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United States v. Wilhelm

filed: January 23, 1978.

UNITED STATES OF AMERICA
v.
WILHELM, ROBERT E.;, ROBERT EUGENE WILHELM, APPELLANT; UNITED STATES OF AMERICA V. ROBERTS, EDWARD A., APPELLANT; UNITED STATES OF AMERICA V. HOUSER, KENNETH L.; KENNETH LEWIS HOUSER, APPELLANT



APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE.

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. ยง 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 ...


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