Unpublished Disposition, 907 F.2d 155 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1990)

No. 88-1276.

United States Court of Appeals, Ninth Circuit.

Before CHOY and FLETCHER, Circuit Judges, and JAMES M. FITZGERALD,*  District Judge.

MEMORANDUM** 

Frank W. Leonesio appeals his conviction on four counts of failure to file income tax returns, 26 U.S.C. § 7203, and one count of failure to appear before a court, 18 U.S.C. § 3146. We have jurisdiction to hear Leonesio's appeal under 28 U.S.C. § 1291. This court reviews de novo questions of law. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

Leonesio attended his trial dressed in a brown jumpsuit, which apparently was issued to him by the Oakland city jail. Leonesio contends that he was denied the constitutional presumption of innocence by being compelled to wear jail clothing during trial.

An accused may not be compelled to be tried before a jury in identifiable prison clothes, United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir. 1985) (citing Estelle v. Williams, 425 U.S. 501, 512 (1976)). In order to prevail on a claim that one's trial was rendered unfair by such an appearance, the defendant:

must establish that the appearance in jail clothing was involuntary, Bentley v. Crist, 469 F.2d 854, 856 (9th Cir. 1972); that a juror would recognize the clothing as issued by a jail, United States v. Rogers, 769 F.2d 1418, 1422 (9th Cir. 1985); and that the error was not harmless.

Jeffers v. Ricketts, 832 F.2d 476, 481 (9th Cir. 1987), cert. granted, 110 S. Ct. 232 (1989). A trial judge has no duty to inquire sua sponte whether a defendant would prefer not to be tried in identifiable prison garb, Rogers, 769 F.2d at 1421, and "the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation." Estelle, 425 U.S. at 512-13.

Leonesio's claim fails because he cannot establish that his appearance in the jumpsuit was involuntary. Leonesio made no objection to wearing the jumpsuit, he merely stated to the jury that the Marshal's office had failed to deliver his court clothes.1  There is nothing in the record indicating that Leonesio ever requested of the district judge, the Marshal's Service, or the jailers that he be given his civilian clothes for trial. Rather, it appears Leonesio wore the jumpsuit as part of his defense strategy. During the trial he referred to himself as a "political prisoner," claimed that he had twice been "kidnapped without proper warrant," claimed that the trial judge had issued a ruling that prevented him from defending himself and calling witnesses, and rhetorically asked the court whether he was a "free man or a slave." In any event, Leonesio's failure to object to wearing the jumpsuit "is sufficient to negate the presence of compulsion necessary to establish a constitutional violation," Estelle, 425 U.S. at 512-13, and his claim must fail for this reason.

Leonesio's claim of constitutional violation also fails because he cannot establish that "a juror would recognize the clothing as issued by a jail." Jeffers, 832 F.2d at 481. Leonesio concedes that "there were no markings on the brown jump suit indicating such was prison attire...." Appellant's Opening Brief at 8. This court has held that a defendant seeking to reverse a conviction on the ground that "he was compelled to stand trial in prison garments must demonstrate from the trial record that a juror would recognize the clothing as having been issued by prison authorities." Rogers, 769 F.2d at 1422 (emphasis added); see also Jeffers, 832 F.2d at 481 (defendant did not meet burden where clothing was not readily identifiable); United States v. Forrest, 623 F.2d 1107, 1115 (5th Cir.), cert. denied, 449 U.S. 924 (1980) (presumption of innocence not impaired where defendant appeared before jury venire dressed in plain khaki prison clothes bearing black stenciled laundry numbers on back of trousers); Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972) (conviction reversed where defendant compelled to wear distinctive gray coveralls imprinted with the words "Missoula County Jail" or "Missoula County Sheriff"). Absent a proper objection, the trial judge does not have a duty "to make a record to negate a defendant's unsupported claim that his prison clothes were identifiable as such." Rogers, 769 F.2d at 1422. With the exception of Leonesio's own trial statements that suggest he was not wearing his "normal" clothes, there is nothing in the record to establish that a juror would recognize the clothing as issued by a jail.2  We therefore reject Leonesio's claim that his trial was rendered constitutionally infirm by reason of his appearance in the brown jumpsuit.

Appellant also contends that the court "effectively prevent [ed] Leonesio from marshalling an effective defense" by failing to advise him "of his right to law library access as a pro per inmate." Appellant's Opening Brief at 12. This contention is meritless to the extent it alleges a violation of Leonesio's Fifth Amendment right to meaningful access to the courts. " [T]he offer of court-appointed counsel satisfies the government's Fifth Amendment obligation to provide meaningful access to the courts...." Taylor v. List, 880 F.2d 1040, 1047 (9th Cir. 1989) (citing United States v. Wilson, 690 F.2d 1267, 1272 (9th Cir. 1982), cert. denied, 464 U.S. 867 (1983)). Leonesio concedes that he chose to represent himself despite the fact that "the court strongly advised that [he] accept [appointed] counsel." Appellant's Opening Brief at 11. Leonesio was not denied meaningful access to the courts.

Leonesio's argument fares no better to the extent it alleges a violation of his Sixth Amendment right to self-representation. In Faretta v. California, the Supreme Court held that an accused has a Sixth Amendment right to reject court appointed counsel and conduct his own defense. 422 U.S. 806, 834-36 (1975). We have held "that the Sixth Amendment right to self-representation recognized in Faretta includes a right of access to law books, witnesses, and other tools necessary to prepare a defense." Taylor, 880 F.2d at 1047 (construing Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985)).

Although this court has recognized a right to legal materials attendant to the Sixth Amendment right to self-representation, we have not held that the trial judge has an affirmative duty to sua sponte advise pro se inmates of this right. Rather, this court has found that Sixth Amendment violations may occur when the state unreasonably hinders a defendant's efforts to prepare his own defense. Milton, 767 F.2d at 1446-47. Leonesio failed to request access to legal materials other than his own3 , and the government in no way attempted to hinder his access to any legal materials. The record does suggest, however, that Leonesio was able to obtain certain materials that he was interested in. We conclude there was no violation of appellant's Sixth Amendment right to self-representation.

Leonesio makes several challenges to the procedures leading to his prosecution. His major contention seems to be that the information filed against him was "fatally flawed" because it was not supported by an oath or affidavit "stating that there [was] probable cause to believe an offense ha [d] been committed...." Appellant's Opening Brief at 13. He further argues that since the summons for his initial appearance in court and the subsequent warrant for his arrest were issued without a showing of probable cause, he had no duty to appear in court. Id. at 35. From this Leonesio concludes that the second warrant for his arrest and the superseding information were void and his convictions must be reversed. Id. at 35-36. Leonesio also suggests that he was denied due process because he did not receive a probable cause hearing. Id. at 17.

All of Leonesio's contentions lack merit. As we have previously observed, " [t]he Supreme Court has repeatedly held that an illegal arrest or detention does not void a subsequent conviction." United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986) (citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975); Frisbie v. Collins, 342 U.S. 519, 522 (1952)). "Moreover, a prior judicial determination of probable cause is not a prerequisite to prosecution [sic] by information." Studley, 783 F.2d at 937 (citing Gerstein, 420 U.S. at 119). In any event, a probable cause statement was filed after Leonesio was arrested on the second warrant. On May 2, 1988, Magistrate Wilkin reviewed the statement in open court and found that it established probable cause, "both on the underlying count [sic] and on the failure to appear." Transcript of Proceedings, May 2, 1988, at 23, Attachment 2 to Brief of Appellee. The superseding information on which Leonesio was brought to trial was subsequently filed on May 24, 1988. Thus probable cause was in fact established before Leonesio was brought to trial.

As for Leonesio's suggestion that he was "deprived of the right to a probable cause hearing," Appellant's Opening Brief at 17, this is simply not true. At his arraignment on May 2, 1988, Magistrate Wilkin agreed with Leonesio's argument that he could not be held without a sworn affidavit establishing probable cause. The government then produced a sworn statement, which the Magistrate found sufficient to establish probable cause. Nevertheless, even if Leonesio were denied a probable cause hearing, such denial would not be ground for reversal. See United States v. Bohrer, 807 F.2d 159, 161 (10th Cir. 1986); United States v. Millican, 600 F.2d 273, 275 (5th Cir. 1979), cert. denied, 445 U.S. 915 (1980).

Leonesio also contends that the failure of the I.R.S. to comply with the Paperwork Reduction Act (PRA) barred his prosecution on all counts. Leonesio, however, failed to raise this argument at or before trial, and therefore it is waived. See United States v. Smith, 866 F.2d 1092, 1096, 1098 (9th Cir. 1989) (PRA defense is a permissive pretrial matter, which is timely if asserted at or before trial); cf. Navel Orange Admin. Comm. v. Exeter Orange Co., 722 F.2d 449, 453-54 (9th Cir. 1983) (defendant in an enforcement action cannot raise affirmative defenses that have not first been finally determined in an administrative proceeding).

We conclude that the judgment of the district court, including the imposition of the special assessments, see United States v. Munoz-Flores, 58 U.S.L.W. 4563 (U.S. May 21, 1990), is AFFIRMED.

 *

Honorable James M. Fitzgerald, Senior United States District Judge for the District of Alaska, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Leonesio obliquely referred to his attire during his opening statement:

The Defendant: Ladies and Gentlemen of the jury, excuse my appearance. This is not my normal attire, but the Federal Marshal's Department failed to bring me my court clothes. Nonetheless, I'd like to explain to you the basis for my allegedly representing myself, and the fact that I am not participating in this trial.

Record Excerpts at 53-54.

 2

The declarations attached as Addenda I and II to Appellant's Opening Brief are not part of the trial record

 3

Although not relied upon by Leonesio to support his claim, on May 2, 1988, Leonesio asked Magistrate Wilkin that he be allowed access to his legal papers. The Deputy Marshal stated he had already informed Leonesio that he could have his papers. Magistrate Wilkin assured Leonesio that the Deputy Marshals would have the jailers give him his paperwork. See Transcript of Proceedings, May 2, 1988, at 21-22, Attachment 2 to Brief of Appellee. Leonesio makes no contention that he was thereafter denied access to his legal papers