United States v. Frech

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 16, 1998
• Docket: 97-6282
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 16 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA, Plaintiff - Appellee, Nos. 97- 6282 97-6349 v. (D.C. No. CR-97-89-R) DARRELL L. FRECH and SALLY M. (W.D. Okla.) FRECH, Defendants - Appellants.

ORDER AND JUDGMENT *

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.

The cases are therefore ordered submitted without oral argument.

Defendants, Mr. Darrell Frech and Ms. Sally Frech, were indicted by a

grand jury on charges of conspiracy and mail fraud, in violation of 18 U.S.C. §

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 371 and 18 U.S.C. § 1341. Mr. Frech was also charged with money laundering, in

violation of 18 U.S.C. § 1956(a)(1)(B)(i). At their arraignments before a United

States magistrate judge, Defendants expressed their desire to represent

themselves. See R., Vol. I, Docs. 1, 4; Supp. R., Vol. IV at 4-12; Vol. V at 4-11.

Approximately one month later, in response to the government’s Motion and Brief

for Hearing on Defendants’ Waiver of Counsel, the district court held a hearing to

further advise Defendants of their right to counsel. See id. at Vol. 1, Doc. 10; see

generally Vol. III. During that proceeding, the court appointed “standby counsel”

to be available to Defendants. See id. at Vol. III at 23, 26-28; Supp. R., Vol. I,

Docs. 18, 19. Defendants chose to represent themselves at trial rather than to

accept the counsel appointed by the district court. See id. at Vol. I, Doc. 40. A

jury convicted Defendants on all counts charged in the indictment. 1

Prior to sentencing, Defendants filed an appeal in this court challenging the

district court’s jurisdiction. 2 This court reserved judgment on that appeal. The

issues raised in that appeal and the issues raised by Defendants in the appeal filed

1 The convictions stemmed from the “Agricultural Related Damages Program.” Appellee’s Br. at 3. Defendants asserted that this “Program” was the result of an alleged class action lawsuit in which the Federal Reserve, the Internal Revenue Service, and the entire banking system in the United States were allegedly found fraudulent and unconstitutional. See id. Defendants claimed that citizens could receive money through this program by filing a claim for damages and paying a $300 fee to Defendants. 2 Docket number 97-6282 refers to that interlocutory appeal.

-2- after their sentencing, docket number 97-6349, are virtually identical, 3 and the

two appeals have been consolidated. We construe Defendants’ pro se pleadings

liberally. See United States v. Warner, 23 F.3d 287, 290 (10th Cir. 1994).

Defendants argue that their convictions are invalid for several reasons and ask

this court to issue a writ of mandamus which will dismiss the indictments against

them, vacate the jury verdict, dismiss the district court’s orders and judgments,

and set aside their sentences. See Appellants’ Br. (No. 97-6349) at 38. We

address each argument in turn.

Defendants maintain that their Sixth Amendment right to be represented by

counsel was violated because they were and remain “in want of Effective

Assistance of counsel.” Id. at 1, 34. Defendants assert that the district court

erroneously ruled that they knowingly and intelligently waived their right to

counsel. We review de novo whether a defendant has voluntarily, knowingly, and

intelligently waived his right to counsel. See United States v. Taylor, 113 F.3d

1136, 1140 (10th Cir. 1997). Defendants’ contention that they were denied

effective assistance of counsel in violation of their constitutional rights is a

legally frivolous assertion which obscures the fact that Defendants’ own

3 Because the two appeals present essentially the same arguments, we do not address the government’s argument that appeal number 97-6282 should be dismissed for lack of jurisdiction.

-3- obstreperous demands resulted in their proceeding to trial without representation. 4

The record reveals that the district court went to great lengths to encourage

Defendants to accept appointed counsel at their arraignments, prior to and during

their trial, and at sentencing. The district court repeatedly conducted the proper

inquiry to determine that Defendants knowingly and intelligently waived their

right to counsel, and the district court made explicit findings in this regard. See

United States v. Silkwood, 893 F.2d 245, 248 (10th Cir. 1989), cert. denied, 496

U.S. 908 (1990); cf. Taylor, 113 F.3d at 1140 (“[A] refusal without good cause to

proceed with able appointed counsel is a ‘voluntary’ waiver.” (citation omitted)).

Although the Sixth Amendment provides defendants with the right to

counsel in criminal cases, defendants who are appointed counsel are not entitled

to counsel of their own choosing. See United States v. Nichols, 841 F.2d 1485,

1504 (10th Cir. 1988); see also United States v. Willie, 941 F.2d 1384, 1390 (10th

Cir. 1991) (“[defendant’s] clear expression that he could only work with an

attorney who shared his views . . . [inter alia] constitute[d] a valid implied waiver

of his right to counsel”), cert. denied, 502 U.S. 1106 (1992). Defendants

repeatedly stated that they would only accept counsel who were not bar

4 For example, Defendants refused to accept the assistance of counsel who utilized the appellation “esquire” because they believe this is a title of nobility which infringes on their rights as sovereigns and as Christians. See R., Vol. III at 5; Supp. R., Vol. VI at 7.

-4- association members. The district court did not err in denying Defendants’ desire

for counsel who were not licensed to practice in Oklahoma and before the federal

district court. See Nichols, 841 F.2d at 1503 & n.10 (“A defendant does not have

a constitutionally protected right to be represented by a person who is not

admitted to the bar.”). Defendants were not willing to accept court-appointed

counsel unless counsel signed a contract authored by Defendants. See R., Vol. I,

Doc. 39; Vol. III at 20-21, 24-25. It was not unreasonable for the proposed court-

appointed counsel to refuse to sign Defendants’ proposed contract.

Defendants also argue that the search warrant utilized to seize evidence

introduced at trial was defective because it misstated that the owner of the real

property to be searched was Mr. Frech. See Appellants’ Br. (No. 97-6349) at 17-

19. Defendants also allege that the warrant was invalid because it was not

supplemented with an affidavit of probable cause “supported by oath or

affirmation from a de jure injured party.” Appellants’ App., Ex. 8 at 2. We

review the reasonableness of a search warrant de novo. See United States v.

Kennedy, 131 F.3d 1371, 1375 (10th Cir. 1997). When determining whether the

issuing magistrate had a substantial basis for finding probable cause to issue the

warrant, we give great deference to the magistrate judge’s decision. See Illinois

v. Gates, 462 U.S. 213, 236 (1983); Kennedy, 131 F.3d at 1375.

We note that Defendants did not file a motion to suppress the evidence

-5- seized as a result of the warrant’s execution. At trial, Defendants objected to the

introduction of some evidence based on the alleged invalidity of the warrant. See

R., Vol. IV at 78, 129-30, 142. During the trial, however, the court determined

that the warrant was properly issued and executed.

Defendants’ argument that the search warrant was invalid is without merit.

Defendants have not proved that the warrant was invalidly issued or improperly

executed. See United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993);

Mason v. United States, 719 F.2d 1485, 1488 (10th Cir. 1983). These Defendants

offer no evidence that the facially valid warrant was based on a deliberately or

recklessly false statement of material fact. See Maestas, 2 F.3d at 1491. The

magistrate judge properly relied on the statements of the investigating officer in

the affidavit to determine that there was sufficient probable cause to issue the

warrant. We conclude that this warrant is well within the standards we have set

for search warrants. See United States v. Richardson, 86 F.3d 1537, 1545 (10th

Cir.) (reaffirming that an affidavit lacking personal knowledge of illegal activity

is not fatal to the probable cause determination), cert. denied, U.S. , 117 S.

Ct. 588 (1996); United States v. Sullivan, 919 F.2d 1403, 1423-24 (10th Cir.

1990) (stating that although the affidavit supporting the search warrants contained

errors, the trial judge’s findings were not clearly erroneous and defendants did not

demonstrate otherwise). The warrant properly stated that Defendants’ residence

-6- was to be searched. Cf. United States v. Dahlman, 13 F.3d 1391, 1397 (10th Cir.

1993) (stating that mentioning the word “residence” in a warrant sufficiently

counterbalances an ambiguous property description), cert. denied, 511 U.S. 1045

(1994). The ownership of the place to be searched was not material to the

warrant’s validity. Additionally, if for some reason the warrant were invalid, the

officers’ good-faith reliance on the facial validity of the warrant would fit the

exception to the suppression doctrine set forth by United States v. Leon, 468 U.S.

897 (1984). See Dahlman, 13 F.3d at 1397-98.

Defendants claim that they are not subject to the United States criminal

statutes under which they were convicted because the federal government and the

District Court for the Western District of Oklahoma have no jurisdiction over

them. See Appellants’ Br. (No. 97-6349) at 10 (“[Defendants] have recognized

that the Original 1787 Constitution has manipulatively been Suppressed and is no

Longer a fundamental American Law and . . . [Defendants] have Declared their

own Declaration of Independence from the De Facto UNITED STATES

GOVERNMENT.”). Defendants also argue that the capitalization of their names

in court documents constitutes constructive fraud and, therefore, the federal

courts do not have jurisdiction over them. Defendants claim that the District

Court for the Western District of Oklahoma is not the proper venue for

determination of this case. We review the district court’s exercise of jurisdiction

-7- and determination of venue under the de novo standard. See United States v.

Cuch, 79 F.3d 987, 990 (10th Cir.), cert. denied, U.S. , 117 S. Ct. 384

(1996).

Defendants’ arguments that the federal courts have no jurisdiction over

them are similar to those labeled “frivolous” and “silly” by this court. Collins,

920 F.2d at 629-30. Defendants “blithely ignore 18 U.S.C. § 3231 which

explicitly vests federal district courts with jurisdiction over ‘all offenses against

the laws of the United States.’” Id. at 629. Defendants’ assertion that the

capitalization of their names in court documents constitutes constructive fraud,

thereby depriving the district court of jurisdiction and venue, is without any basis

in law or fact. Defendants have not argued that they are not residents of Alfalfa

County, Oklahoma, which lies in the Western District of Oklahoma for purposes

of determining venue. Additionally, the acts charged in the indictment were

committed in the Western District of Oklahoma. We conclude that venue was

properly in that district. See 18 U.S.C. § 3237(a); Fed. R. Crim. P. 18.

Defendants’ remaining arguments are legally untenable. Defendants’

allegation that the trial court erred in not allowing them to voir dire potential

jurors is clearly without merit. See Fed. R. Crim. P. 24(a) (giving the courts

discretionary power over voir dire); United States v. Ainesworth, 716 F.2d 769,

770 (10th Cir. 1983) (“We have previously dismissed this argument as frivolous

-8- and do so again.”). Defendants contend that they cannot receive due process of

law in the courts of the United States and that a “Judicial Declatory [sic]

Judgment” recorded in Oklahoma county records should be afforded full faith and

credit by the United States federal courts. Defendants maintain that this

declaratory judgment has res judicata effect in this matter. Defendants fail to cite

any legitimate authority for their contention that the federal courts should give

full faith and credit to the judgment of a private court convened by Defendants in

Alfalfa County, Oklahoma.

Defendants maintain that their conduct under the purported Agricultural

Related Damages Program was authorized by United States statutes, the United

States Constitution, and a presidential executive order. They argue that,

therefore, their conduct was not illegal. Defendants’ allegation is without legal

merit. During the trial this argument was dissected, explained, and disproved.

Alternatively, this allegation might be read as an assertion that the government

failed to prove the intent element of Defendants’ crimes. Cf. Appellants’ App.,

Ex. 26. It appears from the record that this issue was presented to the jury by

Defendants. See R., Vol. IV at 123-25, 144. The jury was presented with

sufficient evidence from which it could find beyond a reasonable doubt that

Defendants possessed the requisite intent to defraud their victims. The jury was

properly instructed on the defense of good faith and the definition of the terms

-9- “willingly” and “knowingly.” See Supp. R., Vol. III at 23, 28, 34-35.

Finding no legal merit in any of Defendants’ arguments that their

convictions and sentences should be reversed, we AFFIRM Mr. Darrell L. Frech’s

conviction and sentence, and we AFFIRM Ms. Sally M. Frech’s conviction and

sentence.

AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge

-10-