United States v. Wesley Willie

941 F.2d 1384, 33 Fed. R. Serv. 1113, 68 A.F.T.R.2d (RIA) 5083, 1991 U.S. App. LEXIS 18125
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 12, 1991
Docket90-2028, 90-2041
StatusPublished
Cited by165 cases

This text of 941 F.2d 1384 (United States v. Wesley Willie) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wesley Willie, 941 F.2d 1384, 33 Fed. R. Serv. 1113, 68 A.F.T.R.2d (RIA) 5083, 1991 U.S. App. LEXIS 18125 (10th Cir. 1991).

Opinions

STEPHEN H. ANDERSON, Circuit Judge.

Wesley Willie appeals his conviction in district court of four counts of failure to file income tax returns for the years 1982 to 1985 in violation of 26 U.S.C. § 7203. We affirm.

Wesley Willie, a Native American, filed personal income tax returns in 1975, 1976 and 1977, receiving a refund in each year. He did not file in 1978 and filed a zero return in 1980. From 1982 to 1985, Willie also failed to file although he earned a substantial income each year1 working on large commercial construction projects at various locations throughout the United States, far from his mailing address at the Navajo Nation in New Mexico. On his W-4 forms required for employment, Willie claimed numerous exemptions to which he was not entitled to avoid the payment of taxes. The IRS mailed a number of notices to Willie’s address regarding his lack of filing. Subsequently, this action was brought in district court and Willie was found guilty by jury and convicted on all four counts of willful failure to file tax returns. He now appeals that conviction.

Willie has filed two briefs on appeal, one submitted by counsel and one pro se. Through counsel he argues that: (1) he was denied his right to a speedy trial; (2) he was denied his right to effective assistance of counsel; (3) the trial court erred in prohibiting the introduction of his exhibits; and, (4) the prosecution exercised its peremptory challenge to exclude one of two Native American jurors in violation of Batson v. Kentucky. In his pro se brief, he argues further that: (1) he lacked sufficient notice of the elements of the offense charged; (2) the United States lacks jurisdiction over Native Americans to enforce the income tax laws against them; (3) the judge engaged in prejudicial misconduct; and, (4) his petition for Writ of Habeas Corpus was illegally suspended.

I.

RIGHT TO SPEEDY TRIAL

Willie claims that he was denied a speedy trial in violation of the Speedy Trial Act which requires that a defendant be brought to trial within 70 days of his arraignment. 18 U.S.C. § 3161(c)(1) (1985). Willie’s trial began 227 days after his arraignment. However, certain periods of that time may be excluded in computing the allowable delay in commencing trial. 18 U.S.C. § 3161(h).

Delay resulting from the submission of any pretrial motion, “from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion,” shall be excluded. 18 U.S.C. § 3161(h)(1)(F). Willie’s first motion was filed on April 26. R. Docket Sheet, Doc. No. 2. The district court ruled on that and several subsequent motions without a hearing on June 7, but reserved consideration of Willie’s motion to proceed pro se until it was “satisfied that Defendant fully recognizes the heavy duty that he undertakes in representing himself and, after being so advised, insists on representing himself.” R.Yol. I, Tab 11. It is undisputed that the 44 days from the filing of Willie’s first motion on April 26 to the court’s disposition of all but the self-representation motion on June 7 should be excluded from the speedy trial calculation. The central question concerns the excludable time allowed for resolution of the pro se representation issue.

Willie argues that, although the court did not state that it was taking the motion under advisement on June 7, the motion was, in effect, taken under advisement to be ruled on at a later date. If under advisement, the maximum excludable delay for the court’s determination is 30 days. 18 U.S.C. § 3161(h)(l)(J); see United States [1388]*1388v. Hines, 728 F.2d 421, 426 (10th Cir.), cert. denied, 467 U.S. 1246, 104 S.Ct. 3523, 82 L.Ed.2d 831 (1984). We do not find, however, that the motion was taken under advisement.2 Rather, the motion was still pending until trial when the district court discussed the difficulties of self-representation with Willie and made its final determination allowing Willie to proceed pro se at trial, with his appointed attorney acting as standby counsel. By that time, the court had apparently satisfied itself that Willie understood the difficulties of self-representation and still wished to conduct his defense pro se.

Although it is preferable for the court to hear motions at the earliest possible time, the entire time between the filing until the conclusion of the hearing is excludable, regardless of whether the delay was “reasonably necessary.”3 Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 1876, 90 L.Ed.2d 299 (1986); United States v. Gonzales, 897 F.2d 1312, 1316 (5th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991); United States v. Santoyo, 890 F.2d 726, 728 (5th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 2567, 109 L.Ed.2d 749 (1990); United States v. Stafford, 697 F.2d 1368, 1373 ns. 4, 5 (11th Cir.1983). Thus, the period from the filing of the first motion on April 26 to the court’s final hearing and disposition of the representation motion at the beginning of trial on November 20 is excluded under 18 U.S.C. § 3161(h)(1)(F). United States v. Tranakos, 911 F.2d 1422, 1425-26 (10th Cir.1990); see United States v. Santoyo, 890 F.2d at 728; United States v. Stafford, 697 F.2d at 1374. Since only 19 days elapsed between the arraignment and the April 26 filing, Willie was not denied a speedy trial and we need not rule on his other speedy trial contentions.

II.

RIGHT TO REPRESENTATION BY COUNSEL

Willie argues that he did not make a knowing, voluntary and intelligent waiver of his right to counsel because he was inadequately informed of the hazards of self-representation. He also objects to the court’s denial of his request near the close of trial for a substitution of his standby counsel without inquiry into the reasons for his dissatisfaction. R.Vol. Ill at 266-68. We disagree with both arguments.

A defendant has a constitutional right to waive his right to counsel and to represent himself at criminal trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Allen, 895 F.2d 1577, 1578 (10th Cir.1990). However, to be valid, the trial judge must ensure that the waiver of counsel is “an intentional relinquishment or abandonment of a known right or privilege.” United States v. McConnell, 749 F.2d 1441, 1450-51 (10th Cir.1984) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

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941 F.2d 1384, 33 Fed. R. Serv. 1113, 68 A.F.T.R.2d (RIA) 5083, 1991 U.S. App. LEXIS 18125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wesley-willie-ca10-1991.