924 F.

2d 975
31 Fed. R. Evid. Serv. 1263

UNITED STATES of America, Plaintiff-Appellee,

v.
Robert S. TREFF, Defendant-Appellant.
No. 89-4126.

United States Court of Appeals,

Tenth Circuit.
Jan. 29, 1991.

Glen R. Dawson, Asst. U.S. Atty. (Dee Benson, U.S. Atty., and Richard
N.W. Lambert, Asst. U.S. Atty., with him on the brief), Salt Lake City,
Utah, for plaintiff-appellee.
Mark D. Eibert, Asst. Federal Public Defender (Michael G. Katz, Federal
Public Defender, with him on the brief), Denver, Colo., for defendantappellant.
Before McKAY, SEYMOUR, and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.

In a four-count indictment Robert S. Treff was charged as follows: In Count I

he was charged with an attempt to kill Carol M. Fay, an employee of the
Internal Revenue Service, on account of her performance of her official duties,
in violation of 18 U.S.C. Sec. 1114; in Count II Treff was charged with assault
and intimidation of Carol M. Fay, a District Director of the Internal Revenue
Service, a person designated in 18 U.S.C. Sec. 1114, on account of her
performance of her official duties, and in the commission of such act used a
deadly weapon, namely an incendiary device commonly known as a "Molotov
cocktail," in violation of 18 U.S.C. Sec. 111; in Count III Treff was charged
with using a "Molotov cocktail" during a crime of violence, to wit, assaulting,
intimidating and attempting to kill Carol Fay, in violation of 18 U.S.C. Sec.
924(c)(1); and in Count IV he was charged with possessing a "Molotov
cocktail" which was not registered to him in the National Firearms Registration
and Transfer Record, in violation of 26 U.S.C. Sec. 5861(d). A jury convicted

Treff on all four counts.1

2

Treff was sentenced as follows: On Count I Treff was sentenced to fifteen years
imprisonment; on Counts II and IV he was sentenced to five years
imprisonment on each count to run concurrently with each other but
consecutively to the term of imprisonment imposed on Count I; and on Count
III Treff was sentenced to five years imprisonment to run consecutively to the
sentences imposed on Counts I, II, and IV. The foregoing 25-year total federal
sentences were ordered to commence upon completion of a 20-year state
manslaughter sentence Treff was then serving which was previously imposed
by a state court in Utah. Treff now appeals the federal convictions.

At trial, defense counsel conducted very limited cross-examination of the

government's witnesses. He did not call any defense witnesses, and Treff
himself did not testify. Such is mentioned at this point to show that all of the
evidence at trial was presented by the government. A detailed statement of the
government's evidence is not necessary. Suffice it to say that Robert Treff
(Treff), his wife Jennifer, and Carol Fay all worked in the Salt Lake City office
of the Internal Revenue Service. Treff was employed as a tax examiner from
January 7, 1982 until October 1, 1985, when he quit. Fay was Treff's
supervisor. Treff was passed over for several promotions and he blamed Fay
for his failure to be promoted. At the same time, Treff was having domestic
problems.

The government's evidence showed that on December 25, 1986 at about 9:00
p.m. Treff shot and killed his wife at their home in Orem, Utah.2 This was
about a year after both parties had filed for divorce and at a time when the two
were in a bitter child custody dispute. After the shooting, Treff took his two
children to a motel in Midvale, Utah. He then drove approximately fifteen miles
to Carol Fay's home in Salt Lake City, Utah, where he threw two "Molotov
cocktails" on the roof of Fay's residence.3

On appeal, Treff raises five issues: (1) that the district court erred in denying
Treff his constitutional and statutory right to represent himself at trial; (2) that
Treff did not receive effective assistance of counsel; (3) that the district court
erred in admitting evidence that shortly before Fay's house was fire-bombed
Treff had killed his wife; (4) that the district court erred in admitting evidence
of a diary entry by Mrs. Treff that Treff had said that he wanted to kill Fay; and
(5) that the evidence is insufficient to support the convictions on Counts I and
II.

I. Treff's Right to Self-Representation

Treff first argues that he was denied his right to represent himself at trial. In
this regard, all agree that a defendant in a criminal proceeding has a
constitutional and statutory right to represent himself. See Faretta v. California,
422 U.S. 806, 814, 819-20, 95 S.Ct. 2525, 2530, 2533-34, 45 L.Ed.2d 562
(1975).4 However, the waiver by a defendant of his right to counsel in a
criminal proceeding must be "intelligent and knowing" and "made with his eyes
open." United States v. Dinneen, 463 F.2d 1036, 1040 (10th Cir.1972). A
defendant's waiver of his right to representation and his concomitant election to
represent himself must be "clearly and unequivocally" asserted. United States v.
Bennett, 539 F.2d 45, 50 (10th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327,
50 L.Ed.2d 293 (1976). The reason that a defendant must make an
"unequivocal" demand for self-representation is that otherwise "convicted
criminals would be given a ready tool with which to upset adverse verdicts after
trials at which they had been represented by counsel." Meeks v. Craven, 482
F.2d 465, 467 (9th Cir.1973), cited with approval by this court in United States
v. Bennett, at 51.

It follows that if a defendant in a criminal proceeding makes an equivocal

demand on the question of self-representation, he has a potential ground for
appellate reversal no matter how the district court rules. If the district court
denies defendant's equivocal demand to represent himself, the defendant, on
appeal, will argue that his constitutional right to self-representation has been
denied. And if the district court grants defendant's demand for selfrepresentation, the defendant, on appeal, will argue that his waiver of his right
to counsel was not intelligent, knowing and unequivocal. All of which is a form
of the "cat and mouse" game mentioned in United States v. Padilla, 819 F.2d
952, 959 (10th Cir.1987) and in United States v. Gipson, 693 F.2d 109, 112
(10th Cir.1982), cert. denied, 459 U.S. 1216, 103 S.Ct. 1218, 75 L.Ed.2d 455
(1983).

As indicated, counsel are in substantial agreement as to what the law is on this

matter, but they disagree as to the application of the law to the chronology of
events leading up to trial. After the return of the indictment, the district court
appointed counsel to represent Treff. The latter became dissatisfied with his
appointed counsel, and the district court then appointed different counsel to
represent Treff. Treff was not satisfied with the newly appointed counsel, and it
would appear that at this juncture the district court was going to allow Treff to
represent himself with appointed counsel serving in a "standby" capacity. Then
there was a change in events. Treff's parents retained new counsel, a Mr.
Bennett, who entered a general appearance for Treff, and indicated to the court
that he would be prepared to try the case on the date scheduled. Appointed
counsel was then allowed to withdraw. Our study of the record indicates that

after Mr. Bennett's entry of appearance there was not any clear and
unequivocal, intelligent and knowing, waiver by Treff of his right to counsel
and the exercise of his concomitant right to self-representation.5 We find no
error when at the commencement of trial the district court ruled that Treff
could not cross-examine the government's witnesses.6 Indeed, it is a bit
surprising that the district court allowed Treff to make an opening statement to
the jury, which opening statement was eventually cut short when Treff accused
the judge of being biased.
II. Ineffective Assistance of Counsel
9

As indicated, Treff's initial position is that he was denied his right to selfrepresentation, and that he did not want to be represented by Mr. Bennett, but
merely retained him as standby counsel. He then argues that Mr. Bennett's
representation of him was constitutionally inadequate. Under Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) there is a
two-part test for determining whether a defense attorney's performance was so
deficient that it violates the defendant's right to effective assistance of counsel.
First, the defendant must show that his counsel's performance "fell below an
objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. Second, he
must also show "that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Id. at 694, 104 S.Ct. at 2068; acc'd Hopkinson v. Shillinger, 866
F.2d 1185, 1204-05 (10th Cir.1989).

10

There is no disagreement as to the law on this particular matter, but counsel

take a different view of the facts and what those facts tend to establish. Mr.
Bennett was retained by Treff's parents to represent Treff at trial. Mr. Bennett
immediately moved for a continuance of the trial which was about three weeks
off. The motion was denied. When the matter came to trial, Mr. Bennett again
moved for a continuance, which motion was also denied. The district judge
conducted the voir dire of the jury panel. Mr. Bennett, after conferring with
Treff, exercised all his challenges to individual members of the voir dire.

11

It is true that Bennett's cross-examination of government witnesses was limited,

if not nonexistent. In this regard, Bennett advised the district court, in the
presence of the jury, that it was the desire of Treff that defense counsel not
cross-examine any government witness or call any defense witnesses. The
alleged omissions by defense counsel were based on direct instructions from
the defendant and were part of the defendant's trial strategy. Bennett did,
however, participate in certain proceedings outside the presence of the jury,

where Treff himself testified. Treff was allowed to make the opening statement
to the jury, at which time Treff stated that he was making the opening statement
because he knew more about the case than Bennett. Bennett, however, made
the closing statement to the jury.
12

In determining whether Bennett's performance "fell below an objective

standard of reasonableness," all the facts and circumstances must be taken into
consideration. One such consideration is the fact that Treff forbade Bennett
from cross-examining government witnesses and from calling any defense
witnesses. We have not been advised as to just whom Treff would have liked to
call as a defense witness. And for all we know, if Treff should get a new trial,
he might not call any witnesses at the retrial.7

13

In addition, appellate counsel has not pointed out any "prejudice" resulting to
Treff as a result of Bennett's representation. As will be explored in Section V of
this opinion, evidence that Treff fire-bombed Fay's home is very convincing.
Although no one saw Treff throw the firebomb and he never confessed such,
the circumstantial evidence that he was the person who threw the fire bombs is
overwhelming. It is very doubtful that cross-examination of government
witnesses would have shaken the government's case.8 And, as indicated, we had
not been advised as to possible defense witnesses who could have weakened the
government's case.

14

Under all the circumstances, Bennett acted reasonably and we perceive no

resulting prejudice.

III. Admission of Other Crime Evidence

15

As mentioned above, at about 9:00 p.m. on December 25, 1986, Treff shot his
wife four times, killing her instantly. Three spent shell casings were found at
the scene of the homicide. Afterwards, Treff took his children to a motel and
left them there for the evening. Treff then left the motel.

16

At about 11:25 p.m. on December 25, 1986, someone fire-bombed Carol Fay's
home in Salt Lake City, Utah, with a Molotov cocktail. At 12:15 a.m. a second
Molotov cocktail was thrown onto the Fay residence. Although neighbors who
had been aroused were unable to identify Treff as the person who fire-bombed
the Fay home, they did testify that the perpetrator was a "big" man and
described the clothes he was wearing and the automobile in which he drove
from the scene. Treff, incidentally, is 6'3" in height and weighs around 260
pounds. Furthermore, Treff owned a car and jacket similar to those seen by

witnesses on the night of the fire-bombing.

17

Found at the scene of the fire-bombing was the fourth spent shell casing fired
from the weapon which Treff used to kill his wife. Treff was arrested on
December 26, 1986, and a search of his car disclosed a 9mm handgun which,
according to expert testimony, was used to kill Mrs. Treff and which also fired
the bullet from the shell casing which was later found outside Fay's home. Also
found in Treff's automobile were some live 9mm shells, some terry cloth
material similar to the Molotov cocktail wicks, and some rubber gloves. The
terry cloth and the gloves had gasoline on them.

18

The district court admitted, over objection, evidence that Treff had killed his
wife. At trial, although still standing on the prior objection, counsel stipulated
that Treff killed his wife on December 25, 1986, at 9:00 p.m. Accordingly, no
witness testified to the details of the killing. On appeal, Treff argues that it was
reversible error to admit evidence that he killed his wife and that such
admission contravened Fed.R.Evid. 404(b).
Rule 404(b) reads as follows:

19
Evidence
of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
20

The government argues that evidence of Treff's killing of his wife does not
come within the ambit of Rule 404(b), and alternatively, that such evidence was
not offered to prove that his fire-bombing of the Fay residence was in
conformity with the killing of his wife, but was offered to show that Treff was
the person who threw the fire bombs, and to prove his intent, motive and
preparation or plan.

21

United States v. Record, 873 F.2d 1363, 1372 n. 5 (10th Cir.1989) recognizes
that Rule 404(b) applies only to evidence of other acts extrinsic to the crime
charged. In this regard, see also United States v. Orr, 864 F.2d 1505, 1510
(10th Cir.1988). In Record we also cited with approval United States v.
Richardson, 764 F.2d 1514, 1521-22 (11th Cir.), cert. denied, 474 U.S. 952,
106 S.Ct. 320, 88 L.Ed.2d 303 (1985) where the Eleventh Circuit held that
Rule 404(b) does not apply to other acts which are so "inextricably intertwined"
with the crime charged that testimony concerning the charged act "would have
been confusing and incomplete without mention of the prior act."

22

We think that it is a close question as to whether the act of killing Mrs. Treff
was extrinsic to the fire-bombing of Fay's home. Mrs. Treff was killed at 9:00
p.m. on December 25, 1986, in her home in Orem, Utah. Treff then took his
children and placed them in a motel in Midvale and proceeded on some fifteen
miles to Fay's residence in Salt Lake City, Utah, where at 11:15 p.m. he threw a
Molotov cocktail onto the roof of her house. That it was Treff who threw the
fire bomb is established by the fact that a shell casing was found at Fay's
residence which came from the same gun Treff used earlier to kill his wife. All
of which also suggests that Treff had this gun available for use should Fay have
exited the house. Although we prefer to turn this case on the basis that Rule
404(b) has application, a good argument can be made that the act of killing
Mrs. Treff was so "inextricably intertwined" with the fire-bombing of Fay's
house that to exclude evidence of the former in the trial of the latter would have
been "confusing and incomplete."9

23

For an update of cases bearing on Rule 404(b), see United States v. Record, 873
F.2d 1363 (10th Cir.1989). We hold that in the instant case the evidence, in the
form of a stipulation that Treff killed his wife, was admissible under Rule
404(b) in Treff's trial for fire-bombing Fay's home because it tended to show
that Treff was the one who threw the fire bombs and also tended to show his
intent, motive and preparation or plan. It should be remembered that no witness
identified Treff as the thrower of the fire bombs, and that he never confessed to
such. Accordingly, the government had to prove by circumstantial evidence that
Treff was the one who threw the fire bombs. This was established, rather
convincingly, by showing that Treff killed his wife by firing four shots into her
body, that three shell casings were found at the scene of the killing, and that the
fourth casing was found in the vicinity of the automobile used by the person
who threw the fire bombs at Fay's home. Counsel suggests that this could have
been done in a different and less prejudicial manner. This does not appear to
have been raised in the trial court. In any event, whether this evidence could
have been presented in a less prejudicial manner is not determinative. The issue
is whether the requirements of Rule 404(b) have been met. We think they have.

IV. Admission of Diary Entry

24

At about the same time Treff was having problems with Fay at the IRS office
in Salt Lake City he was also having domestic problems at home. He and his
wife each filed for divorce in January, 1986, but they had been having domestic
problems for some time prior thereto. On advice of her counsel, Mrs. Treff was
keeping a diary of her husband's conduct. The day after her death, investigators
found in Mrs. Treff's house her diary with an entry dated January 4, 1986,
which read as follows:

25
Robert
slept downstairs--still angry and upset mood. Finally asked if state would pay
medical bills if he committed himself because he wanted to kill self and Fay.
26

The diary entry was identified by Mrs. Treff's sister as being in Mrs. Treff's
handwriting.

27

In a hearing held during the trial, the district court, after hearing testimony and
argument of counsel, ruled that the government could introduce the diary entry
into evidence. At that hearing, incidentally, Mr. Treff testified that he had never
made that statement to his wife, and that any statements he had made were
confidential marital communications. The district court refused to find that the
statement attributed to Mr. Treff in Mrs. Treff's diary entry was a confidential
marital communication because of the nature of the relationship between Mr.
and Mrs. Treff at the time of the alleged statement.10 We are not inclined to
disturb this holding. The Treffs had been separated since October, 1985. Treff
had been dating other women and indeed had made a proposal of marriage and
became engaged to one. The fact that Treff "slept downstairs" once didn't alter
their estrangement. And by the end of January, 1986, both had filed for divorce.
Without going into further detail concerning their marital breakup, we agree
with the district court that this diary entry was not the result of a confidential
marital communication.11

28

The district court also ruled that the use of the diary entry did not violate the
hearsay rule. The statement attributed to Mr. Treff was an admission and,
therefore, not hearsay under Rule 801(d)(2). The entry itself was admissible
under the residual provision of either Rule 803(24) or Rule 804(b)(5). We agree
with the district court that the diary entry had "circumstantial guarantees of
trustworthiness."

29

We reject the further suggestion that the prosecutor did not give Treff sufficient
notice of his intent to use the diary entry at trial. Defense counsel had the diary
entry for at least a year prior to trial, and about five days before trial defense
counsel was given notice that the government would offer the diary entry at
trial. There is little doubt that the entry was made by Mrs. Treff. There is no
suggestion as to just how the defense was in any way prejudiced by any delay
in notifying counsel of the government's intent to introduce the diary entry into
evidence.

V. Sufficiency of Evidence
30

Counsel argues that there is insufficient evidence to support Treff's convictions

on Counts I and II. As to Count I, counsel asserts that there is insufficient

evidence to show that Treff had an intent kill Fay, if indeed he was the party
who threw the Molotov cocktails. As to Count II, counsel states that there was
insufficient evidence to show that Treff had an intent to assault and forcibly
intimidate Fay. We do not agree.
31

Assuming that Treff was the bomb thrower, an assumption supported by

overwhelming evidence, the direct and circumstantial evidence of Treff's intent
is sufficient to support the convictions on both counts. The Molotov cocktail, a
makeshift incendiary bomb made with a breakable bottle full of a flammable
liquid and equipped with a rag wick, is itself a deadly weapon.12 Further, Treff
had made numerous threats against Fay's life. Mrs. Treff's diary entry, although
quite probative of Treff's intent, was certainly not the only evidence of threats.
In addition, the fact that the fourth shell casing was found on Fay's premises
permits the inference that Treff had his 9 mm handgun with him at the time of
the fire-bombing. The fact that the fire bombs fortunately did relatively little
damage does not detract from Treff's intent.

32

At this stage of the proceedings where there is a challenge to the sufficiency of

the evidence, the evidence, both direct and circumstantial, together with the
reasonable inferences to be drawn therefrom, is sufficient if, when taken in a
light most favorable to the government, a reasonable juror could find the
defendant guilty beyond a reasonable doubt of the crimes charged. United
States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.), cert. denied, 475 U.S. 1128,
106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). The evidence of intent is sufficient to
support the convictions on Counts I and II.

33

Judgment affirmed.

There was considerable delay in getting this case to trial. Part of the delay was
caused by a psychiatric evaluation and competency hearing, after which the
district court found Treff incompetent to stand trial and committed him to four
months of psychiatric treatment. Following treatment, the district court, after
hearing, found Treff competent to stand trial. Other delays were occasioned by
the fact that Treff fired his first two court-appointed attorneys, and two district
court judges recused themselves

Treff was charged with the murder of his wife in a state court of Utah. As the
result of a plea bargain, Treff pleaded guilty to voluntary manslaughter and was
sentenced to 20 years imprisonment in the state's penitentiary

In this case, the "Molotov cocktail" consisted of a Slice pop bottle filled with
gasoline and a terry cloth wick. The wick was lit and the bottle was thrown onto
the roof of Fay's residence. The bottle exploded and a fire ensued. No serious
damage was done to Fay's residence, although there were burn marks on both
the roof of the house and a nearby fence

The right to self-representation is based on the Sixth Amendment, 28 U.S.C.

Sec. 1654 and Fed.R.Crim.P. 44(a)

"Once a pro se defendant invites or agrees to any substantial participation by

counsel, subsequent appearances by counsel must be presumed to be with the
defendant's acquiescence, at least until the defendant expressly and
unambiguously renews his request that standby counsel be silenced." McKaskle
v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984)

It should be noted that a defendant has no right to hybrid representation and a

request to proceed in such a manner is not deemed an election to proceed pro
se. Bennett, 539 F.2d at 49; United States v. Hill, 526 F.2d 1019, 1024-25 (10th
Cir.1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976).
The decision to allow hybrid representation and to limit the defendant's
participation in such representation is within the discretion of the trial court.
Bennett at 49; Hill at 1021-25

Our study of the record leads us to conclude that Treff was not so much
interested in defending against the crimes charged as he was in trying to inject
trial error into the proceedings which could result in reversal on appeal

The performance of defense counsel must be considered in light of the strength

of the government's case. United States v. Rivera, 900 F.2d 1462, 1474 (10th
Cir.1990); United States v. Owens, 882 F.2d 1493, 1502 (10th Cir.1989)

It should be noted that the killing of Jennifer Treff and the attempted murder of
Carol Fay on the same night are also tied together by the "Justice List." The
Justice List, which was composed by Treff, is a list of names of people against
whom Treff sought revenge. It is significant that Treff included both the names
of his wife, Jennifer Treff, and his ex-boss, Carol Fay, on this list. Thus, the
motive of revenge links these two crimes

10

The district court found, based on testimonial and other evidence, that the
Treffs had been separated and living apart since October, 1985, and, therefore,
the communications privilege did not apply. There was extensive evidence that
the marriage had failed and no evidence of any attempt at reconciliation

11

For cases where the confidential marital communication privilege has not been

applied to a failed or failing marriage, see United States v. Roberson, 859 F.2d
1376 (9th Cir.1988); In re Witness before Grand Jury, 791 F.2d 234 (2d
Cir.1986); and United States v. Byrd, 750 F.2d 585 (7th Cir.1984)
12

Molotov cocktails have historically been used as deadly weapons. For example,
they were used very effectively in World War II by the Russians in resisting the
drive of Nazi Germany into Russia