The following case reveals a number of lessons on what not to do during a criminal tax investigation and jury trial. The mistakes started with not retaining an experienced criminal tax defense lawyer and the mistakes mounted from there until any chance of a favorable outcome had been squandered.
United States v. Pawelski, 2016 U.S. App. LEXIS 10168, No. 15-1056, (10th Cir. 2016)
United States v. Brokaw, 2016 U.S. App. LEXIS 10168, No. 15-1057, (10th Cir. 2016)
United States v. Vigil, 2016 U.S. App. LEXIS 10168, No. 15-1058, (10th Cir. 2016)
Filed: June 2, 2016 UNPUBLISHED OPINIONS.
(D. Colo.). (D. Ct. No. 1:13-CR-00392-CMA-1).
(D. Colo.). (D. Ct. No. 1:13-CR-00392-CMA-2).
(D. Colo.). (D. Ct. No. 1:13-CR-00392-CMA-3).
1. The district court did not err in denying defendant-A's motion to sever her trial from that of her codefendants, as the defenses were not so antagonistic as to be mutually exclusive, any disparity in the weight of the evidence did not warrant severance, and she did not make a strong showing of prejudice for purposes of Fed. R. Crim. P. 14(a);
2. After holding a Faretta hearing, defendant-C was deemed competent to waive his right to counsel and represent himself, as his waiver was knowingly, intelligent, and voluntary in the circumstances pursuant to U.S. Const. amend. VI;
3. The district court's statement that defendants could voluntarily absent themselves from their criminal trial was not error, and was consistent with Fed. R. Crim. P. 43(c), which allowed defendants to waive their right to be present after the trial began.
Outcome: Judgment affirmed.
Judges: Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.
Opinion by: Scott M. Matheson, Jr.
Apellants Brokaw, Pawelski, and Vigil were convicted of filing false claims for tax refunds, corruptly endeavoring to obstruct or impede administration of internal revenue laws, and conspiracy. They dismissed their court-appointed attorneys and represented themselves at trial and sentencing. They did not attend most of their trial and did not present a defense. They argue on appeal that the district court erred throughout trial and sentencing. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
A. Procedural Chronology:
1. September 23, 2013: Indictment.
2. February 18, 2014: Mr. Pawelski moved to dismiss his appointed counsel.
3. February 26, 2014: District court conducted a Faretta hearing on the motion, granted the motion, and denied Mr. Pawelski's request for advisory counsel.
4. April 1, 2014: Ms. Vigil moved for severance.
5. June 12, 2014: Motion to sever denied.
6. July 17, 2014:  Ms. Vigil moved to dismiss her appointed counsel.
7. August 15, 2014: District court conducted a Faretta hearing on the motion, granted the motion, and did not appoint advisory counsel.
8. October 3, 2014: District court granted Mr. Pawelski's renewed request for advisory counsel.
9. October 9, 2014: District court granted in part, denied in part, and referred to the Government in part Mr. Pawelski's request for issuance of subpoenas.
10. October 23, 2014: Mr. Pawelski moved to terminate advisory counsel and to withdraw his request to issue subpoenas; district court granted both motions on the first day of trial.
11. November 3, 2014: First day of trial, which consisted of jury selection.
12. November 7, 2014: Last day of trial. Defendants were convicted on all counts:
(1) filing false claims for tax refunds in violation of 18 U.S.C. § 287;
(2) conspiracy to file false claims for tax refunds in violation of 18 U.S.C. § 286;
(3) corruptly endeavoring to obstruct or impede the due administration of the internal revenue laws
in violation of 26 U.S.C. § 7212(a);
(4) conspiracy to corruptly endeavor to obstruct or impede the administration of the internal revenue laws
in violation of 18 U.S.C. § 371.
B. Factual Background
Appellants and codefendants are members of a group called the Republic of Colorado. They contend the United States and Colorado governments have no jurisdiction over them. As part of their tax-protesting activities, Mr. Brokaw and Mr. Pawelski presented seminars and distributed materials to individuals seeking to avoid their tax obligations. Although Ms. Vigil did not disseminate information or hold seminars like her codefendants did, the district court concluded during sentencing that she was heavily involved in the conspiracy for over four years.
The trial evidence showed that:
1. Appellants repeatedly filed IRS Forms 1099-OID with their Form 1040 tax returns that "falsely reported that financial institutions, lenders, law firms, government agencies, or other entities had withheld and paid over to the IRS interest income from accounts in their names, including mortgages, credit card accounts, and checking accounts." Mr. Brokaw filed six false claims seeking $358,218; Mr. Pawelski filed four false claims seeking $22,961,548; and Ms. Vigil filed one false claim seeking $372,169.
2. Appellants tried to eliminate their tax debts by submitting electronic fund transfer instruments to the IRS. Bank representatives explained at trial that the transfers were really checks drawn on closed bank accounts. Ms. Vigil stated the following in one email describing the attempted scheme: "That means you write checks on the account, and the bank has to honor them or 'pay' whoever you write the checks to, but you don't have to deposit any funds in the account!! What a deal . . . ."
3. Appellants harassed IRS and Department of Treasury employees who investigated and attempted to collect taxes from them by mailing them fraudulent liens claiming the employees owed them amounts of money ranging from tens of millions to billions of dollars. They mailed one fraudulent lien to an employee's home and attempted to obtain the home address of another employee.
C. Proceedings Related to Appellants' Issues on Appeal
Appellants' claims of error stem from the following district court proceedings:
1. Motion to sever: Ms. Vigil moved to sever her trial from the others' trial. The district court denied the motion.
2. Pro se representation: Each Defendant asked to dismiss appointed counsel  and proceed pro se. Mr. Pawelski requested appointment and, one week later, dismissal of advisory counsel, both of which the court granted. Ms. Vigil's dismissed counsel suggested that the district court appoint advisory counsel, but Ms. Vigil made no such request and said she did not want an attorney. The district court did not appoint advisory counsel for Ms. Vigil.
3. Request to issue subpoenas: Mr. Pawelski requested the court's assistance in the issuance of witness subpoenas, which the court granted in part and denied in part. Before trial, Mr. Pawelski withdrew his subpoena requests.
4. Voir dire: The Defendants disrupted jury selection and left the courtroom. This prompted questions from a prospective juror and answers from the court about the Defendants' conduct and how jurors should react to it.
5. Trial attendance: After the jury had been empaneled on the first day of trial, the district court advised the Defendants that they could waive their right to attend trial under Federal Rule of Criminal Procedure 43(c).
6. Final jury instructions: The final jury instructions omitted reference to Clara Mueller, who was originally charged in the indictment but was dismissed for medical reasons.
7. Sentencing: The court varied  downward in sentencing each defendant. Ms. Vigil and Mr. Pawelski challenge the substantive and procedural reasonableness of their sentences. The district court varied downward from a base level of 30 to 26 and imposed a 72-month sentence on Ms. Vigil. The court varied downward from a base level offense of 28 to 24 and imposed a 78-month sentence on Mr. Pawelski.
Appellants filed separate notices of appeal and separate briefs. Collectively, they raise 16 issues. Each Appellant has incorporated by reference arguments appearing in specific portions of one or both of the others' briefs. We granted Ms. Vigil's and Mr. Brokaw's motions to do so, and although Mr. Pawelski did not ask permission to incorporate the others' arguments in his brief, he did so anyway in his opening brief, and we will consider those arguments as to him as well.
Due to common appeal issues and the cross-referencing of arguments, we address Appellants' appeals in one opinion. As to each of the 16 issues, one, two, or all three of the Appellants have raised the issue. Accordingly, as we address each issue, we will note which of the Appellants has raised it.
A. ISSUE # 1: Motion to Sever (Ms. Vigil)
Before trial, Ms. Vigil moved to sever her trial from that of her codefendants. The district court denied the motion, concluding any disparity in the weight of evidence did not justify severance and that the jury could fairly consider the codefendants' defenses. Ms. Vigil argues the district court erred by denying her motion.
1. Additional Background
On April 1, 2014, Ms. Vigil moved to sever her trial from that of her codefendants. She sought a separate trial based on "(1) . . . the likelihood she would suffer prejudice, impacting her right to a fair trial; (2) the defenses of Vigil and her codefendants Brokaw and Pawelski were mutually antagonistic, as Vigil planned to raise a good faith defense; and (3) co-defendants Brokaw and Pawelski were substantially more involved in the wrongdoing."
On June 12, 2014, the district court denied the motion because (1) "the competing defenses [were not] so antagonistic as to be mutually exclusive," and "[t]he Tenth Circuit has repeatedly rejected the argument that a severance is proper based on a potential disparity in the amount of evidence against different defendants," (citing United States v. Emmons, 24 F.3d 1210, 1218-19 (10th Cir. 1994).
2. Standard of Review
"The decision whether to grant a severance is within the sound discretion of the trial court. We will not disturb the trial court's decision absent an affirmative showing of abuse of discretion and a strong showing of prejudice." United States v. Evans, 970 F.2d 663, 675 (10th Cir. 1992). "To establish abuse of discretion more is required than that separate trials might have offered a better chance for acquittal of one or more of the accused." Id.
3. Legal Standard
"[I]n a conspiracy trial it is preferred that persons charged together be tried together." United States v. Scott, 37 F.3d 1564, 1579 (10th Cir. 1994). Nonetheless, the district court may order a severance when joinder will prejudice a defendant. Fed. R. Crim. P. 14(a). A district court should grant severance when "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Morgan, 748 F.3d 1024, 1043 (10th Cir. 2014) "[T]rial courts have a continuing duty at all stages of the trial to grant a severance if prejudice does appear." United States v. Peveto, 881 F.2d 844, 857 (10th Cir. 2014).
Ms. Vigil asserts Mr. Brokaw and Mr. Pawelski "led and organized tax protesters, targeted susceptible individuals like Vigil, and duped them into believing they were participating in a legitimate tax protest." She stated that she planned to make a good-faith defense at trial and that she suffered prejudice because (1) the jury associated her with her codefendants, who made "incompetent and irrelevant arguments," and (2) her codefendants pressured her to abandon her good-faith defense.
Ms. Vigil has not made a "strong showing of prejudice." Although her counsel stated his intent to bring a good-faith defense, Ms. Vigil proceeded pro se and presented no defense at trial, much less a good-faith defense. She voluntarily absented herself until the last day of trial, when she delivered a closing argument focused on jury nullification. In addition, she points to no record evidence that her codefendants urged her to abandon her good-faith defense.
Ms. Vigil has not shown prejudice. The district court did not abuse its discretion in denying the motion to sever.
B. ISSUES # 2 and 3: Mr. Pawelski's Self-Representation
Mr. Pawelski argues the district court erred by concluding he waived his right to counsel and by failing to appoint advisory counsel.
1. ISSUE # 2: Waiver of the Right to Counsel (Mr. Pawelski)
Mr. Pawelski moved to dismiss his counsel and represent himself. The district court conducted a Faretta hearing and concluded Mr. Pawelski was competent to waive his right to counsel. Mr. Pawelski appealed and argued he was not competent to do so.
a. Additional background
At the Faretta hearing, the court asked Mr. Pawelski questions and learned that he:
Was 65 years old.
Has an associate's degree in computer science and a bachelor's degree in business.
Was not receiving medical treatment for any physical or mental condition.
Was taking only aspirin for medication.
Did not have a physical disability that would hinder his ability to represent himself.
Was not under the influence of alcohol or drugs.
Had never represented himself in a legal proceeding.
Understood the charges against him and the potential penalties.
Understood that representing himself put him at a "substantial professional disadvantage."
Understood he was not going to receive "special treatment" from the court or the Government on account of his pro se status.
Understood he would not be entitled to delay the trial on account of his pro se status.
Understood he was required to abide by procedural rules, act professionally in court, and take an oath before testifying.
Understood he could not appeal a conviction based on his lack of knowledge or skill.
Did not have any questions for the court and affirmed that he wanted his attorney to withdraw so that he could proceed pro se.
The court concluded Mr. Pawelski knowingly, voluntarily, and intentionally waived his right to counsel.
b. Standard of review
"We review the validity of a waiver to the right to counsel de novo." United States v. Vann, 776 F.3d 746, 762 (10th Cir. 2015).
c. Legal standard
A defendant has the right to represent himself and can do so by waiving his Sixth Amendment right to counsel. Faretta, 422 U.S. at 819. An invocation of the right to self-representation must satisfy four requirements:
First, the defendant must clearly and unequivocally inform the district court of his intention to represent himself. Second, the request must be timely and not for the purpose of delay. Third, the court must conduct a comprehensive formal inquiry to ensure that the defendant's waiver of the right to counsel is knowingly and intelligently made. Finally, the defendant must be able and willing to abide by rules of procedure and courtroom protocol. United States v. Tucker, 451 F.3d 1176, 1180 (10th Cir. 2006).
Mr. Pawelski focuses on the third requirement. District courts usually determine whether a defendant has voluntarily, knowingly, and intelligently waived his right to counsel by "conduct[ing] a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se." United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991).
That "formal inquiry," known as a Faretta hearing, is "probably the best way" to determine whether there has been a valid waiver. Vann, 776 F.3d at 763. A Faretta hearing, however, "is only a means to an end of ensuring a voluntary and intelligent waiver, and the absence of that means is not error as a matter of law." Id.; see also See United States v. Behrens, 551 F. App'x 452, 457 (10th Cir. 2014) (unpublished) (stating "no precise litany of questions must be asked of a defendant seeking to waive the right to counsel"). "[T]he true test for an intelligent waiver turns not only on the state of the record, but on all the circumstances of the case, including the defendant's age and education, his previous experience with criminal trials, and representation by counsel before trial." Vann, 776 F.3d at 763.
The district court did not err when it concluded Mr. Pawelski waived his right to counsel. Mr. Pawelski repeatedly affirmed that he wished to proceed without an attorney. Mr. Pawelski has a college education and was not receiving medical treatment or taking medication for mental health issues.
Mr. Pawelski asserts the district court erred by failing to explain potential defenses. Although we have expressed concern when courts do not discuss potential defenses, see, e.g., United States v. Padilla, 819 F.2d 952, 957 (10th Cir. 1987), there is no set script for Faretta hearings. Behrens, 551 F. App'x at 457. Indeed, we have concluded the complete absence of a Faretta hearing is "not error as a matter of law." Vann, 776 F.3d at 763. And, in Williamson, we found "no merit in [the defendant's] contention that a valid waiver of counsel requires an explanation of the law of aiding and abetting, or an explanation of the possible defenses to the charge." 806 F.2d at 220.
The concluded that the district court did not err in determining Mr. Pawelski knowingly, voluntarily, and intentionally waived his right to counsel.
2. ISSUE # 3: Advisory Counsel (Mr. Pawelski)
The court appointed Mr. Pawelski's former counsel as advisory counsel but not immediately after Mr. Pawelski asked the court to do so. Mr. Pawelski contends the district court erred by not appointing advisory counsel when Mr. Pawelski initially requested it.
a. Additional background
At his Faretta hearing, Mr. Pawelski requested that his attorney serve only as advisory counsel. The court denied the motion without prejudice and directed Mr. Pawelski to file a renewed motion explaining the basis for the request. The court also allowed Mr. Pawelski's attorney to withdraw.
b. Standard of review
We review this issue for abuse of discretion. "We believe that the appointment of [advisory] counsel is discretionary with the trial court and that, in the final analysis, abuse of that discretion is to be determined by whether the defendant received a fair trial." United States v. DePugh, 452 F.2d 915, 920 (10th Cir. 1971).
c. Legal standard
"[O]nce a defendant has declared his desire to proceed pro se, appointment of standby [or advisory] counsel is a preferred, though not mandatory, practice." Padilla, 819 F.2d at 959.3Link to the text of the note
Mr. Pawelski argued that the district court erred when it declined to appoint advisory counsel upon his first request at the February 26, 2014 hearing. This argument is meritless. First, the district court was not required to appoint advisory counsel. Padilla, 819 F.2d at 959. Second, the district court did appoint advisory counsel, whom Mr. Pawelski subsequently moved to dismiss three weeks later. The court did not abuse its discretion when it did not appoint advisory counsel immediately upon request.
C. ISSUE # 4: Request for Subpoenas (Mr. Pawelski)
Mr. Pawelski sought subpoenas for 53 witnesses. The court allowed at least two subpoenas to issue, denied some, and instructed Mr. Pawelski to send the remaining subpoenas to the Government to review. Mr. Pawelski contends the district court erred by not issuing the subpoenas and by seeking input from the Government.
1. Additional Background
At a final pretrial conference on October 9, 2014, Mr. Pawelski asked the court to issue 53 subpoenas. The court pointed out that "a significant number" were witnesses the prosecution planned to call at trial. The court then inquired about Mr. Pawelski's request to subpoena various individuals and entities that were not on the Government's witness list, including the United States, a judge who had issued a search warrant, the Secretary of the Treasury, the United States Attorney General, United States Marshals, and members of Congress.
Mr. Pawelski told the court he needed to subpoena the Government's witnesses to bring documents to trial. The court said:
I am not going to let you do discovery right before trial, Mr. Pawelski. These are issues that if you wanted documents, they should have been subpoenas that came before me several months ago. I will need to take a look at how broadly your request for documentation is. But if it is your entire file related to this, that is going to be overbroad.
On October 10, 2014, Mr. Pawelski filed a "Motion for Court Order for Petitioner to receive contact information." The motion asked for government witnesses' contact information so Mr. Pawelski could subpoena them. On October 23, 2014, Mr. Pawelski filed a motion seeking to "cancel the orders for subpoenas." The court granted the request on the first day of trial.
2. Standard of Review
We review "the district court's refusal to issue a subpoena pursuant to [Federal Rule of Criminal Procedure 17(b)] for an abuse of discretion." United States v. Hernandez Urista, 9 F.3d 82, 83 (10th Cir. 1993).
Mr. Pawelski contends the district court deprived him of his "right to present a defense, his right to compulsory process, and his right to fundamentally fair proceedings" by not issuing subpoenas under Federal Rule of Criminal Procedure 17. He also argues the district court erred by seeking input from the Government regarding the requested subpoenas. Mr. Pawelski's arguments fail for at least three reasons.
First, Rule 17 requires an indigent defendant to file an ex parte application with the court. Fed. R. Crim. P. 17(b); Pursley, 577 F.3d at 1230 . Mr. Pawelski concedes he failed to do so.
Second, Mr. Pawelski does not specify which subpoenas the district court did not issue. His briefing mentions only the two subpoenas that the court allowed to issue. He has therefore failed to demonstrate error related to specific unissued subpoenas.
Third, Mr. Pawelski withdrew his request for subpoenas. The district court did not abuse its discretion by not issuing subpoenas that Mr. Pawelski withdrew.
D. ISSUES # 5-7: Ms. Vigil's Self-Representation
Ms. Vigil contends the district court erred by failing to (1) order a competency evaluation before determining whether she adequately waived her right to counsel, (2) revoke her right to self-representation, and (3) appoint advisory counsel.
1. ISSUE # 5: Competency Evaluation (Ms. Vigil)
Ms. Vigil contends the district court erred by concluding she was competent to waive her right to counsel without first ordering a competency evaluation.
On August 15, 2014, the court held a Faretta hearing for Ms. Vigil. The court asked Ms. Vigil questions and learned that she:
Wanted to represent herself instead of obtaining a new lawyer.
Believed she was competent to represent herself.
Was 63 years old.
Had a high school degree and some college education.
Was not receiving medical treatment for any physical  or mental condition.
Was not taking any medication.
Did not have a physical disability that would hinder her ability to represent herself.
Was not under the influence of alcohol or drugs.
Had not been told she should proceed pro se.
Had never represented herself in a legal proceeding.
Understood the charges against her and the potential penalties.
Understood her attorney was experienced, it was "unwise" to represent herself, and she would not receive any "special treatment" from the court or the Government on account of her pro se status.
Understood she was required to act professionally in the courtroom and could be removed to a holding cell if she were disruptive.
Understood she could not testify without taking an oath.
Understood she could not appeal a conviction based on her lack of knowledge or skill as a pro se litigant.
Ms. Vigil stated the court had been "very clear" about the "dangers and disadvantages" of proceeding pro se and she did not have any questions for the court. Id.She affirmed that she wanted her attorney to withdraw so that she could proceed pro se.
The court concluded Ms. Vigil knowingly, voluntarily, and intentionally waived her right to counsel. Ms. Vigil contends the district court erred by determining she was competent to waive her right to counsel without first ordering a competency evaluation.
b. Standard of review
A district court's determination whether to order a competency evaluation is reviewed for an abuse of discretion. United States v. Patterson, 713 F.3d 1237, 1242 (10th Cir. 2013).
c. Legal standard
A defendant has the right to represent herself and can do so by waiving her Sixth Amendment right to counsel. Faretta, 422 U.S. at 819. District courts usually determine whether a defendant has waived that right by conducting a Faretta hearing. Vann, 776 F.3d at 763.
"[T]he standard both for competence to stand trial and to waive counsel is the same," and the "duty to ensure that a waiver is competent and knowing falls squarely on the trial court judge." Maynard v. Boone, 468 F.3d 665, 672, 677 (10th Cir. 2006). "Due process requires a trial court to conduct a competency hearing sua sponte whenever the evidence raises a bona fide doubt as to the defendant's competence to stand trial." Coleman v. Saffle, 912 F.2d 1217, 1224 (10th Cir. 1990).
In evaluating the need for a competency evaluation, the district court may rely on the defense counsel's observations. Bryson v. Ward, 187 F.3d 1193, 1201-02 (10th Cir. 1999) ("Defense counsel is often in the best position to determine whether a defendant's competency is questionable."). Further, the decision whether to order a competency evaluation "is a matter  wholly within the sound discretion of the trial court," and we give weight to the court's observations of the defendant's mental health status. United States v. Prince, 938 F.2d 1092, 1095 (10th Cir. 1991).
The district court did not order a competency evaluation after observing Ms. Vigil's in-court conduct and conducting a Faretta hearing. The court also received a motion from Ms. Vigil's counsel stating Dr. Kitei performed an informal evaluation and concluded Ms. Vigil "did not appear impaired by mental disease or defect." In sum, the court, Ms. Vigil's attorney, and Dr. Kitei observed no signs of mental impairment. And Ms. Vigil provided no medical evidence showing otherwise. We therefore conclude the district court did not abuse its discretion in not ordering an evaluation.
2. ISSUE # 6: Revocation of Self-Representation (Ms. Vigil)
The district court determined Ms. Vigil was competent to waive her Sixth Amendment right to counsel after a Faretta hearing. Ms. Vigil argues the court should have revoked her Sixth Amendment right to self-representation and imposed counsel on her after observing her conduct in subsequent hearings.
a. Standard of review
Ms. Vigil does not articulate a standard of review for this argument, and it appears to be an open question. We need not decide the issue because Ms. Vigil's arguments fail under de novo or abuse-of-discretion review.
Ms. Vigil argues the district court should have revoked her right to self-representation because she was (1) "unwilling to follow court protocol and procedure" and (2) "unable to perform basic trial tasks." Her argument is limited to the court's failure to revoke her Sixth Amendment right to self-representation; she does not argue the court erred in initially concluding she was competent to waive her Sixth Amendment right to counsel.
Ms. Vigil argues the district court should have revoked her right to self-representation because she "was not willing" to follow court protocol and procedure. She points out she refused to respond to the court's request to state her name for the record at "a motions hearing and trial preparation conference." Instead, she stated she was a "private," "living breathing woman of the land." She also asserts she filed "frivolous and incoherent documents with the district court." Ms. Vigil's argument fails for at least two reasons.
First, she cites no authority showing the district court was required to revoke her Sixth Amendment right to self-representation. Second, Ms. Vigil's behavior at hearings did not necessarily indicate she would continually refuse to follow the courtroom protocol and procedures. At the Faretta hearing, the court noted Ms. Vigil had "been very professional" throughout the prosecution, which had been ongoing for nearly a year. In addition, Ms. Vigil was absent for most of the trial, making it impossible to know whether she would have refused to follow the proper courtroom protocol and procedures throughout the trial.
Ms. Vigil's professional conduct throughout much of the prosecution, and her absence from trial, we conclude the district court did not err.
ii. Ms. Vigil's inability to perform basic trial tasks
Ms. Vigil next contends the district court should have revoked her self-representation because she could not perform basic trial tasks and made frivolous arguments.
Ms. Vigil could not demonstrate she lacked the ability to perform basic trial tasks because she was absent for most of the trial. The district court did not err in not revoking Ms. Vigil's Sixth Amendment right to self-representation.
3. ISSUE # 7: Advisory Counsel (Ms. Vigil)
Ms. Vigil argues the district court erred by not appointing advisory counsel for her.
Ms. Vigil did not request advisory counsel. At the Faretta hearing, her dismissed attorney suggested that the court consider appointing advisory counsel. The court stated it was leery to do so because Ms. Vigil had insisted on representing herself and expressed "distrust" of and "animosity" toward her dismissed attorney based on his unwillingness to advance tax-protestor arguments.
Because the district court was not required to appoint advisory counsel, we cannot conclude it abused its discretion by declining to do so.
E. ISSUE # 8: The District Court's Statements to the Venire ( Brokaw, Pawelski, and Vigil)
Appellants contend the district court erred when it responded to a statement by the potential juror in chair number 3. Mr. Brokaw and Ms. Vigil both briefed the issue and incorporated each other's arguments. Mr. Pawelski incorporated both arguments. Appellants argue the court's statements infringed their rights under the Fifth Amendment and violated Federal Rule of Evidence 404, which excludes evidence of bad character.
1. Additional Background
a. Appellants' disruption and exit
Appellants' jury trial began on November 1, 2014, with jury selection. Before the potential jurors entered the courtroom, the court addressed some of Appellants' motions. Appellants began interrupting the court. The court admonished them to sit down.
They refused to sit and continued interrupting, stating, among other things, they did not consent to the court's jurisdiction, they had "filed a revisionary interest," and they were the "beneficiar[ies] for the trust." At one point, Ms. Vigil asked the court six times, "Do you have a claim against me?"
The court eventually brought the jury venire in. While the court was giving instructions to the jury venire, Appellants placed their birth certificates on the counsel table and each stated, "The defendants are on the table." They then started leaving the courtroom. The court told them to stop and then stated, "Let the record reflect that the defendants have decided to leave the courtroom." Id. at 188. The transcript then states, "(Defendants are removed from the courtroom.)"
While the court continued with voir dire, Appellants were escorted to a holding cell where they could hear an audio feed of the proceedings. They did not participate in jury selection.
b. The potential juror's question
After Appellants left the courtroom, the court explained to the venire that the Defendants were presumed innocent, the burden of proof was on the Government, the Defendants had a right not to testify, and the Defendants did not have the burden of calling witnesses or presenting evidence.
The prospective juror sitting in chair number 3 had the following exchange with the court:
CHAIR NO. 3: I don't know if this really affects anything, but just the display this morning, I don't know at what point that weighs into my impartiality.
THE COURT: Well, and I have warned the defendants about that. And they made the choice to go ahead and proceed. So, I mean, your decision, if you are chosen as a juror, is to just take in all of the facts. You will have to judge credibility and all of that. And the way people behave is a part of that.
CHAIR NO. 3: Okay.
Later during voir dire, the potential juror stated, "I would base my verdict wholly on the evidence presented. And I am a rules girl, so I would follow instructions." She was subsequently selected as a juror.
During the final jury instructions at the close of evidence, the court stated:
The Defendants' voluntary absence from the courtroom during the trial is unrelated to their guilt or innocence. Their absence is not evidence in this case and should not be considered as you decide whether each Defendant has been proved guilty of the crimes charged. My legal rulings are not evidence. My comments and questions are not evidence.
Mr. Brokaw contends the district court's statement constituted reversible error for three reasons. First, he argues the statement infringed his Fifth Amendment right not to testify "by tending to force [him] to take the stand in reaction to or in contemplation of the comments on [his] behavior at trial."
Second, he claims the statement infringed his Fifth Amendment right to be convicted only on the basis of the evidence at trial and that he had "no opportunity to present evidence supporting an inference contrary to the inference suggested by [the court]."
Third, he contends the statement was evidence of bad character, which Federal Rule of Evidence 404 prohibits.
Ms. Vigil argues the court's comment violated her right to an impartial jury, undermined the presumption of innocence, and suggested to the jury that the court had made its own credibility determination.
Even assuming the district court's statement constituted error that was plain, Appellants fail on step three of plain-error review because they have not shown prejudice. Olano, 507 U.S. at 732 (stating an error affects substantial rights if it is prejudicial). The district court instructed the jury at least two times to base its verdict solely on the trial evidence. As soon as the jury was empaneled on the first day of trial, the district court told it to consider only evidence presented at trial. At the close of evidence, the court directed the jury not to consider the Defendants' absence or the court's statements as evidence. Under our precedent, we presume the jury followed the instructions. They have not shown "a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." Dominguez Benitez, 542 U.S. at 75.
F. ISSUE # 9: The District Court's Failure to Dismiss Potential Juror ( Brokaw, Pawelski, and Vigil)
Appellantsargue the district court erred by failing to dismiss the potential juror in chair number 3. Mr. Brokaw briefed the issue; Mr. Pawelski and Ms. Vigil incorporated Mr. Brokaw's argument.
1. Standard of Review
The parties dispute the standard of review. Appellants argue we consider de novo whether a defendant's Sixth Amendment right to an impartial jury has been violated. The Court decided that it did not need to determine which standard applied because there was no error.
G. ISSUE # 10: The District Court's Statements Regarding the Defendants'
Obligation to Attend Trial (Brokaw, Pawelski, and Vigil)
Appellants contend the district court erred when it stated they could decide not to attend trial. Ms. Vigil briefed the issue; Mr. Brokaw and Mr. Pawelski incorporated her argument.
After the court released the jury panel at the close of voir dire, the Defendants were brought back to the courtroom. The court stated:
Mr. Brokaw, Mr. Pawelski, and Ms. Vigil, I have been trying to figure out how we should proceed in the face of your refusing to participate in these proceedings. And I have conducted some research, Rule 43(c)(1) of the Federal Rules of Criminal Procedure allow a defendant who was initially present at trial, which you have been, to waive the right to be present when you voluntarily absent yourself after the trial has begun, which is what you have essentially done, saying I have no jurisdiction.
So you can voluntarily waive your right to be present after the trial begins if you chose to do so. . . .
Now, I strongly advise you against what you are doing in terms of absenting yourself from these proceedings. I think it is important and in your best interest to be here. That being said, the decision ultimately whether you are present or not is yours. This trial will go on without you. And so you will still be subject to the verdict. . . . But I don't want to have to put you into custody at this point. I don't want to force you to attend trial if you do not wish to participate. You have to understand, though, that if you don't participate and you are convicted, you are going to have to surrender as the Court will order you to do.
The court then asked if the Defendants understood. Each answered in the affirmative. The court instructed the Defendants to notify their probation officers if they did not plan to attend the trial and that the Defendants were required to be in court when the verdict is returned. All three Defendants were absent until the final day of trial. During the final day, they performed limited cross-examination and gave closing arguments.
"One of the most basic of the rights guaranteed by the Confrontation Clause of the Sixth Amendment is the accused's right to be present at every stage of his trial." Ellis v. Oklahoma, 430 F.2d 1352, 1354 (10th Cir. 1970). But a defendant can choose not to attend trial. In Taylor v. United States, 414 U.S. 17, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973), the Supreme Court held that a district court can proceed with a trial when a defendant voluntarily absents himself after it starts. 414 U.S. at 19 (stating a defendant's voluntary absence "does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present"). Federal Rule of Criminal Procedure 43(c) provides that a defendant can waive his right to be present at trial.
The district court did not err when it told Appellants they could waive their right to attend trial.
H. ISSUE # 11: Jury Instructions (Mr. Brokaw, Mr. Pawelski, and Ms. Vigil)
Appellants argue the jury instructions were erroneous.
"It is axiomatic in our legal system that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him." United States v. Farr, 536 F.3d 1174, 1179 (10th Cir. 2008) (quotation omitted). The Fifth and Sixth Amendments prohibit the government from actually or constructively broadening an indictment without resubmitting it to the grand jury. Stirone v. United States, 361 U.S. 212, 215-16, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960); Id. at 1179.
The question here is whether the jury instructions broadened the conspiracy charges. "[T]he evidence in a conspiracy prosecution must show that two or more persons agreed to violate the law, that the defendant knew at least the essential objectives of the conspiracy, and that the defendant knowingly and voluntarily became a part of it." United States v. Morehead, 959 F.2d 1489, 1499 (10th Cir. 1992) (quotation omitted); see also United States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009) ("[T]he government must prove the following elements beyond a reasonable doubt: (1) an agreement with another person to violate the law, (2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary involvement, and (4) interdependence among the alleged conspirators." (quotation omitted)).
The jury instructions did not impermissibly amend the indictment. There was no error.
I. ISSUES # 12-16: Sentencing
Appellants allege their sentences were procedurally unreasonable. Ms. Vigil alone argues her sentence was substantively unreasonable.
Mr. Pawelski's presentence report recommended, and the court adopted, a base offense level of 28 under § 2T1.1 based on the "total amount of false refunds" he claimed—$23,691,935—and on the "intended tax loss of at least $7,272,680 based on the additional tax debts that the defendants attempted to avoid through their obstructive conduct." Appellants argue the district court should have applied the base offense level of 6 under § 2T1.1 because they did not receive any actual tax refunds.
The success or failure of tax evasion, however, does not govern the applicability of the guidelines."
There was no error. The Court concluded that Appellants' sentences were neither procedurally nor substantially unreasonable.
The Court concluded the district court committed no reversible error. The Court affirmed the convictions as to each Appellant in each appeal.