied this Motion.

"5. I honestly believe that anything I might do in attempting to defend myself would hurt rather than help my case."

E.g., Document 30 in Criminal No. 76-112 (D. Del.).

The defendants were sentenced in April 1977 to three months in prison, to be followed by a probationary term of two-and-one-half years, on condition, inter alia, that defendants file proper withholding certificates with the employer and proper federal income tax returns for 1977 and 1978.

Each defendant, having filed a written Motion for Judgment of Acquittal at the close of the Government's case-in-chief, filed, post-trial, a Renewal of Defendant's Motion for Judgment of Acquittal claiming, inter alia, that the court erred

(1) in denying defendant's pre-trial motions and requests;

(2) in allowing his case to go to trial without defendant having received from the Government the discovery to which he was entitled;

(3) in failing to protect defendant's right to a fair and impartial jury trial when the court knew defendant lacked knowledge, training and experience to defend himself.*fn6


The defendants' principal contention is that the district court judgments should be reversed because they were denied their constitutional right to chosen counsel by the district court's refusal to permit them to be represented by a lay person. The Sixth Amendment to the United States Constitution provides in part that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." Defendants ask us to construe the Sixth Amendment's reference to "Counsel" as embracing any person of their choice, be he unskilled in the law or barred by the rules of court from practice before it. To so hold would profoundly alter the legal framework in which criminal proceedings are scrupulously conducted in our courts. We decline to do so.

Contemporaneous to the adoption of the Sixth Amendment and therefore reflective of its intended meaning, Congress enacted § 35 of the Judiciary Act of 1789, 1 Stat. 73, 92,*fn7 which as codified at 28 U.S.C. § 1654 (1970) now provides:

"In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."

We recognize that in some colonies where the Quaker influence predominated, the right to plead pro se or by a friend was permitted. However, there is no suggestion in the ratifying debates that there was an intention to preserve this Quaker practice. To the contrary, the predominant historical practice of representation before English and colonial courts,*fn8 as well as the First Congress' passage of § 35 of the Judiciary Act of 1789, makes clear that the Sixth Amendment was not intended to guarantee defendants the right to be represented by friends who are not trained in the law nor authorized to practice before a particular court. Professional qualifications were assumed of all "counsel" chosen to represent defendants in criminal proceedings. Defendants have cited to us no authority to the contrary other than the sincerity of their beliefs. Thus, we join with the impressive array of United States Courts of Appeals that have uniformly rejected the contention that criminal defendants have a constitutional right to be represented by a friend who is neither a law school graduate nor a member of the bar.*fn9 We note that the defendants in the case at hand were informed of their now well established Sixth Amendment rights to be represented by court-appointed counsel if indigent*fn10 or to represent themselves.*fn11

The Supreme Court held in Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), that a criminal defendant has a Sixth Amendment right of self-representation to voluntarily and intelligently reject court-appointed counsel and to proceed to defend himself without assistance of counsel. The defendants in this case argue that the Supreme Court's recognition of a constitutional right of self-representation implies a power to delegate representation to lay persons of their choosing. The defendants reason that if a defendant who is not a lawyer may serve as his own counsel, then other lay persons should be considered similarly qualified to serve as counsel. Defendants' contention is without merit.

Faretta did not hold that a lay defendant's right of self-representation was encompassed by the "assistance of counsel" clause. Rather, the Supreme Court discerned the right of self-representation as independently rooted in the structure of the Sixth Amendment, which personally guarantees the defendant the rights to be "informed of the nature and cause of the accusation" and to be "confronted with the witnesses against him." 422 U.S. at 819-20. Thus, Faretta recognized two independent Sixth Amendment rights of representation - the right of self-representation and the right to assistance of counsel. There is no comparable Sixth Amendment source of a right to delegate the power of self-representation to lay persons who do not qualify to render the assistance of counsel.*fn12

Having held that defendants had no constitutional right to insist upon lay representation, we need only consider whether the district court abused its discretion in denying a request for lay representation. The district court may have properly been guided by the following rules of court pursuant to 28 U.S.C. § 1654 in deciding whether to permit these particular defendants to choose lay representation. The United States District Court for the District of Delaware has provided in its Civil Rule 4 that only lawyers who have been "admitted to practice in [its] court" may act as counsel for parties in cases pending before it.*fn13 Although the United States District Court for the District of Delaware has no Criminal Rules, Rule 57(b) of the Federal Rules of Criminal Procedure provides under the title " Rules of Court:"

"(b) Procedure Not Otherwise Specified. If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute."

Thus, when the court, after inquiry of Mr. Bomher's qualifications, ruled that Mr. Bomher could not serve as counsel for the defendants, it was proceeding "in a lawful manner and not inconsistent[ly] with" the Federal Rules of Criminal Procedure. See F.R. Crim. P. 57(b), supra.

It is true that the district court relied on United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), cert. denied, 431 U.S. 967, 53 L. Ed. 2d 1062, 97 S. Ct. 2924 (1977), which authorizes trial or arraignment judges to exercise their discretion and permit lay representation in extraordinary cases. See also Turner v. American Bar Ass'n, 407 F. Supp. 451, 478 (N.D. Tex. 1975). However, the standards for the exercise of such discretion prescribed by Judge Edwards in Whitesel are equally applicable here:

"For a District Judge to exercise his discretion to allow a person to try a case who was not a member of the bar of the court and who had not qualified by taking the required examination, would at a minimum require a showing that such person was sufficiently learned in the law to be able adequately to represent his client in court."

543 F.2d at 1180.

Mr. Bomher was neither admitted to the bar of any court nor a graduate of an accredited law school. Moreover, there was no demonstration that Mr. Bomher possessed the minimum legal learning to justify an extraordinary order permitting him to represent the three defendants. For the foregoing reasons, we hold, as Judge Edwards did in Whitesel, that the district court did not abuse its discretion in denying defendants representation by a lay person unlearned in the law.*fn14


The following additional contentions of defendants have been carefully considered in light of the district court record and rejected:

A. The failure to make available to counsel evidence disclosable under F.R. Crim. P. 16 requires reversal.

B. Trial with the ineffective assistance of counsel requires reversal.*fn15

C. A sentence including three months' imprisonment constitutes a discriminatory abuse of discretion and cruel and unusual punishment.

The district court judgment and probation-commitment orders will be affirmed.


The district court judgment and probation-commitment orders will be affirmed.

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