940 F.

2d 1539

Unpublished Disposition
NOTICE: Tenth Circuit Rule 36.3 states that unpublished
opinions and orders and judgments have no precedential value
and shall not be cited except for purposes of establishing the
doctrines of the law of the case, res judicata, or collateral
estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jean R. CANON, Defendant-Appellant.
No. 90-2157.

United States Court of Appeals, Tenth Circuit.

Aug. 16, 1991.

Before JOHN P. MOORE and McWILLIAMS, Circuit Judges, and

KANE, District Judge.*
ORDER AND JUDGMENT**
JOHN P. MOORE, Circuit Judge.

Jean R. Canon appeals from his conviction for willfully making and using false
statements on income tax forms and knowingly making and presenting a false
refund claim. The false statements consisted of fictitious reports of
compensation paid by Mr. Canon to other persons, and the false refund claim
was for $29 million based upon those fictitious reports. He raises four issues on
appeal. He contends he was denied his right to counsel at trial; that he did not
knowingly and intelligently waive his right to trial by jury; that he was
improperly denied the opportunity to subpoena witnesses; and that the
combination of the previous errors deprived him of his right to a fair trial. We
find no error and affirm.

The issues presented in this case stem from Mr. Canon's quixotic notion that the
Sixth Amendment limits the criminal jurisdiction of federal courts to either

"The Common Law" or "the Criminal Aspects of the Admiralty Jurisdiction."

R.1, tab. 8. From this absurdly distorted view, Mr. Canon, who insisted on
representing himself, argued persistently the district court had no "jurisdiction"
over him or the charged offenses. Nothing the trial court said to Mr. Canon
persuaded him that his notion of "jurisdiction" was fatally skewed.1
3

Now represented by counsel, who had been assigned by the trial court as a
standby legal adviser at trial, Mr. Canon takes the position that the district
court denied him his Sixth Amendment right to counsel. The argument is
predicated upon the contention that the judge failed to determine Mr. Canon
had an understanding of the hazards of self-representation. United States v.
Padilla, 819 F.2d 952, 956 (10th Cir.1987). Counsel admits the judge found
Mr. Canon competent, but contends he failed to find Mr. Canon's waiver of
counsel knowing and intelligent. Under the circumstances present here, counsel
argues the court should have forced counsel upon Mr. Canon. We disagree.

To put the issue in context, we must first review the facts. The limited record
before us contains only part of the pretrial dialogue between Mr. Canon and the
court over the issue of counsel. Appended to the government's brief, we have
also a partial transcript of Mr. Canon's arraignment before a magistrate judge. It
is glaringly patent from these records that Mr. Canon was unalterably fixed
upon the notion he had a right to represent himself and he was not going to
accept appointed counsel.

Before the magistrate, Mr. Canon refused to respond to questions designed to

disclose his understanding and competence until the judge produced "an
injured party before this court." Taking the position that his education and
knowledge of the rules of procedure and evidence were "private information"
which he did not have to disclose until an "injured party complainant" was
produced, Mr. Canon obstructed the magistrate's efforts to determine whether
the defendant could represent himself.

When the district judge later attempted to delve into that question, Mr. Canon
responded by demanding to know whether the court was exercising its
"common law" or "admiralty" jurisdiction, claiming without this knowledge he
was unable to "prepare a defense." In evident exasperation after many attempts
to communicate with Mr. Canon, the trial judge stated: "Well, you can just
accept it on face value, that I have jurisdiction." To which Mr. Canon replied,
"I can't accept it sir. It has to be one or the other."

Finally, after jousting over whether the judge or the defendant was to control

the course of events, Mr. Canon protested his "rights" were violated by the trial
court's unwillingness to hear an "order to show cause" filed by Mr. Canon. The
trial judge then reiterated Mr. Canon "should avail [him]self of counsel,"
prompting Mr. Canon to ask, "Are you trying to force me to have a licensed
attorney, sir?" When the court replied it was not, Mr. Canon responded:
8

MR. CANON: Well, it's going to be in common law, sir, too.

THE COURT: And that's your privilege.

10

MR. CANON: No, it's a right.

11

THE COURT: You may be seated.

12

MR. CANON: Under the constitution.

13

It is true, as counsel suggests, at no time did the trial court make an

independent, specific finding that Mr. Canon was aware of the hazards of selfrepresentation as required by Padilla. It is equally evident, however, Mr. Canon
knew he had the constitutional right to act as his own counsel, was unwilling to
accept appointment of counsel, looked upon such appointment as a
transgression of his right of self-representation, and was unwilling to accept any
advice given by the court. By now contending the trial judge nevertheless
should have forced counsel upon him to protect his Sixth Amendment right,
Mr. Canon asks too much.

14

Counsel argues to us that Mr. Canon had "difficulty in understanding[ ] the

proceedings." Indeed, Mr. Canon's perception of the law and his bizarre notions
of criminal jurisprudence are plain in the record. Nonetheless, his difficulty was
not in understanding the proceedings or perceiving his right to counsel and his
right to self-representation. His difficulty was in convincing the court that his
skewed notions of the law were correct and that he should be granted a forum
from which to advocate those views. Moreover, it is evident from the record
Mr. Canon tied any desire for counsel to having someone who would advocate
his misconceived legal theories.2

15

With the benefit and confidence of hindsight, one might now say the trial court
could have taken another approach to convince Mr. Canon that his notion of
jurisdiction was wrong. Perhaps, if Mr. Canon had been convinced of his error,
he might have accepted appointment of counsel, but that is rank speculation.

We must judge the actions of the trial court in their context, and by doing so,
we conclude he acted properly and within the bounds of reason. The defendant
managed to maneuver the trial judge into a situation in which nothing he did
would be correct. Had the court forced counsel upon the defendant, we would
now be faced with an argument over the constitutionality of that act. There
comes a time, therefore, when even a pro se defendant must be made to endure
the consequences of his own knowing and voluntary strategy.
16

Mr. Canon was convinced the court was without jurisdiction to try him. He
refused to accept the court's ruling to the contrary and chose to follow the
dictates of his own mistaken theory. Nothing contained within the Sixth
Amendment requires a trial judge to force-feed intelligence to an adamant pro
se defendant, and we will not impose such a duty in this case.

17

Mr. Canon submitted a written "Notice and Objection" to the court refusing a
trial by jury. Such an objection ordinarily indicates a knowing and intelligent
waiver. See United States v. Hubbard, 603 F.2d 137, 142 (10th Cir.1979).
Defendant's notice stated:

18

Jean R. Canon objects to having a trial by jury, and Jean R. Canon did not
authorize anyone to move in his behalf for trial by jury. If there is a trial it will
be by Judge only.

19

R.I, tab. 8 (emphasis in original). The district judge also held a hearing on the
jury trial issue at which he told Mr. Canon:

20

Now, a trial is a very complicated process. However, it is your right to object to

a trial by jury if that's your wish. And I just want to make sure that you
understand what you're doing by communicating this to the Court, because you
are entitled to a jury trial.

21

And there is a benefit to a jury trial because you--a jury of twelve people must
all of them unanimously be convinced of your guilt before you can be
convicted. And it's a right given to you by the constitution. But, of course, you
can waive that right, but I want you to understand that what you're doing, if
indeed that is your desire, not to be tried by a jury.

22

R. II, 4. Mr. Canon responded that the case was based on a question of law and
therefore a jury could not hear it. The court explained:

23

Well, the thing is, Mr. Canon, if that's the only reason you're waiving a jury

23

Well, the thing is, Mr. Canon, if that's the only reason you're waiving a jury
trial, that's not necessary, because I will deal with all the questions of law and
the jury will only act as a fact-finder.

24

R. II, 5. Despite this explanation, Mr. Canon insisted he did not want to be tried
by a jury. He cannot now be heard to complain his waiver was neither knowing
nor voluntary.3

25

Mr. Canon asserts his Sixth Amendment right to compulsory process was
violated when the trial court decided not to issue subpoenas for the witnesses
listed by the defendant. Fed.R.Crim.P. 17(b), in part, provides the court shall
issue subpoenas without cost "upon a satisfactory showing ... that the presence
of the witness is necessary to an adequate defense." We review the court's
decision for abuse of discretion. United States v. Greschner, 802 F.2d 373, 378
(10th Cir.1986), cert. denied, 480 U.S. 908 (1987). The defendant's list of
witnesses included judges, magistrates, United States attorneys, IRS
employees, and members of the grand jury. To determine the necessity of these
witnesses, the court asked standby counsel to have Mr. Canon tell the court in
confidence "what he expected the witnesses to testify to and the respective
addresses." Mr. Canon refused, and the court denied the request. This ruling
was not an abuse of the court's discretion.

26

While the right to compel the attendance of witnesses by subpoena is a

constitutional fixture, the question of whether such subpoenas shall issue
without cost to the accused is restricted by Rule 17(b). Given the identity of the
witnesses, the trial court did not act beyond its discretionary authority by
requiring Mr. Canon to state the subject matter of their proposed testimony so
that the court could decide whether it was relevant to an adequate defense. Mr.
Canon's non sequitur prior representations to the court made the inquiry
particularly appropriate in this case. 4

27

Given our resolution of the foregoing issues, we conclude defendant's assertion

of a due process violation based upon the accumulation of those claims is
groundless. We, therefore, decline to consider it further.

28

AFFIRMED.

The Honorable John L. Kane, Jr., United States District Court Judge for the
District of Colorado, sitting by designation

**

This order and judgment has no precedential value and shall not be cited, or

used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
1

The record does not indicate the court informed Mr. Canon of the provisions of
18 U.S.C. Sec. 3231, but neither does it indicate Mr. Canon would have been
convinced by the stark language of that statute. Given the Supreme Court held
in 1812 that there are no federal common law crimes, United States v. Hudson
& Goodwin, 7 Cranch 32 (1812), it is easy to understand why the district court
had such difficulty attempting to comprehend the "issue of law" Mr. Canon was
bent upon pursuing

Counsel argues, in effect, that Mr. Canon claimed in a letter to the trial court
that it was denying him the right "to obtain counsel of his choice." That claim
however, was in the context that the magistrate refused
to provide the taxpayer identification number and the date of birth on [sic] the
persons making claims against Jean R. Canon to prevent a pattern of
racketeering and corrupt organization from occurring in that courtroom that
day, and in that so called criminal case, has made it impossible for Jean R.
Canon to defend himself; to obtain counsel of his choice; ...
R. I, tab. 8 (emphasis in original). So far as the statement is understandable, we
perceive it to mean the magistrate's refusal to respond to his requests for
irrelevant material was the cause of the so-called deprivation of his rights.

Mr. Canon also argues the government did not consent as required by
Fed.R.Crim.P. 23(a). That argument is specious. Government's counsel in open
court expressed his awareness of Rule 23(a) and raised only the possibility the
trial court might want to recuse because of the judge's connection with another
case. In the context of the record, the government's failure to object to trial by
the court constitutes consent

Even at this juncture, counsel fails to tell us what these witnesses would have
testified to that would have been necessary to the defense. Given the evidence
presented by the government in its case, the suggestion that any of the proffered
witnesses would have presented testimony bearing on the charges stretches
credulity