LARRY TURNBULL, PETITIONER V. UNITED STATES OF AMERICA No. 89-6813 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 3-13) is reported at 888 F.2d 636 (9th Cir. 1989). JURISDICTION The judgment of the court of appeals was entered on October 31, 1989. A petition for rehearing was denied on January 2, 1990. Pet. App. 14. The petition for a writ of certiorari was filed on February 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court violated petitioner's rights to counsel or to the free exercise of religion when it appointed an attorney to represent him at trial, notwithstanding petitioner's demand that a lay person be appointed as co-counsel. STATEMENT Following a jury trial in the United States District Court for the District of Alaska, petitioner was convicted on four counts of tax evasion, in violation of 26 U.S.C. 7201. He was sentenced to a one-year term of imprisonment and a three-year probationary term, and was ordered to pay the costs of prosecution and special assessments of $200. The court of appeals affirmed. Pet. App. 3-13. 1. Prior to his arraignment on the indictment, petitioner filed pleadings in the district court refusing to waive his right to counsel, but asserting that his religious beliefs precluded him from associating with attorneys (Pet. App. 5-6). Petitioner requested that lay persons be appointed as his co-counsels (id. at 6). At his arraignment, petitioner appeared without counsel (ibid.). When he refused to speak, the court entered a plea of not guilty on his behalf (ibid.). Petitioner thereafter withdrew his motion requesting the assistance of lay persons. At a subsequent hearing, however, petitioner reiterated his refusal to waive his right to counsel, and renewed his religious objections to hiring a licensed member of the bar. The magistrate conducting the hearing questioned petitioner regarding his understanding of the proceedings, and explained the advantages of hiring a licensed attorney. In addition, the magistrate advised petitioner that the rules of the court precluded the appointment of a lay person as counsel. When petitioner persisted in his refusal to waive his right to counsel, the magistrate advised petitioner that he could conduct his own defense, but he appointed a federal public defender to act as standby counsel in the event petitioner needed assistance. Pet. App. 6. Immediately before trial, the district court questioned petitioner further about his right to representation (Pet. App. 6). After the court explained the charges and reminded petitioner of the advantages of employing trained counsel, petitioner stated that he did not understand the charges and refused to waive his right to counsel (ibid.). The district court therefore asked the public defender to sit at counsel table and conduct the defense (id. at 6-7). Although petitioner was given numerous opportunities to participate in his own defense, he refused to do so (id. at 7). 2. The court of appeals affirmed petitioner's convictions (Pet. App. 3-13). The court first rejected the contention that the appointment of counsel denied petitioner his Sixth Amendment right to the effective assistance of counsel. The court explained (id. at 7) that although a defendant has a constitutional right to represent himself at trial, he may do so only if he first makes a knowing and voluntary waiver of his right to counsel. In the present case, the court noted, petitioner had expressly refused to waive his right to counsel, and his "statement that he did not understand the charges made a waiver impossible, even if he had in fact attempted one" (id. at 8). The court also rejected the contention that petitioner was entitled to be represented by lay counsel (id. at 8-9). Finally, the court held that the appointment of counsel did not deny petitioner's First Amendment right to the free exercise of religion. The court stated that even if the refusal to appoint lay counsel or to permit self-representation burdened petitioner's religious practice, "the state's compelling interest in a fair and orderly trial outweigh(ed) (petitioner's) objection to counsel" (id. at 9-12). /1/ ARGUMENT Petitioner renews his claim that the district court's appointment of counsel, and its refusal to appoint a nonlawyer, violated his right to counsel under the Sixth Amendment and his right to the free exercise of religion under the First Amendment. There is no merit to either contention, and further review is therefore unwarranted. 1. The Sixth Amendment guarantees both the assistance of counsel and, implicitly, the right to refuse the assistance of counsel. Faretta v. California, 422 U.S. 806, 819 (1975). Unlike the right to counsel, however, which is in effect unless waived, the right of self-representation is not in effect unless asserted. Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir.), cert. denied, 484 U.S. 945 (1987). In particular, before a defendant is entitled to represent himself, he must "knowingly and intelligently" waive his constitutional right to counsel. Faretta v. California, 422 U.S. at 835, citing Johnson v. Zerbst, 304 U.S. 458, 464-465 (1938). There is a "strong presumption against waiver of the constitutional right to counsel," and any such waiver "must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, (and) possible defenses to the charges and circumstances in mitigation thereof * * *." Von Moltke v. Gillies, 332 U.S. 708, 724 (1948) (plurality). In the present case, petitioner emphatically refused to waive his right to counsel. Moreover, when the district court explained the charges to petitioner, petitioner specifically stated that he did not understand them. In light of those circumstances, the district court was entirely correct in denying petitioner's request to proceed pro se. See Tuitt v. Fair, 822 F.2d at 174-177; Brown v. Wainwright, 665 F.2d 607, 612 (5th Cir. 1982); United States v. Bennett, 539 F.2d 45, 50 (10th Cir.), cert. denied, 429 U.S. 925 (1976); Meeks v. Craven, 482 F.2d 465, 467-468 (9th Cir. 1973). See also Faretta v. California, 422 U.S. at 835 (Faretta "clearly and unequivocally" stated that he did not want counsel but desired to represent himself). /2/ 2. Petitioner asserts that by making him associate with a licensed attorney, the appointment of counsel in this case violated his First Amendment right to the free exercise of religion. There is no merit to that claim. Assuming, as the court of appeals did (Pet. App. 10), that the appointment of counsel burdened petitioner's religious practice, there was plainly "a compelling government interest (that) justifie(d) the burden." Hernandez v. Commissioner, 109 S. Ct. 2136, 2148 (1989). /3/ "From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law." Gideon v. Wainwright, 372 U.S. 335, 344 (1963). And as this Court has observed, "the help of a lawyer is essential to assure a fair trial." Faretta v. California, 422 U.S. at 832-833. Accordingly, because a defendant who represents himself "relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel," he must "'knowingly and intelligently' forgo those relinquished benefits" (id. at 835). Allowing petitioner to represent himself in this case -- notwithstanding his admission that he did not understand the charges contained in the indictment -- "posed such a significant risk of producing an unfair or inaccurate result that * * * (his) religious convictions had to yield in the face of that danger." Africa v. Anderson, 542 F. Supp. 224, 230 (E.D. Pa. 1982). /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General SHIRLEY D. PETERSON Assistant Attorney General ROBERT E. LINDSAY GAIL BRODFUEHRER Attorneys JUNE 1990 /1/ The court of appeals also rejected petitioner's challenge to the court's jurisdiction, and upheld his constitutional objection to the special assessments (see United States v. Munez-Flores, No. 88-1932 (May 21, 1990)). The petition does not present those issues. /2/ Petitioner contends (Pet. 17-18) that the district court should have granted his request to appoint lay counsel. But petitioner had no constitutional right to be represented by a person who was not admitted to the bar. See United States v. Dawes, 874 F.2d 746, 748 (10th Cir. 1989); United States v. Nichols, 841 F.2d 1485, 1503 (10th Cir. 1988); United States v. Thibodeaux, 758 F.2d 199, 201 (7th Cir. 1985); United States v. Wilhelm, 570 F.2d 461, 465 & n.9 (3d Cir. 1978) (collecting cases). Contrary to petitioner's assertion (Pet. 17), moreover, the Founders did not intend the "right to counsel" to encompass the right to be represented by "anyone and not just (a) 'lawyer'." Rather, "the 'right to counsel' meant to the colonists a right to choose between pleading through a lawyer and representing oneself." Faretta v. California, 422 U.S. at 828. /3/ The requirement that a defendant make a knowing and intentional waiver before he may proceed pro se is not specifically directed at religion; rather, it is a generally applicable rule intended to protect the constitutional rights of all defendants. Accordingly, there is considerable doubt whether, in order to justify a waiver requirement under the Free Exercise Clause, the government is even obligated to show a compelling state interest. See Employment Division, Department of Human Services v. Smith, 110 S. Ct. 1595 (1990). For the reasons stated in the text, however, a compelling governmental interest is clearly present. /4/ Contrary to petitioner's assertion (Pet. 4, 14-15), the court of appeals' decision refusing to appoint lay counsel does not conflict with either United States v. Wilhelm, 570 F.2d 461 (3d Cir. 1978), or United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), cert. denied, 431 U.S. 967 (1977). In each of those cases, the court of appeals upheld the district court's refusal to permit representation by lay counsel.