
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2478                                                UNITED STATES,                                      Appellee,                                          v.                                  ROBERT G. BEVERLY,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Robert G. Beverly on brief pro se.               _________________               Lincoln  C. Almond, United States Attorney, James A. Bruton,               __________________                          _______________          Attorney General, Robert E. Lindsay, Alan Hechtkopf and  Scott A.                            _________________  ______________      ________          Schumacher, Attorneys Tax Division, on brief for appellee.          __________                                  __________________                                     May 11, 1993                                  __________________                 Per  Curiam.    The appellant,  Robert  G.  Beverly, was                 ___________            convicted,  after a  jury-waived  trial,  of  two  counts  of            failure to  file an  income tax return,  and three  counts of            income tax evasion.  We affirm the conviction.                                          I                                          _                 Beverly's principal argument on appeal concerns the fact            that he  represented  himself at  trial.   In  his  pre-trial            appearances, Beverly twice stated that he wanted a lawyer and            was unable to  afford one.   He even filed  a motion  seeking            appointed  counsel.   However,  a  week  after  he filed  the            motion, Beverly withdrew  it without explanation, and  on the            first day  of trial he unequivocally stated  his intention to            go forward without a lawyer.                  Beverly now argues that the district court "was under an            obligation  of  the  Constitution to  appoint  Assistance  of            Counsel regardless of the defendants  [sic] financial status.            . . ."   This is incorrect.   The Criminal Justice  Act (CJA)            requires appointed  counsel only for  "any person financially            unable to obtain adequate representation. . . ."  18 U.S.C.              3006A(a).   Although the CJA  requires the district  court to            conduct an "appropriate inquiry" into the financial status of            a   defendant  who  seeks  appointed  counsel,  18  U.S.C.               3006A(b), the defendant bears the burden of proving financial            inability. United  States v.  Harris, 707  F.2d 653, 660  (2d                       ______________     ______            Cir. 1983) and cases cited therein.                                           -2-                 Beverly appears  to  be arguing  (1)  that, had  he  not            withdrawn  his  motion  for  appointed counsel,  the  court's            "inquiry" would have consisted of scrutinizing a standard CJA            application  and  affidavit  disclosing  Beverly's  financial            status,  and (2)  that such  an inquiry  would not  have been            "appropriate"  because it  would  have  required  Beverly  to            surrender  his  Fifth  Amendment  right  not  to  incriminate            himself in order to obtain  the protection of counsel due him            under the Sixth Amendment.                  Some courts  have  recognized a  potential for  conflict            between a criminal  defendant's Fifth Amendment right  not to            incriminate  himself  and  his obligation  under  the  CJA to            demonstrate  that he  is unable  to pay  for a  lawyer.   See                                                                      ___            United States v.  Gravatt, 868 F.2d 585, 589  (3d Cir. 1989);            _____________     _______            United States  v. Moore, 671  F.2d 139, 140 (5th  Cir. 1982);            _____________     _____            United  States v. Anderson,  567 F.2d  839, 840-41  (8th Cir.            ______________    ________            1977).   However,  even  these courts  have  not allowed  tax            defendants  to obtain  free  counsel regardless  of financial            need.   Rather,  they have  required  the defendants  to bear            their  burden  of proof,  subject  to  either (1)  in  camera                                                               __________            inspection  of  information  about  their  finances,  or  (2)            assurances that  such information  will not  be used  against            them.  See  United States v. Gravatt,  868 F.2d at 590.   See                   ___  _____________    _______                      ___            also United States v.  Davis, 958 F.2d 47,  49 n.4 (4th  Cir.            ____ _____________     _____            1992) (district  court avoided Fifth  Amendment challenge  by                                         -3-            examining  defendant ex  parte and  sealing answers);  United                                 _________                         ______            States v.  Anderson, 567 F.2d  at 840 (district  court should            ______     ________            have reviewed financial information in camera); United States                                                _________   _____________            v. Ellsworth, 547 F.2d 1096,  1098 (9th Cir. 1976) (affirming               _________            where  district   court  assured  defendant   that  financial            information could not  be used for further prosecution).  But                                                                      ___            see  United States v.  Krzyske, 836  F.2d 1013,  1018-19 (6th            ___  _____________     _______            Cir.  1988) (district  court not  required to hold  in camera                                                                _________            hearing  where  defendant asserted  Fifth  Amendment rights);            United States v. Peister, 631  F.2d 658, 662 (10th Cir. 1980)            _____________    _______            (district court not required to grant immunity where conflict            with Fifth Amendment is speculative and prospective only).                 We do not  have to decide here whether  a district court            must  grant immunity  or hold  an  in camera  hearing when  a                                               _________            criminal  defendant asks for  appointed counsel but  raises a            legitimate Fifth Amendment concern about providing the needed            financial  information,   because  Beverly   --  unlike   the            defendants in  the cases cited above  -- did not  even make a            "colorable assertion"  to  the  district  court  that  public            disclosure  of his  financial information  would  violate his            Fifth Amendment rights.   Cf. United  States v. Gravatt,  868                                      ___ ______________    _______            F.2d  at 588.   Beverly did tell  the court that  he wanted a            lawyer  and could  not  afford one  that would  represent him            "properly,"  but in his conversations with the district judge            about the issue of representation he never asserted his Fifth                                         -4-            Amendment  rights or attempted to explain how his response to            the standard CJA inquiries would compromise those rights.  He            filed   a  motion  for  appointed  counsel  but  provided  no            financial information,  and then withdrew  the motion without            comment, and certainly without suggesting that he had done so            in order to preserve his right not to incriminate himself.1                 In sum, Beverly never suggested, much less demonstrated,            to the district court that there was any real tension between            his  rights under  the Fifth  Amendment  and his  obligations            under the  CJA, and  hence never gave  the district  court an            opportunity either to resolve such tension by allowing him to            produce evidence of his financial status subject to in camera                                                                _________            inspection or a  grant of  immunity, or to  refuse to do  so.            His assertion on  appeal that he was put  to an impermissible            "choice"   between    conflicting   constitutional    rights,            therefore,  is too speculative  to merit relief.   See United                                                               ___ ______            States v. Peister, 631 F.2d at 662.            ______    _______                                            ____________________            1.  Beverly's  statement to  Pre-Trial Services  that he  was            earning $4,000 a  month, the fact that  he was able to  pay a            lawyer  to represent him  during the IRS'  investigation, and            the evidence produced at trial that he owned two condominiums            and a  boat, and  had earned more  than $60,000  in 1985  and            1986,  and more  than $85,000  in 1987, all  suggest, rather,            that Beverly  withdrew the  motion because  he had  concluded            that he would not be able to convince the court to give him a            free  lawyer.   This  evidence also  suggests  that, had  the            district court reviewed Beverly's financial status (either in                                                                       __            camera  or after a grant  of immunity), it would nevertheless            ______            have concluded that he was  not entitled to appointed counsel            under the CJA.                                         -5-                 Nor do we  find any other suggestion in  the record that            Beverly's decision to  forego counsel was less  than "knowing            and intelligent."   Beverly  argues that  the district  court            should  have followed  a prescribed  series  of questions  in            order to ensure that the waiver was valid.  See United States                                                        ___ _____________            v. McDowell, 814 F.2d 245, 250, 251-52 (6th Cir.  1987).  But               ________            this court  does not require  the district court to  "issue a            particular warning or  make specific findings of  fact before            it allows  a defendant to proceed pro  se."  United States v.                                                         _____________            Hafen, 726 F.2d  21, 25 (1st Cir.  1984).  We have  said that            _____            the   district  court  can  allow  a  criminal  defendant  to            represent himself if all of the information available to  the            court  indicates that  the  defendant  (1)  understands  "the            magnitude  of the undertaking and the 'disadvantages of self-            representation,'"  (2) is  aware  "that  there are  technical            rules governing the conduct of a trial, and that presenting a            defense is not  a simple matter of telling  one's story," and            (3) appreciates "the  seriousness of  the charge  and of  the            penalties  he may  be exposed  to before  deciding to  take a            chance on his own skill."  Maynard v. Meachum, 545  F.2d 273,                                       _______    _______            279 (1st Cir. 1976).                 Here,  on the  first day  of trial,  the district  judge            quite  explicitly asked Beverly whether he understood that he            had a right to  a lawyer, and whether he chose nonetheless to            "go ahead without one," and Beverly quite explicitly answered                                         -6-            that he  did.  By that time, moreover,  the court had, in one            pre-trial  hearing,  described  the  charges  to  Beverly  as            "serious," explained the  potential penalties, and  commented            on the  "unique" nature of  some of the motions  that Beverly            had  filed, and  had  heard  Beverly,  in  another  pre-trial            hearing, acknowledge that he was  not an attorney and that he            did not  "know all the procedures that this Court needs me to            perform."  Although the process of review would be simplified            if  the  district  court  would  engage in  a  more  extended            colloquy and give a more specific warning than was done here,            and if it  would "provide[] a short statement  of its reasons            for finding a defendant's waiver of counsel to be knowing and            intelligent,"  United States  v. Hafen,  726 F.2d  at 25,  we                           _____________     _____            cannot find, on the record before us, that the district court            erred in allowing Beverly to represent himself at trial.                                          II                                          __                 Beverly's remaining  arguments do  not require  extended            discussion.                   1. Beverly  contends that  the testimony  of IRS  agents            concerning  their interview with him in 1989 was inadmissible            because Beverly had not been properly warned about his  Fifth            Amendment  rights  before  the   interview  began.    Beverly            concedes  that  the  agents  advised  him  of  his rights  in            "absolute  accordance"  with  IRS  procedures  for  so-called            "noncustodial" interviews, but says that his interview was in                                         -7-            fact  "custodial" and therefore  required the agents  to give            him full-blown Miranda warnings.                           _______                 "In evaluating whether a suspect was in custody and thus            entitled to Miranda warnings, we look to see, using objective                        _______            standards, whether there was a manifestation of a significant            deprivation  of  or  restraint on  the  suspect's  freedom of            movement,  taking into account  such factors as  'whether the            suspect  was questioned  in  familiar  or  at  least  neutral            surroundings, the number of law  enforcement officers present            at  the scene, the  degree of physical  restraint placed upon            the   suspect,  and  the   duration  and  character   of  the            interrogation.'"   United States v. Lanni, 951  F.2d 440, 442                               _____________    _____            (1st  Cir. 1991)  (citations  omitted).    Beverly,  who  was            represented by  a lawyer  during the  IRS investigation,  was            interviewed at the lawyer's office, in the lawyer's presence,            by two IRS agents.  There is nothing in the record to suggest            that the  agents physically  restrained Beverly  or gave  him            reason  to  think  he  could  not   leave  or  terminate  the            interview.   The questioning  lasted,  according to  Beverly,            only three hours,  and we see no evidence  that the questions            were coercive in nature, or that the agents were  overbearing            in manner.   In short, there  are no  indicia of a  custodial            interrogation, and  Beverly's protests  that he  nevertheless            felt  intimidated will  not avail  him, because  the  test of            ____            custody  is  objective:  "the  only  relevant  inquiry  [with                                         -8-            respect  to  whether a  person  was  in  custody for  Miranda                                                                  _______            purposes] is how  a reasonable man in  the suspect's position                                __________            would have understood  his situation."  Berkemer  v. McCarty,                                                    ________     _______            468 U.S. 420, 442 (1984).2                 2.  Beverly  says   that  IRS  and   Justice  Department            procedures required the prosecutor in this case to obtain (a)            a Special Agent's Report, (b) a Criminal Referral Letter, (c)            a Prosecution  Report, and (d)  a signed Form 9131  before he            went to the grand jury for an indictment.  He claims that the            prosecutor did not obtain these documents.                  We may assume  the truth of these  premises because they            do not  support  Beverly's  conclusion:  that  the  resulting            indictment  was flawed  and that  the  trial court  therefore            lacked  jurisdiction to convict.  "[A]n IRS agent's violation            of a regulation of this sort does not prevent prosecution and            conviction of a defendant. . .  ."  United States v. Michaud,                                                _____________    _______            860 F.2d  495, 499 (1st  Cir. 1988).  The  procedures Beverly            describes were not  required by statute or  the Constitution,            nor  can Beverly  reasonably contend  that  he relied  on the            procedures,  or  that their  breach  had  any effect  on  his            conduct.   United States  v.  Caceres, 440  U.S. 741,  749-53                       _____________      _______            (1979).  For  similar reasons, we hold  that even if the  IRS                                            ____________________            2.  Nor do  we  see  any  evidence that  the  agents  tricked            Beverly into waiving  his Miranda rights.  Beverly  says that                                      _______            the IRS  agent who conducted  the interview told him  that he            was investigating the possibility of criminal violations, and            that appears to be exactly what the agent was doing.                                         -9-            violated  the  Privacy  Act  by  failing  to  keep  Beverly's            Individual  Master File  up-to-date,  the delinquency  caused            Beverly  no  prejudice  at  trial  and  does  not  affect the            validity of his conviction.                 3. The  district court did  not deprive  Beverly of  any            discovery to which  he was entitled.  The government complied            with  the  district  court's   uniform  order  for  automatic            discovery, and Beverly has  not shown us that the  prosecutor            withheld anything which  the order required him  to disclose,            or that  he  found and  failed  to disclose  any  exculpatory            material.  Beverly's discovery motions ranged well beyond the            scope of  Rule 16 and  were properly denied.   The prosecutor            complied  with  the  Jencks  Act, 18  U.S.C.     3500(a),  by            supplying  witness statements and  reports to Beverly  on the            morning of trial.                 4. We see no merit in Beverly's  contention that neither            the Attorney  General nor the Bureau of Prisons had statutory            authority  to take  custody  of  him  after  his  conviction.            Beverly  was convicted of five crimes, three committed before            November 1,  1987, and two committed after  that date.  As to            the first group, 18 U.S.C.   4082(a) authorized the  Attorney            General  to take  custody,  because  the  repeal  of  Section            4082(a) did not take  effect until November  1, 1987.  As  to            the  latter  group, 18  U.S.C.    3621(a)  --  which replaced            Section  4082(a)  and  applies  to  crimes  committed   after                                         -10-            November 1, 1987 -- authorized  the Bureau of Prisons to take            custody.                 Affirmed.                 ________                                         -11-
