SEYMOUR, Circuit Judge.
Weninger was convicted of a misdemeanor for failing to file federal income tax returns for the years 1973 and 1974 in violation of 26 U.S.C. § 7203. At trial, Weninger was permitted to appear pro se to conduct his defense. Weninger appeals to this court through an attorney, contending primarily that (1) his trial was conducted in violation of the Sixth Amendment because he was denied both the right to counsel and
Sixth Amendment Rights
Weninger is a self-made millionaire. The evidence at trial documented that during 1973 and 1974, Weninger's income exceeded $180,000. Weninger told Dr. Currier, a court appointed psychiatrist who prepared a presentencing report, that he did not file tax returns as a deliberate protest against the condition of our country. In addition, Dr. Currier's report states that Weninger elected not to have an attorney represent him because "if he asked for help, people might think he was not sincere in his effort." Rec., supp. vol. I, at 8.
The Sixth Amendment provides a defendant with the constitutional right to defend against a criminal charge pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, the assertion of this right is conditioned on a knowing and intelligent waiver of the constitutional right to the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). To ascertain whether Weninger knowingly and intelligently waived his right to counsel, we must consider "the total circumstances of the individual case including background, experience and the conduct of the accused person." United States v. Warledo, 557 F.2d 721, 727 (10th Cir.1977) (citing Johnson, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. 1461).
It is the duty of the trial judge to initially determine whether an intelligent and competent waiver of counsel has been made by the accused. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
Id. at 723-24, 68 S.Ct. at 323, 92 L.Ed. 309. We believe the evidence shows that Judge Winner discharged this duty in the present case.
When Weninger appeared to defend himself at trial, Judge Winner recognized that Weninger's "protest" defense was without merit and asked him, "if I give you time, will you hire a lawyer, Mr. Weninger?" Rec., vol. III, at 15. Weninger answered in the affirmative but stated that he would need "anything from 100 to 120 days" to retain counsel. Id. The judge denied this request as unreasonable and proceeded with the trial.
Shortly thereafter, the judge excused the jury and implored Weninger to hire counsel:
Rec., vol. III, at 31-33. After the recess, the following colloquy took place:
Id. at 34-37 (emphasis added). The judge then apologized to the jury for the delay, explaining that he could not "in good conscience, permit this case to go forward today without the defendants giving further consideration to the wisdom, or lack thereof, of proceeding in this trial without counsel." Id. at 39.
The next day, Weninger stated that he had engaged counsel but the lawyer had not yet appeared. Although the judge allowed the trial to proceed, he implied that a motion for a mistrial might be proper. When the lawyer arrived, the judge again called a recess. For reasons that do not appear in the record, however, this lawyer was not retained and Weninger continued to represent himself.
The record indicates that Weninger had no intention of hiring a lawyer unless the lawyer agreed with his views about the invalidity of the tax laws. However, the right to assistance of counsel does not imply the absolute right to counsel of one's choice. United States v. Dolan, 570 F.2d 1177, 1182-83 (3d Cir. 1978). A defendant's right to obtain counsel of his choice must be balanced against the need for the efficient and effective administration of criminal justice. United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1214 (3d Cir. 1969). And see Kates v. Nelson, 435 F.2d 1085, 1088-89 (9th Cir. 1970) (quoting United States ex rel. Davis v. McMann, 386 F.2d 611, 618-19 (2d Cir. 1967)), where the court said:
Weninger first indicated on July 3, 1978, in an application for additional time to file motions, that he intended to retain counsel. He had ample time to do so before
The record as a whole indicates that, although Weninger was made "aware of the dangers and disadvantages of self-representation," Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d 562, he strategically chose to appear pro se. However, after the jury refused to uphold his patriotic protest against the federal income tax, Weninger retained counsel to contend on appeal that the conduct of his trial was constitutionally impermissible. We refuse to permit this type of game to be played with the courts. We hold that Weninger's stubborn failure to hire an attorney constituted a knowing and intelligent waiver of the right to assistance of counsel.
Weninger also contends that his inability to cross-examine witnesses or object to exhibits violated his Sixth Amendment right of confrontation. We point out that the trial court, sympathetic to the disadvantages of self-representation, assisted the defendant at times during the trial by objecting to government questions and exhibits. In any event, the Court noted in Faretta that a defendant who exercises his right to represent himself cannot be heard to complain on appeal that his own representation was ineffective. 422 U.S. at 835 n. 46, 95 S.Ct. at 2541 n. 46, 45 L.Ed.2d 562 and see United States v. Rowe, 565 F.2d 635 (10th Cir. 1977). Since we hold that Weninger was properly permitted to appear pro se, his lack of legal expertise cannot be the basis for a reversal.
Motion for New Trial
Finally, Weninger argues that new evidence was uncovered after the verdict which required the granting of his motion for a new trial because it established that he did not have the requisite criminal intent to violate 26 U.S.C. § 7203. The standard for granting such a motion based on new evidence is extremely stringent. One criterion is that the evidence "is material and of such a character that on a new trial such evidence would probably produce a different result." United States v. Maestas, 523 F.2d 316, 320 (10th Cir. 1975).
The source of the new evidence here was Dr. Currier who stated in his presentence report that, in his opinion as a psychiatrist, "there was no criminal intent" when Weninger failed to file his income tax return. Rec., supp. vol. I, at 11. His judgment appears to have been based on the fact that Weninger was motivated by a good faith belief that nonpayment of his taxes would somehow alert the country about problems in the United States' economy.
However, the "willfulness" requirement of 26 U.S.C. § 7203 has been defined as "a voluntary, intentional violation of a known legal duty." United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973). Thus, no matter how earnestly a defendant disagrees with the income tax or believes it unconstitutional, he will be guilty of violating section 7203 if he deliberately fails to file. United States v. Ware, 608 F.2d 400 (10th Cir. 1979). Good motive is irrelevant if the defendant knows of his duty to file. United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976).
In this case, an agent of the Internal Revenue Service testified that Weninger had filed income tax returns for the years 1969-1972. Weninger conceded that he failed to file for the years 1973 and 1974 as a protest. He told Dr. Currier that "he did not file his tax returns deliberately in order to make an issue that he hoped would stir people to some positive action." Rec., supp. vol. I, at 7. When Dr. Currier asked him if he believed he had broken the law, "[h]e answered in the affirmative but said he felt there was no criminal intent because he was
We find Weninger's remaining contentions without merit.