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United States v. Hansen

United States Court of Appeals, Tenth Circuit

July 15, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LOUIS DELYNN HANSEN, Defendant-Appellant.

          Appeal from the United States District Court for the District of Utah (D.C. No. 2:16-CR-00534-CW-1)

          Josh 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 Defendant-Appellant.

          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 Plaintiff-Appellee.

          Before HOLMES, BALDOCK, and CARSON, Circuit Judges.

          HOLMES, CIRCUIT JUDGE.

         Louis 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 obstruction.

         On 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.

         In 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.

         Accordingly, 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.

         I

         We 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 conduct.

         A

         At 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.

         Mr. 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.[1] 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.

         B

         Mr. 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.

         At Mr. 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.

         Even 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).

         C

         Because 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 represent yourself?
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, [2] and to warn Mr. Hansen that "tax matters can be complicated" and that trial was fast approaching. Id. at 231.

         The 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.

         The 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 "Yes." Id.

         After 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.

         The judge then circled back to a topic that he had touched on earlier:

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 understand that?
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 represent yourself.
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.

         At this 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.

         Mr. 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 meeting.

         After 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 understand.

Id. at 247. The hearing moved on to unrelated issues before concluding.

         D

         At a 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 statement.

         At 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 restitution.

         Mr. Hansen appealed.

         II

         We now 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.

         A

         In 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 ...


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