Court: Court of Appeals for the Sixth Circuit; March 9, 1988; Federal Appellate Court
Kevin Elwood Krzyske was indicted on April 16, 1985, facing ten tax-related charges: five counts of tax evasion (1978-1982), four counts of failure to file tax returns (1979-1982), and one count of filing a false withholding exemption certificate (1982). He was arraigned on April 17, 1985. The jury began deliberations on June 25, 1985, resulting in an acquittal on two counts and convictions on three counts of failure to file tax returns and one count of tax evasion. Judge Joiner sentenced Krzyske to five years for tax evasion and one year for each failure to file count, with fines totaling $20,000.
On September 17, 1985, the district court granted bond on appeal with conditions, including refraining from discussing tax beliefs, filing back returns, and paying overdue taxes. The court set aside the first condition but upheld the others, which Krzyske failed to meet, leading to the cancellation of his bond. He appealed these conditions while incarcerated but was later released on bond pending appeal.
Three issues were raised on appeal: the lack of counsel during trial, alleged reversible error in jury instructions regarding 'willfulness,' and the right to a jury instruction on jury nullification. The court affirmed the district court's decisions. Krzyske had requested non-lawyer representation, which was denied, and he ultimately represented himself after failing to request appointed counsel until sentencing. The magistrate had informed him of his right to appointed counsel, leaving the door open for a later request, which he did not pursue.
On May 13, 1985, during a pretrial hearing, Krzyske sought the appointment of lay counsel, arguing that the Constitution guarantees him the right to 'counsel' beyond just an attorney, citing his belief that friends would better represent his tax protest views. The magistrate denied this request but indicated that Krzyske could obtain a court-appointed attorney if he demonstrated indigency, which he refused to do. He insisted on the need for lay counsel and objected to proceeding without it.
When his trial commenced on June 14, 1985, Krzyske reiterated his objections to self-representation but expressed willingness to accept a court-appointed attorney if he could not secure lay counsel. The government contested this, arguing that he failed to file the necessary affidavit of indigency and that his actions appeared to be a tactic to delay the trial. Judge Joiner ruled that Krzyske would represent himself, reiterating the lack of evidence regarding his financial status.
After the jury's verdict but before sentencing, Krzyske requested an attorney, which the judge denied, concluding he was not indigent, though the judge postponed sentencing to allow him time to find representation. Krzyske subsequently appeared with an attorney.
Krzyske presents two main arguments: he lacked sufficient time to secure a lawyer after the magistrate's refusal to appoint non-legal counsel, and his constitutional rights were violated when the court denied him legal assistance to complete the indigency affidavit. He contends that this situation infringed on his rights, as he did not intend to waive his right to counsel and was prejudiced by representing himself.
The government counters that Krzyske knowingly waived his right to counsel, did not genuinely desire legal representation, and that his objections were intended to delay the trial. They argue that his actions were a strategy to create grounds for appeal.
The right to counsel of choice is not absolute and must be balanced against the court's authority to manage its docket while preventing delays.
Waiver of the right to counsel occurs when an accused is reasonably offered legal representation and knowingly declines it. This principle is supported by cases such as Carnley v. Cochran and United States v. Grosshans. Courts will not tolerate manipulative tactics by litigants to preserve issues for appeal or delay proceedings, as highlighted in United States v. Romero. The right to counsel does not guarantee the choice of any specific attorney, especially when the efficient administration of justice is at stake, as illustrated in Weninger. In that case, the defendant had a reasonable opportunity to secure counsel before trial and acknowledged the risks of self-representation but chose to proceed pro se. His subsequent decision to hire counsel for appeal was deemed a strategic maneuver, leading to the conclusion that he had intelligently waived his right to counsel.
Similarly, Krzyske demonstrated knowledge of his opportunity to obtain representation, as indicated in his opening statement. He expressed concerns over hiring a court-appointed attorney, believing it would compromise his case since they are funded by the government. Krzyske's intent to represent himself or to have a sympathetic layperson assist him was evident, supported by his self-assessment of his knowledge in tax matters and his financial background. The record conveys that Krzyske's refusal of counsel constituted a knowing waiver of his right to legal representation.
Krzyske had sufficient time to seek legal counsel after the magistrate denied the appointment of lay counsel on May 13, giving him at least three days before the first district court denial on May 24, and nearly 60 days from his arraignment until trial. The court concluded that his Sixth Amendment rights were not violated as he had reasonable opportunities to secure representation, especially since he was aware of the criminal investigation for nearly four years. The district court's refusal to appoint counsel until Krzyske demonstrated indigency was deemed appropriate, supported by the precedent that defendants must provide sufficient information regarding their financial status. The court referenced the Linton test to evaluate the reasonableness of the delay in obtaining counsel, emphasizing that various factors, including the length of delay, previous continuances, and the defendant's actions, justified the district court's decision. Overall, the court determined that Krzyske's situation did not warrant the appointment of counsel until he fulfilled the necessary requirements.
The court aligns with the rationale of Harris and the decision in United States v. Peister, emphasizing that the defendant carries the burden of proving financial inability to obtain counsel. The court asserts this burden remains even when potential conflicts with the Fifth Amendment are speculative. It concludes that Krzyske’s constitutional rights were not violated by proceeding to trial without appointed counsel, affirming the district judge's decision.
Krzyske challenges the jury instruction on willfulness, claiming it conflated willfulness with attempts to evade tax obligations. Although he did not object to the instructions at trial, he argues they should be considered under Fed.R.Crim.P. 52(b). The court evaluates jury instructions in context, referencing United States v. Gray and United States v. Mahar. It finds that the instructions appropriately differentiated between willfulness and tax evasion, guiding the jury to assess the defendant's intent based on all evidence presented.
The judge highlighted evidence of Krzyske's failure to file tax returns and submission of false W-4 forms, instructing the jury to consider a pattern of behavior in determining intent. Ultimately, the court concludes that the jury charge, when reviewed as a whole, did not create a risk of wrongful conviction and was neither erroneous nor prejudicial.
Defendant argues that the definition of 'willfulness' in felony tax statutes differs from that in misdemeanor statutes, a position contradicted by Supreme Court rulings. In *Spies v. United States*, the Court highlighted the difficulty in distinguishing between willful failure to pay taxes (a misdemeanor) and willful attempts to evade taxes (a felony), asserting that willful omissions can constitute lesser offenses, while affirmative attempts to evade elevate the crime to felony status. In *Sansone v. United States*, the Court clarified that if a factual dispute exists regarding the affirmative commission required under Sec. 7201, a lesser-included offense charge based on Sec. 7203 could be warranted, but noted that filing a false tax return satisfies the commission requirement. In *United States v. Bishop*, the Court reinforced that 'willfully' in tax statutes should be interpreted uniformly, dismissing the argument for different meanings in felony and misdemeanor contexts. The Court also emphasized the necessity of distinguishing between the elements of an 'attempt to evade' and the general requirement of willfulness. Ultimately, in *United States v. Pomponio*, 'willfulness' was defined as the voluntary, intentional violation of a known legal duty, negating the need for a good faith instruction. The Court concluded that willfulness retains the same meaning under both statutes. Krzyske was convicted under Sec. 7201 for willfully attempting to evade taxes by misreporting his income. The jury instructions regarding 'willfulness' were upheld as not erroneous, thus affirming the conviction.
The trial court denied the defendant's request to instruct the jury on jury nullification, while also rejecting the government's motion to ban mention of the term during proceedings. Despite this, the defendant referenced jury nullification in his closing argument. During deliberations, the jury inquired about the doctrine, prompting the court to clarify that valid jury nullification does not exist and instructed the jury to follow the court's legal instructions, warning that deviating from them would violate their oath. The defendant objected, claiming this was erroneous.
The defendant defined jury nullification as the jury's ability to return a not guilty verdict despite evidence indicating guilt, but acknowledged that federal courts have not allowed such instructions and that only a few have entertained arguments on the topic. He argued that the court's explicit denial of valid jury nullification was unique to this case.
Referencing United States v. Avery, the court reiterated that while jurors can technically ignore the law, they are obligated to apply the law as directed by the court. The distinction between the jury's right to reach any verdict and the court's duty to instruct on applicable law is crucial, as emphasized by Supreme Court precedents, including Horning v. District of Columbia. The court concluded that allowing jury nullification instructions would undermine impartial justice. Consequently, the court affirmed the district court's decision in all respects, finding no merit in the defendant's objections regarding jury instructions.
Circuit Judge Merritt dissents, advocating for a reversal and remand for a new trial due to the District Court's error in addressing the jury's inquiry about 'jury nullification' after deliberation. The jury sought clarification on their right to acquit the defendant based on disagreement with the prosecution. The Court incorrectly instructed the jury that it lacked the authority for jury nullification, effectively denying its veto power over the prosecution. Merritt emphasizes that the jury does possess such power, citing precedent from United States v. Wilson, which asserts a jury's right to acquit irrespective of sympathy for the government's position. He references historical cases, notably the acquittal of Sir Nicholas Throckmorton, to illustrate the jury's traditional role as a protector of defendants' rights. Merritt criticizes the District Court for neglecting to inform the jury of its historical prerogatives and concludes by urging that the new trial include proper jury instructions regarding their general veto power, as established in Wilson and historical legal traditions.
Circuit Judge Merritt dissents regarding the denial of en banc rehearing on the issue of jury nullification. He emphasizes that juries possess the authority to deliver verdicts contrary to both law and facts, citing Justice Holmes' statement from Horning v. District of Columbia, which remains unchallenged by the Supreme Court. Merritt criticizes the District Court and the appellate court for disregarding this established principle due to personal disagreement. He notes that Krzyske, an employee during the relevant time, was assisted by a non-lawyer in trial preparation, although the defendant's counsel conceded that the denial of lay counsel was not a basis for appeal. The dissent highlights a lack of persuasive authority to support the defendant’s position. Additionally, while the trial judge did not initially inquire into Krzyske's financial situation, it was later revealed that he had an average annual income of $20,000.
