                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-7-2005

USA v. Kleinpaste
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2678




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                                                NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                                No. 03-2678


                     UNITED STATES OF AMERICA

                                          Appellee

                                     v.

                         KARL F. KLEINPASTE

                                          Appellant



               On Appeal from the United States District Court
                  for the Western District of Pennsylvania
                            (D.C. No. 02-cr-00065)
                  District Judge: Honorable Gary Lancaster



                            Argued: July 2, 2004

         Before: AMBRO, ALDISERT and STAPLETON, Circuit Judges

                            (Filed: March 7, 2005)

LISA B. FREELAND (Argued)
Federal Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
Attorney for Appellant

                                      1
LAURA S. IRWIN (Argued)
Assistant United States Attorney
700 Grant Street Suite 400
Pittsburgh, PA 15219
Attorney for Appellee United States of America



                                OPINION OF THE COURT


ALDISERT, Circuit Judge.

       Because we write only for the parties who are familiar with the facts and

proceedings below, our discussion will be limited.

                                              I.

       We conclude that Appellant Karl Kleinpaste did not sustain a violation of his

Sixth Amendment rights because he knowingly, voluntarily and intelligently waived his

right to counsel at his: arraignment; pretrial proceedings; bond revocation hearing; and

trial. Because the issue we will decide is “whether there was a knowing and intelligent

waiver, the legal conclusion as to whether the record so indicates is subject to plenary

review.” United States v. Peppers, 302 F.3d 120, 127 (3d Cir. 2002) (citations omitted).

The underlying facts are reviewable only for clear error. Id.

       The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the assistance of counsel for his defense.” The Sixth

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Amendment also guarantees the right of self-representation. Faretta v. California, 422

U.S. 806, 814 (1975). As such, the Constitution “embodies two competing rights because

exercising the right to self-representation necessarily means waiving the right to

counsel.” Buhl v. Cooksey, 233 F.3d 783, 789 (3d Cir. 2000).

      In Peppers, we noted this tension and explained the responsibility of the district

court to resolve it by: (1) determining whether the defendant is asserting his desire to

proceed pro se clearly and unequivocally; (2) conducting a thorough inquiry to satisfy

itself that the defendant understands “the nature of the charges, the range of possible

punishments, potential defenses, technical problems that the defendant may encounter,

and any other facts important to a general understanding of the risks involved;” and (3)

assuring itself that the defendant is competent to stand trial. 302 F.3d at 132 (citations

and quotations omitted). If, after consideration of these factors, a defendant nonetheless

insists on proceeding pro se, the court “must permit him to do so.” Id. at 133. In

satisfying this inquiry, the court need not follow a certain script. Iowa v. Tovar, 541 U.S.

77, 124 S. Ct 1379, 1387 (2004).

      A complete review of the arraignment colloquy, however, reveals that Kleinpaste

repeatedly and clearly: (1) asserted his right to self-representation, making this assertion

on at least five occasions; (2) waived his right to appointed counsel; and (3) reserved his

right to seek representation of his own choosing at some later point, if he so desired.

      The pre-trial the testimony before the court, reviewed in its entirety, reveals that



                                              3
both the court and Kleinpaste understood that he had clearly asserted his right to proceed

pro se at the arraignment, that his pro se status had not changed and that the pretrial

proceedings functioned as a fact-finding mission to determine whether Kleinpaste

intended to obtain counsel. The court discovered that although Kleinpaste was not

waiving his right to counsel, in the two full months that had passed since the arraignment

he had done little to retain counsel. Kleinpaste explained that he had not yet begun the

search for a lawyer as he had “been concentrating on other matters because [he had]

perceived other matters that need [sic] to be dealt with more importantly.” Indeed, he

filed twenty motions during this time period. Both his explanation and actions indicated

that Kleinpaste was continuing to appear pro se, see United States v. Stubbs, 281 F.3d

109, 117 (3d Cir. 2002), and although he intended to search for counsel, that search was

not a priority. Because Kleinpaste’s status did not change from the arraignment, in which

he asserted his right to appear pro se, no need existed for the court to take any step other

than to require Kleinpaste to move forward on his stated intention of retaining an

attorney. See Tovar, 124 S Ct. at 1387. Moreover, the court had statutory authority to

amend the conditions of release, see 18 U.S.C. § 3142 (c)(B)(3), and to impose “the least

restrictive further condition . . . that such judicial officer determines will reasonably

assure the appearance of the person as required,” 18 U.S.C. § 3142(c)(B).

      Kleinpaste argues that, at his bond revocation hearing, the court failed to adhere to

two of the considerations outlined in Peppers: (1) he never clearly and unequivocally



                                              4
requested the right to proceed pro se; and (2) the court did not conduct the necessary

“penetrating and comprehensive examination” required to ensure proper waiver.

Examination of the entire colloquy at this hearing, however, reveals that, in light of the

facts in this case, the court conducted a constitutionally firm inquiry. Kleinpaste

unequivocally told the court: “I, I believe I understand that, but I, I would rather go about

the matter myself and find it on my own.” Moreover, the court appointed standby

counsel to assist Kleinpaste at his discretion.

      He contends that, in the colloquy at trial, he did not clearly assert his right to

proceed pro se and thus the court failed to comply with the first consideration set forth in

Peppers. He then raises seven areas of alleged error with regard to the second condition

articulated in Peppers, that the court must assure itself that the defendant possesses a

complete understanding of the consequences. A review of the colloquy reveals no

violation of the Sixth Amendment. The court ensured that Kleinpaste: (1) understood the

purpose of the hearing; (2) was competent to conduct the colloquy; (3) knew that, to his

detriment, he did not possess the skills of an attorney to handle his own representation;

(4) understood the nature of the charges against him; (5) knew he would have to operate

in conformity with the Federal Rules of Evidence and Criminal Procedure; and (6) knew

the possible penalties if convicted. The court ascertained that Kleinpaste had been

reading and studying the law. See Government of Virgin Islands v. Charles, 72 F.3d 401,

406-410 (3d Cir. 1995). Although the court did not inquire explicitly at the trial colloquy



                                              5
whether Kleinpaste believed that counsel could adequately represent him or whether he

understood that proceeding pro se could impede his defense against the charges, neither

the Supreme Court nor this Court requires a script for waiver colloquies, and instead

rests the analysis on the particular facts of the case. Tovar, 124 S. Ct at 1387; United

States v.Thomas, 357 F.3d 357, 364 (3d Cir. 2004).

       Here, Kleinpaste had informed the court that he sought a lay-person to represent

him because he distrusted the judicial system, and hence the court had no need to inquire

as to why Kleinpaste rejected appointment of counsel. Moreover, notwithstanding

Kleinpaste’s resistance, the court continued the appointment of standby counsel. Further,

it is significant that the same magistrate judge conducted Kleinpaste’s arraignment and

bond revocation hearing and the same district judge conducted Kleinpaste’s pretrial and

trial colloquies, and presided at trial.

      We therefore conclude that Kleinpaste knowingly, voluntarily and intelligently

waived his right to counsel at his: arraignment; pretrial proceedings; bond revocation

hearing; and trial, and therefore he did not sustain a violation of his Sixth Amendment

right to counsel.

                                             II.

      The prosecutor’s cross-examination of Kleinpaste and closing argument did not

constitute prosecutorial misconduct. We review the issue of prosecutorial misconduct for

an abuse of discretion. United States v. Retos, 25 F.3d 1220, 1224 (3d Cir. 1994). When



                                             6
a defendant fails to object to remarks at trial, this court reviews for plain error. United

States v. Irizarry, 341 F.3d 273, 306 (3d Cir. 2003)

      Kleinpaste acknowledged during his opening statement that the only issue before

the jury was whether he had a good faith belief that he was not required to pay taxes, as

set forth in Cheek v. United States, 498 U.S. 192 (1991). In Cheek, the Court explained

that “a defendant’s claim . . . that because of a misunderstanding of the law, he had a

good-faith belief that he was not violating any of the provisions of the tax laws” is a

valid defense to a charge of violating the tax laws because, if believed by the jury, it

vitiates the willfulness element. 498 U.S. at 202. Kleinpaste argues that the cross-

examination of him “improperly undermin[ed]” his “good faith defense” and that the

prosecutor’s actions amounted to misconduct so severe as to warrant reversal of his

conviction. We disagree.

      Here, the prosecutor asked Kleinpaste 330 questions on cross-examination, of

which Kleinpaste selects eleven as evidence of the prosecutor’s hostility. Kleinpaste did

not object to any of these eleven questions and, therefore, this Court reviews them only

for plain error. Under this standard, Kleinpaste must demonstrate that the alleged

“prosecutorial misconduct [resulted in] an egregious error or manifest miscarriage of

justice.” Id. (quotation omitted). A conviction must be affirmed if “it is highly probable

that the error did not contribute to the judgment.” Government of the Virgin Islands v.

Toto, 529 F.2d 278, 284 (3d Cir. 1976). This requires the court to possess “a sure



                                              7
conviction that the error did not prejudice the defendant.” United States v. Zehrbach, 47

F.3d 1252, 1265 (3d Cir. 1995) (en banc) (citation and internal quotation omitted).

      We have considered all the specified instances and conclude that only one merits

discussion. Kleinpaste contends that the prosecutor “misrepresented” the law when he

read an excerpt from the dissenting opinion in Cheek when cross-examining him. Prior

to reading from Cheek, Kleinpaste acknowledged that he had cited Cheek in his own

briefs and had come across it in his research “years ago.” The prosecutor then asked:

       Question:    I’m reading from the bottom of Page 209 to the top of the
                    next page; you tell me if I’m reading correctly
                    “That being so, it is incomprehensible to me how in this day,
                    more than seventy years after the institution of our present
                    Federal income tax system, with the passage of Income Tax
                    Act 1913, 38 Stat 166, any taxpayer of competent mentality
                    can assert as his defense to charges of statutory wilfulness the
                    proposition that the wage he received from his income was
                    not income, irrespective of a consult that says otherwise and
                    advises the gullible to resist income tax collections.”

Kleinpaste then admitted that he previously had read Cheek.

       Although it was ill-advised that the prosecutor chose to read an excerpt from the

dissent, neither the question nor the passage suggests that the prosecutor read the “law of

the land” as Kleinpaste contends. The government maintains that the question was aimed

at informing the jury that, in a Supreme Court case that Kleinpaste had discovered early

on, at least one Justice expressed the sentiment that only the gullible could fall for

theories of non-tax liability. Nonetheless, any possibility of misunderstanding on the

jury’s part was cleared up by Kleinpaste on redirect examination:

                                              8
       Q:    [o]n the citation to Cheek versus the United States, in which it was
             observed – a question about how any taxpayer of competent
             mentality can assert a certain defense, is that the holding in the case?
       A:    No, it is not; it was the dissent.

Again during his closing argument, Kleinpaste reminded the jury that the portion of

Cheek read by the prosecutor was not the holding of the case. We therefore conclude that

no reversible error took place in the prosecutor’s questioning about Cheek.

                                             III.

      The court properly limited lay witness testimony on perceptions of Kleinpaste’s

sincerity in his beliefs of tax code requirements and properly instructed the jury on

assessment of character evidence. Unpreserved error is reviewed only for plain error.

United States v. Gordon, 290 F.3d 539, 542-543 (3d Cir. 2002).

      Rule 701 of the Federal Rules of Evidence provides that lay opinion is admissible

so long as it is “(a) rationally based on the perception of the witness, and (b) helpful to a

clear understanding of the witness’s testimony or the determination of a fact in issue.”

See United States v. Polishan, 336 F.3d 234, 242 (3d Cir. 2003). Here, the opinions of

lay witnesses on how sincerely Kleinpaste held his views would not have aided the jury

or clarified an issue that the jury otherwise would not have been competent to

understand. See United States v. Hauert, 40 F.3d 197, 200 (7th Cir. 1994). The jury

could understand, and assess, Kleinpaste’s testimony on this central issue. For this

reason, the court properly excluded lay opinion testimony as irrelevant. How an

individual witness may have gauged the depth of Kleinpaste’s conviction has no bearing

                                              9
on the ultimate issue before the jury: whether it found that Kleinpaste’s beliefs satisfied

the good faith requirement set forth in Cheek. The court therefore was well within its

discretion in refusing to allow the testimony. See Ansell v. Green Acres Contracting Co.,

347 F.3d 515, 525 (3d Cir. 2003).

      Kleinpaste contends that the court erred when it failed to instruct the jury that

evidence of “his good character alone could raise a doubt about his guilt.” Kleinpaste

recognizes that his lack of request for a contemporaneous objection to the instructions

necessitates that this court review only for plain error. See Gordon, 290 F.3d at 542-543.

In United States v. Spangler, 838 F.2d 85 (3d Cir. 1988), this court held that “so long as

an instruction . . . is given, which calls the jury’s attention to its duty to take character

evidence into account with all of the other evidence in deciding whether the government

has proved its charge beyond a reasonable doubt, the omission of the express ‘standing

alone’ language . . . is not an abuse of the discretion vested in the trial court to choose

the wording of the character evidence charge.” Id. at 87. As a matter of law, Kleinpaste

was not entitled to any express language in the instruction, and this court must consider

the instructions in their entirety to determine their adequacy. Id.

      Here, the court informed the jury more than once to consider all of the evidence.

The court required the jurors to fulfill their duty as “sole judges of the credibility of the

witnesses and the weight their testimony serves” and instructed the jury to consider the

“character of the testimony given.” Based on the entirety of the evidence before the jury,



                                               10
no plain error occurred.


                                            IV.


      Appellant challenges his sentence under United States v. Booker, 543 U.S. - -, 125

S. Ct. 738 (2005). Having determined that the sentencing issues appellant raises are best

determined by the district court in the first instance, we will vacate the sentence and

remand for re-sentencing in accordance with Booker.

      We will affirm the judgment of conviction, vacate the sentence and remand to the

district court for re-sentencing.




UNITED STATES OF AMERICA V. KARL F. KLEINPASTE – NO. 03-2678

STAPLETON, Circuit Judge, dissenting:

      I would reverse the judgment of the District Court and remand for a new trial for

two reasons. First, under the teachings of United States v. Stubbs, 281 F.3d 109 (3d Cir.

2002), appellant’s waiver of counsel was not knowingly and intelligently made. Second,

it was prejudicial error to permit the government to read to the jury from Justice

Blackmun’s dissenting opinion in Cheeks v. United States, 498 U.S. 192 (1991).




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