United States of America, Plaintiff-appellee, v. Tommy A. Davis, Defendant-appellant (two Cases), 958 F.2d 47 (4th Cir. 1992)

Alleging that he was arraigned without counsel contrary to the requirements of the Sixth Amendment, Tommy A. Davis, a tax protestor, appeals his convictions on three misdemeanor counts of willful failure to file an income tax return in violation of 26 U.S.C. § 7203.¹  The United States contends that the court's failure to appoint counsel before Davis' arraignment was harmless error. We find Davis unjustifiably blocked inquiry into his financial ability to retain counsel and has, therefore, failed to demonstrate any error at all.

In July of 1988, Davis was charged in an information with three misdemeanor counts of willful failure to file an income tax return for the calendar years 1983, 1984, and 1985, in violation of 26 U.S.C. § 7203. Davis appeared initially before the United States Magistrate Judge on July 26, 1988, pursuant to a summons and was informed by the Magistrate Judge of the charges against him, his right to counsel, and his right to court appointed counsel in the event he was unable to afford counsel. Davis informed the Magistrate Judge that he was attempting to obtain counsel. The Magistrate Judge then set Davis' arraignment for August 4, 1988, and told Davis that he expected him to be there with counsel or if he was unable to retain counsel, he was to inform the court and "fill out the proper financial affidavit" so that counsel could be appointed before the arraignment.

Davis appeared at the arraignment without having retained counsel and without having made arrangements for the appointment of counsel. The Magistrate Judge entered a not guilty plea for Davis over Davis' objection to the entry of a plea without the presence of counsel. The Magistrate Judge then informed Davis that Davis would have to complete the requisite financial affidavit establishing that he was entitled to court appointed counsel.

Davis refused to complete a financial affidavit and filed a motion objecting to the Magistrate Judge having required him to supply "financial information for the appointment of counsel." The following day, Davis also filed a motion objecting to having been arraigned without counsel and a motion requesting that counsel be appointed. United States District Judge Elizabeth V. Hallanan directed that an in camera hearing be held to determine whether or not Davis was entitled to court appointed counsel. Notice of the hearing specifically informed Davis that the "evidence [would] be taken by the court on a confidential basis."

Despite repeated assurances by Judge Hallanan that Davis' answers would be sealed, Davis refused to reveal whether he had income in the preceding twelve months or whether he owned any real estate. Davis refused, in his words, "to waive [his] fifth amendment right to obtain a--sixth amendment right to counsel."²  Although Davis steadfastly blocked any meaningful inquiry into his financial ability to retain counsel, counsel was appointed at government expense.³ 

We assume without deciding that a federal arraignment is a "critical stage" in which a defendant is entitled to counsel absent a waiver. See Michigan v. Jackson, 475 U.S. 625, 629, 106 S. Ct. 1404, 1407, 89 L. Ed. 2d 631 (1986); Hamilton v. Alabama, 368 U.S. 52, 54 n. 4, 82 S. Ct. 157, 158, 7 L. Ed. 2d 114 (1961). To qualify for court appointed counsel, however, defendant bears the burden of proving that he lacks financial means to retain counsel. United States v. Sarsoun, 834 F.2d 1358, 1361 (7th Cir. 1987). Davis failed to meet this burden because he stubbornly refused to answer any meaningful questions concerning his claim of indigence. As this court has previously made clear, a defendant cannot block legitimate inquiry into his ability to afford counsel and then complain if counsel is not appointed.⁴  United States v. Kaufman, 452 F.2d 1202, 1202 (4th Cir. 1971) (per curiam), cert. denied, 405 U.S. 989, 92 S. Ct. 1252, 31 L. Ed. 2d 455 (1972); see United States v. Gallop, 838 F.2d 105, 108 (4th Cir.), cert. denied, 487 U.S. 1211, 108 S. Ct. 2858, 101 L. Ed. 2d 895 (1988). By blocking legitimate inquiry into his financial condition, a defendant impliedly waives his right to counsel. See Sarsoun, 834 F.2d at 1363. Although Judge Hallanan appointed counsel for Davis after a careful and patient in camera hearing, she was not compelled to do so as the evidence failed to establish that Davis lacked sufficient means to retain counsel. Having failed to establish, therefore, that he was ever entitled to court appointed counsel, Davis cannot complain that he was arraigned without counsel.

For the foregoing reasons, we find Davis has failed to demonstrate any error and, therefore, do not address the issue of harmless error. Consequently, the judgment of the district court is

AFFIRMED.