USA v. Daniel Edward Turner

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 5, 2010
JOHN LEY
ACTING CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13181
Non-Argument Calendar
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D. C. Docket No. 08-00018-CR-RWS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL EDWARD TURNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 5, 2010)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Daniel Edward Turner appeals his convictions for tax fraud, pro se, pursuant

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to 26 U.S.C. § 7212(a) and 18 U.S.C. § 514(a)(2), arguing that the district court
had no jurisdiction over his case because his arrest warrant was constitutionally
invalid and that the district court violated his Sixth Amendment right to counsel of
his choice. After careful review, we affirm.
First, Turner claims that the district court did not have jurisdiction to hear
his case, because, even though it was issued pursuant to a grand jury indictment,
his arrest warrant was not support by an “oath or affirmation” as is required by the
Fourth Amendment. We are unpersuaded.
Under 18 U.S.C. § 3231, the federal district courts have subject matter
jurisdiction over all offenses against the laws of the United States. Alikhani v.
United States, 200 F.3d 732, 734-35 (11th Cir. 2000). Turner was plainly charged
by the grand jury with committing a criminal offense in violation of the federal tax
laws, thus the district court had jurisdiction to enter judgment on the merits of that
indictment. Further, the United States Supreme Court has clearly held that an
indictment by a federal grand jury alone satisfies the oath or affirmation
requirement of the Fourth Amendment. See McGrain v. Daugherty, 273 U.S. 135,
157 (1927) (“[G]rand jurors, acting under the sanction of their oath as such, may
find and return indictments based solely on their own knowledge of the particular
offenses, and [] warrants may be issued on such indictments without further oath or
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affirmation.”); see also Kalina v. Fletcher, 522 U.S. 118, 129 (1997) (“The Fourth
Amendment requires that arrest warrants be based upon probable cause, supported
by Oath or affirmation - a requirement that may be satisfied by an indictment
returned by a grand jury. . . .”) (citation and quotation marks omitted). It is
undisputed here that the arrest warrant for Turner was issued pursuant to a grand
jury indictment. Accordingly, it was supported by a sufficient “oath or
affirmation” for Fourth Amendment purposes.
Second, Turner argues that the district court improperly denied him his Sixth
Amendment right to counsel of his choice when it refused to appoint him substitute
counsel, and, instead, found that he made a knowing and voluntary waiver of his
right to counsel after he repeatedly rejected his appointed counsel without good
cause. Again, we are unpersuaded.
Under the Sixth Amendment, all criminal defendants are entitled to the
assistance of counsel from the time the adversarial criminal proceedings begin until
the completion of the first direct appeal. U.S. Cont. amend. VI; United States v.
Garey, 540 F.3d 1253,1262-63 (11th Cir. 2008) (en banc). However, “the right to
counsel is intended as a tool, not a tether,” and, accordingly, it may be waived
intentionally and knowingly by a criminal defendant. Garey, 540 F.3d at 1263. In
addition, the Sixth Amendment does not guarantee a criminal defendant the right to
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have a particular lawyer as his counsel, nor does it give him the right to demand
substitute appointed counsel without good cause, thus “[i]n practical terms . . . ,
defendants who lack the means to hire a private attorney must either accept the
counsel appointed to represent them or represent themselves.” Id. at 1263-64.
Accordingly,
it is possible for a valid waiver of counsel to occur not only when a
cooperative defendant affirmatively invokes his right to self-
representation, but also when an uncooperative defendant rejects the
only counsel to which he is constitutionally entitled, understanding his
only alternative is self-representation with its many attendant dangers.
Id. at 1265. Put differently,
[w]hen a defendant rejects his court-appointed counsel or otherwise
engages in behavior that creates tension between his right to counsel
and his right to self-representation, a district court does not
compromise the defendant’s free choice by presenting him with
accurate information regarding his lawful choices and asking him to
choose between them. And, when an indigent defendant rejects
competent, conflict-free counsel, he may waive his right to counsel by
his uncooperative conduct, so long as his decision is made with
knowledge of his options and the consequences of his choice.
Id. at 1265-66.
Turner made an intentional and knowing waiver of his right to counsel when
he rejected his competent, conflict-free counsel after the district court informed
him of the consequences of rejecting that counsel. Specifically, because he
maintained that the district court had no jurisdiction over his case, Turner
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repeatedly refused to accept the counsel appointed to him, yet denied that he was
seeking to represent himself. The district court strongly cautioned Turner against
refusing appointed counsel, stressed the seriousness of the charges against him and
the penalties he faced, and overall complexity of the case. The district court
explored Turner’s educational background, his general understanding of the legal
system, the rules of criminal procedure and evidence, and his specific
understanding of the charges against him. Satisfied that Turner understood the
nature of the proceedings and the charges against him, and understanding his
consistent objections to representation by appointed counsel, the district court
found Turner’s waiver of his right to counsel to be knowing and voluntary. The
district court nonetheless appointed the federal public defender previously assigned
to his case as standby counsel. Accordingly, Turner failed to demonstrate that the
district court violated his Sixth Amendment rights when it determined that, by his
conduct, he had opted for self-representation.
AFFIRMED.
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