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10th Circuit: District Court Must Ensure When Defendant Waives Right to Counsel He Understands He’s Required to Adhere to Federal Procedural and Evidentiary Rules

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit ruled that a district court must ensure that when a criminal defendant waives the right to counsel, the defendant understands he is required to adhere to federal procedural and evidentiary rules. 

Louis Delynn Hansen was indicted for tax evasion and tax obstruction. Even before his initial appearance, Hansen repeatedly filed pleadings based on sovereign citizen theories that the courts have previously rejected as frivolous. See, e.g., Ford v. Pryor, 552 1174 (10th Cir. 2008); Lonsdale v. United States, 919 F.2d 1440 (10th Cir. 1990). His first filing was labeled “Rescheduled Court Date” wherein, after he received a summons to appear, he “informed” the court that he would “not be available to attend” the scheduled court date. The court treated it as a motion for a continuance and issued an order denying it. Hansen then handwrote diagonally across the order, “I reject your offer to contract” and returned the order to the court. 

Another filing that Hansen submitted was a document from “DeLynn of the Lawful House of Hansen” seeking to “release and discharge Judge Clark Waddoups from his emergency war powers jurisdictional duties created by § 17 of the ‘Trading with the Enemy Act’” and to “inform the court that [Hansen], a Private American National Citizen who has harmed nobody and nothing [does] not consent to statutory military jurisdiction of any kind.” 

Because Hansen refused appointment of counsel at his initial appearance, the court held a hearing to determine if Hansen was validly waiving his right to counsel. When the court asked Hansen if he wished to represent himself, Hansen replied, “I can’t represent myself because I am myself.” He further told the court that Louis DeLynn Hansen was a fiction that the court has named as a defendant. 

Hansen asked the court if accepting counsel would put him in the jurisdiction of the court, stating, “I am not a U.S. citizen. I’m not a citizen of the United States. I’m an American State National.” 

The judge warned Hansen that those jurisdiction arguments were frivolous, that they had been rejected by the courts of appeals, and that he was facing the risk of imprisonment. 

The court then asked Hansen if he understood that if he represented himself, he would be required to comply with the rules of procedure and the rules of evidence. Hansen responded, “No.” 

Hansen then began discussing how “President FDR and Congress concocted a fraud on the American people.” He further stated he wanted a photo I.D. of the United States so he could face his accusers. The court then took a recess to allow Hansen to confer with potential standby counsel.

When the hearing resumed, Hansen affirmed he would like the standby counsel appointed. The court observed that Hansen held a chiropractic doctorate and had no criminal history. 

The judge then stated, “I find that you do fully understand the risks and that with [standby counsel’s] support and counsel you are capable because of your education, intelligence, and prior experience ... to represent yourself. I find that the risks of doing so have been fully explained to you and the risk of a prosecution that may result in a conviction is one that you understand.”

Hansen represented himself at the subsequent jury trial where he was convicted on both counts.

Hansen appealed, arguing, inter alia, that his waiver of his right to counsel was not valid.

The Tenth Circuit observed: “A defendant has the Sixth Amendment right to waive his right to counsel and represent himself in a criminal case.” Faretta v. California, 422 U.S. 806 (1975).

However, the right to self-representation is not a license to refuse to, or fail to, comply with the relevant rules of procedure. Id. The waiver must be voluntary, knowing, and intelligent. United States v. Williamson, 859 F.3d 843 (10th Cir. 2017).

Knowing and intelligent does not mean it is a wise decision but means only that a defendant was reasonably informed by the trial court of the hazards of self-representation and had sufficient understanding of those hazards. United States v. Turner, 287 F.3d 980 (10th Cir. 2002). A knowing and intelligent waiver can be made only when a defendant is apprised of the nature of the charges, the statutory offenses, the range of allowable punishments, possible defenses and mitigating circumstances, and all other facts essential to a broad understanding of the whole matter. United States v. Weninger, 624 F.2d 163 (10th Cir. 1980). These are known as the “Von Moltke factors” taken from Von Moltke v. Gilkies, 332 U.S. 708 (1948).

A waiver is invalid if the court either fails to warn a defendant that he is required to follow applicable rules of procedure and evidence or fails to satisfy itself that the defendant understands the requirement of following those rules. United States v. Padilla, 819 F.2d 952 (10th Cir. 1987).

The tried-and-true method for a district court to assess whether a waiver is made intelligently and knowingly is to conduct a thorough and comprehensive formal inquiry of the defendant on the record, commonly referred to as a “Faretta hearing.” United States v. Vann, 776 F.3d 746 (10th Cir. 2015). To discharge this duty of inquiry properly in light of the strong presumption against waiver of the right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. Id. While a Faretta hearing is a sufficient method, it is neither the only method nor a required method for the court to satisfy itself that the waiver of counsel was intelligently and knowingly made. Id. 

There is no prescribed formula or script to be read to a defendant who states he elects to proceed without counsel, but the information a defendant must possess to make an intelligent waiver will depend on a range of case-specific factors that include a defendant’s education, his background and experience, and the particular facts and circumstances of the case. Iowa v. Tovar, 541 U.S. 77 (2004). A waiver may be valid even when the district court’s inquiry is deficient. Vann. In particular, such may be true when surrounding facts and circumstances indicate that a defendant understood his right to counsel and the difficulties of pro se representation at the time of the waiver. Id.

The Tenth Circuit determined that the district court failed to conduct a sufficient inquiry. Hansen answered “no” when asked if he understood he would be required to comply with federal procedural and evidentiary rules. The case-specific factors, i.e., Hansen’s numerous court filings, his frivolous sovereign citizen arguments, and his behavior at his pretrial appearances, evinced he neither understood the rules nor complied with them. Consequently, neither the district court’s inquiry nor the case-specific factors demonstrated that Hansen’s waiver was knowingly and intelligently made. 

Accordingly, the Court reversed the district court’s waiver determination and remanded to the district court with instructions to vacate Hansen’s judgment in full and to conduct further proceedings consistent with its opinion. See: United States v. Hansen, 929 F.3d 1238 (10th Cir. 2019).


Writer’s note: The Court left undecided whether a defendant’s conduct at trial may be considered evidence of a valid waiver of counsel. However, the Court noted that the Ninth Circuit, in United States v. Mohawk, 20 F.3d 1480 (9th Cir. 1994), concluded that trial conduct is categorically immaterial when deciding whether a waiver of counsel was valid. 

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United States v. Hansen



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