from the United States District Court for the District of
Utah (D.C. No. 2:16-CR-00534-CW-1)
Lee, Assistant Federal Public Defender (Virginia L. Grady,
Federal Public Defender, with him on the briefs), Office of
the Federal Public Defender, Denver, Colorado, for
Gregory S. Knapp, Attorney (Richard E. Zuckerman, Principal
Deputy Assistant Attorney General; S. Robert Lyons, Chief,
Criminal Appeals & Tax Enforcement Policy Section; and
Gregory Victor Davis, Attorney; with him on the brief), Tax
Division, U.S. Dept. of Justice, Washington, D.C. for
HOLMES, BALDOCK, and CARSON, Circuit Judges.
HOLMES, CIRCUIT JUDGE.
Hansen, a taxpayer who ascribes to legal theories associated
with sovereign-citizen and tax-protester movements, was
indicted for tax evasion in violation of 26 U.S.C. §
7201 and tax obstruction in violation of 26 U.S.C. §
7212(a). Before trial, Mr. Hansen purported to waive his
right to counsel. The district court held a hearing to
determine whether this waiver was made knowingly and
intelligently. At that hearing, the district court asked Mr.
Hansen, among other things, whether he understood he would be
required to follow federal procedural and evidentiary rules
if he proceeded without counsel. Mr. Hansen's response
was at best ambiguous and unclear; at one juncture, he
specifically told the court that he did not
understand that he would be required to abide by these rules.
Without seeking clarification from Mr. Hansen, the court
accepted the waiver. Mr. Hansen represented himself at trial,
and the jury convicted him of both tax evasion and tax
appeal, Mr. Hansen argues that his waiver of the right to
counsel was invalid because it was not made knowingly and
intelligently. We recount the relevant background and legal
standards before agreeing with Mr. Hansen. We conclude that
the court incorrectly determined that Mr. Hansen's waiver
was knowing and intelligent.
particular, we determine that the court failed to engage in a
sufficiently thorough colloquy with Mr. Hansen that would
properly warn him that-if he proceeded pro se-he would be
obliged to adhere to federal procedural and evidentiary
rules. We recognize that, under limited circumstances,
certain case- specific factors could permit us to conclude
that, despite the district court's inadequate warnings,
it nevertheless correctly determined that Mr. Hansen's
waiver of the right to counsel was knowing and intelligent at
the time it was made. But, after careful consideration of the
record, we discern no such case-specific factors.
we reverse the district court's waiver determination and
remand the case, instructing the court to vacate its judgment
regarding Mr. Hansen in full and to conduct further
proceedings consistent with this opinion.
start by describing (1) the conduct that led to Mr.
Hansen's indictment; (2) his indictment, initial
appearance, and surrounding events; (3) the circumstances of
the pretrial hearing that addressed the validity of Mr.
Hansen's purported waiver of the right to counsel; and
(4) pertinent aspects of Mr. Hansen's post-hearing
trial, Mr. Hansen testified that he began falling behind on
his taxes in 1999 after making the decision to pay various
creditors "instead of paying the IRS." R., Vol. II,
at 472, 546 (Trial Tr., dated July 7, 10-12, 2017); see
also id., Vol. III, at 68-69, ¶¶ 4-9
(Presentence Investigation Report ("PSR"), filed
Sept. 14, 2017). Over time, Mr. Hansen's tax liability
grew, with penalties and interest added to the original
unpaid taxes. By 2012, Mr. Hansen owed the IRS $342, 699.
Hansen initially tried to negotiate a payment plan with the
IRS, but he testified that he later made the unilateral
decision to send the IRS multiple checks written on closed
accounts. He also sent the IRS a letter claiming that these
checks would pay his outstanding taxes. While Mr. Hansen
was sending these checks, the IRS contacted Mr.
Hansen-through a tax-resolution firm that he had hired-to
instruct him to stop sending the checks. Even after Mr.
Hansen received this admonishment, he continued to send
additional checks written on closed accounts to the IRS; the
financial institution declined to honor these checks because
the accounts were closed. Mr. Hansen did make some valid
payments toward his outstanding taxes, however, but he never
reached a settlement agreement with the IRS.
Hansen was subsequently charged with committing tax evasion
in violation of 26 U.S.C. § 7201 and tax obstruction in
violation of 26 U.S.C. § 7212(a). Section 7201 imposes
criminal penalties on "[a]ny person who willfully
attempts in any manner to evade or defeat any tax imposed by
[the Internal Revenue Code] or the payment thereof."
Section 7212(a) criminally sanctions anyone who
"corruptly . . . endeavors to . . . impede any officer
or employee of the United States acting in an official
capacity under [the Internal Revenue Code], or in any other
way corruptly . . . obstructs or impedes, or endeavors to
obstruct or impede, the due administration of [the Internal
Revenue Code]." The operative indictment charged Mr.
Hansen with violating these laws by presenting the checks to
the IRS drawn on closed accounts and by sending the
accompanying letter to the IRS claiming that the checks had
paid his tax debt.
Hansen's initial appearance on these charges, a
magistrate judge informed him generally of his "right to
be represented in this proceeding," but Mr. Hansen
declined the appointment of counsel. R., Vol. IV, at 230-31,
235 (Tr. of Initial Appearance, dated Nov. 17, 2016). Waiver
of the right to counsel was not discussed further at this
hearing, though Mr. Hansen did indicate that he was aware of
the charges against him and the penalties associated with
those charges. He truthfully informed the magistrate judge
that he did not have a prior criminal record. See
id. at 243-44 ("I don't have a criminal history
. . . ."). The remainder of the hearing largely
concerned Mr. Hansen's challenge to the court's
jurisdiction over him and whether Mr. Hansen should be
released pending trial.
before this initial appearance, Mr. Hansen had begun
peppering the district court with filings questioning the
court's jurisdiction over him. For example, he submitted
a document, from "DeLynn of the Lawful House of
Hansen," that purported to "release and discharge
Judge Clark Waddoups from his emergency war powers
jurisdictional duties created by Section 17 of the
'Trading with the Enemy Act'" and to
"inform the court that [Mr. Hansen], a Private American
National Citizen who has harmed nobody and nothing [does] not
consent to statutory military jurisdiction of any kind."
Id., Vol. I, at 46 (Decl. of Political Status, and
Release and Discharge for Judge Clark Waddoups, filed Nov.
15, 2016). Throughout the proceedings, Mr. Hansen continued
to submit filings that reprised tax-protester and
sovereign-citizen theories similar to those that we have
previously rejected as frivolous. See, e.g.,
Ford v. Pryor, 552 F.3d 1174, 1177 n.2 (10th Cir.
2008); Lonsdale v. United States, 919 F.2d 1440,
1448 (10th Cir. 1990).
Mr. Hansen refused appointment of counsel at his initial
appearance, the district court later held a hearing to
determine whether Mr. Hansen was validly waiving his right to
counsel. The court started by asking Mr. Hansen whether he
wanted to proceed without counsel:
The Court: [I]s it your request, [Mr. Hansen], that you
Mr. Hansen: I am myself.
The Court: That is not my question. I know you're
yourself. My question is --
Mr. Hansen: I can't represent myself because I am myself.
The Court: Do you wish to appear without counsel?
Mr. Hansen: Yes.
R., Vol. I, at 225 (Tr. of Miscellaneous Hr'g, dated Jan.
9, 2017). Moving past this confusion, the judge proceeded to
read Mr. Hansen the indictment, to advise Mr. Hansen that the
maximum punishment allowed by § 7201 was a fine of up to
$100, 000 and imprisonment of up to five years, to advise Mr.
Hansen that the maximum punishment allowed by § 7212(a)
was a fine of up to $5, 000 and imprisonment of up to three
years,  and to warn Mr. Hansen that "tax
matters can be complicated" and that trial was fast
approaching. Id. at 231.
court asked Mr. Hansen whether he had any questions. Mr.
Hansen responded: "Your Honor, here is the defendant
Louis Delynn Hansen. This is the fiction that the court has
named as a defendant. This is not me." Id. at
232. The district court brushed off this response because it
was "not a question." Id.
court then asked the government whether anything else needed
to be addressed. At the government's request, the
district court proceeded to ask Mr. Hansen whether he was
under the influence of any drugs (he responded in the
negative), about his education (he had a chiropractic
doctorate), and about whether he had prior legal experience
(he did not have any). More specifically, as to the last item
(i.e., legal experience), Mr. Hansen-who had no prior
criminal record-responded "No," when the court
inquired whether he had "ever been sued or been a party
to a lawsuit." Id. at 234. Finally, the court
asked Mr. Hansen whether he understood "that in a legal
proceeding there are rules that the court will follow and
will require that all of the parties before the court
follow." Id. Mr. Hansen responded
providing these answers, Mr. Hansen asked whether accepting
counsel would "put [him] in the jurisdiction of the
court." Id. at 235. The judge explained to Mr.
Hansen that the court already had jurisdiction over him; Mr.
Hansen responded with a stream of jurisdictional statements
related to his earlier filings. See, e.g.,
id. ("I am not a U.S. citizen, I'm not a
citizen of the United States, I'm an American State
National."). The judge warned Mr. Hansen that these
jurisdictional arguments were frivolous, that they had been
rejected by the courts of appeals, and that he was facing the
risk of a term of imprisonment.
judge then circled back to a topic that he had touched on
The Court: You understand that if you choose to represent
yourself you will be required to comply with the rules of
procedure in this court and the rules of evidence. Do you
Mr. Hansen: No.
The Court: If you do not comply with the rules, you will not
-- if you do not commit yourself to being prepared to
comply with the rules, you're not in a position to
Mr. Hansen: I shouldn't even be in this court because I
am not the defendant.
Id. at 237 (emphases added). Mr. Hansen then veered
into a discussion of how "President FDR and [C]ongress
concocted a fraud upon the American people."
Id. at 238.
point, the government commented that it had "some pause
and concern as to whether it would be appropriate under these
circumstances for Mr. Hansen to represent himself"
because Mr. Hansen "specifically said he could not abide
by the rules of procedure and evidence." Id. at
239-40. Mr. Hansen denied that he had said he could not abide
by the rules, but when asked again whether he would
"endeavor to [his] best effort to comply with the rules
of procedure and the rules of evidence," he responded:
"I can't represent myself because I am myself."
Id. at 240. He then returned to his jurisdictional
arguments, asking the district court to "present this
United States of America with photo I.D. so that [he could]
face [his] accuser." Id. at 240-41.
Hansen again asked whether accepting representation would
"change anything as far as jurisdiction."
Id. at 241. After the district court patiently
repeated its assurances that it would not, the government,
for a second time, expressed "some significant concerns
as to whether it would be appropriate for the court to permit
[Mr. Hansen] to represent himself in this matter."
Id. at 245. In response, the court took a recess to
allow Mr. Hansen to meet privately with potential standby
counsel. Nothing in the record reveals the substance of that
his meeting with standby counsel, Mr. Hansen apologized for
his earlier outburst. He also affirmed that he would like the
standby counsel to be appointed. After this statement, the
district judge stated:
I find that you do fully understand the risks and that with
[standby counsel's] support and counsel you are capable
because of your education, intelligence and prior experience
. . . to represent yourself. I find that the risks of doing
so have been fully explained to you and the risk of a
prosecution that may result in a conviction is one that you
Id. at 247. The hearing moved on to unrelated issues
later pretrial conference, Mr. Hansen and the court further
discussed his decision to proceed pro se. Mr. Hansen told the
court that he would "take the lead" in his defense
but that the standby counsel would ask Mr. Hansen questions
when he testified. R., Vol. II, at 107 (Tr. of Pretrial
Conf., dated June 30, 2017). Mr. Hansen also wanted his
standby counsel to address "legal issues that may arise
outside of the presence of the jury." Id. at
107-08. During this hearing, the district court told Mr.
Hansen that "although [he had] chosen to present [his]
own defense, [he was] still required to follow the rules of
procedure and the rules of evidence." Id. at
119. Mr. Hansen, however, did not respond to this
trial, Mr. Hansen called three witnesses in addition to
himself and cross-examined the government's witnesses.
Throughout his opening and closing statements, he oscillated
between arguing that his checks had been accepted by the IRS
and arguing that he believed that the checks had been
accepted, even if they were not. The jury found him guilty on
both counts. The district court sentenced Mr. Hansen to
thirty-three months in prison, imposed three years of
supervised release with various special conditions of
supervision, and ordered that Mr. Hansen pay $342, 699 in
discuss the legal standards governing our review of whether
the district court erred in determining that Mr. Hansen
waived his right to counsel knowingly and intelligently. In
this discussion, we clarify that our caselaw requires us to
consider all of the circumstances of the particular case that
properly bear on whether the defendant knowingly and
intelligently waived the right to counsel-not just the
colloquy between the court and the defendant at the waiver
hearing. We also clarify that under controlling precedent the
trial court need not follow a precise script or litany in
providing warnings to a defendant regarding the hazards of
self-representation, and that, even if the court fails to
properly convey one or more important warnings to a
defendant, this failure will not in every instance
demonstrate that the court erred in finding the waiver
knowing and intelligent at the time it was made. In
particular, we recognize that, under limited circumstances,
certain case-specific factors could permit a reviewing court
to conclude that, despite the district court's inadequate
warnings, it correctly concluded that the defendant's
waiver of the right to counsel was knowing and intelligent at
the time it was made.
discussing the legal framework governing our review of Mr.
Hansen's waiver, we start with our standard of review.
Then, we address the substantive standards governing the
validity of a waiver of the right to counsel. Finally, we
reject two of Mr. Hansen's related arguments: (1) that
our exclusive focus in assessing the validity of a
defendant's waiver of the right to counsel is the trial
court's self-representation warnings to the defendant in
the waiver hearing (i.e., the so-called Faretta
hearing), and (2) that, if the court fails to adequately warn
the defendant about even one subject that the Supreme Court
highlighted in Von ...