Before MEDINA, WATERMAN and MARSHALL, Circuit Judges.
Appellant was convicted after a jury trial on his plea of not guilty to a twocount indictment charging evasion of personal income tax for the years 1955 and 1956, in violation of 26 U.S.C. § 7201. He was sentenced to nine months imprisonment on each count, the sentences to run concurrently. A review of the record in this case convinces us that the totality of error deprived appellant of a fair trial and requires a reversal of the judgment.
Immediately prior to the trial defendant requested a conference which was held in the judge's chambers. He complained that he had been in an automobile accident two months before and was not physically able to go to trial. After a series of questions by the judge as to the details of the accident and the extent of the alleged injuries, he asked Curtiss what he should do. Defendant replied by giving him a written "statement" concerning his efforts to have the Assistant U.S. Attorney agree to accept a plan for payment of the tax deficiencies in lieu of prosecution. To this, the judge explained that there was a difference between civil and criminal responsibilities. The following colloquy then took place:
"The Defendant: I don't feel that I am guilty with intent, I feel I have erred.
"The Court: Well, there is the situation, you have the choice of either procedure, either to plead guilty, if you feel that that meets with your approval, or if you don't think you are guilty, you do what anybody else does in similar circumstances, and put your position before the jury on the trial.
"The Defendant: All right, your Honor.
"The Court: That is what you are at liberty to do. You have a right to have your say in the case, you can take the stand if you see fit and explain your position under the laws of evidence, if it fits in with that, and do what any other defendant does. You are in no different position than any defendant before a Court on a charge.
"The Defendant: The only difference, your Honor, is that I have been through quite an ordeal in the last few months with this, and this coming right on top of it.
"But I have no choice. O.K., I will go along."
From the minutes of the conference it appears that defendant had had three attorneys during the pre-trial period, the last one being Marshall Kaplan who was appointed by the court. The judge stated that Mr. Kaplan had subsequently advised him that defendant did not want him as a lawyer and preferred to act as his own lawyer. However, the judge requested Mr. Kaplan to sit in the court and to be available to defendant for advice.
The trial followed immediately after the conference with the defendant representing himself and Mr. Kaplan seated at the table with him. The Government's case consisted of several exhibits and oral testimony. There was some crossexamination and some objections to exhibits by defendant, all of which were overruled. The defendant did not testify and called only one witness, a man who had previously testified for the Government. At the conclusion of the trial, the judge stated:
"Let the record note the defendant is now conferring with Mr. Kaplan, whom the Court has assigned as a lawyer, and he has conferred with him throughout the trial, which he is entitled to do."
Defendant's inept efforts to make an opening statement, to object to offers of evidence, to question and cross-examine witnesses, and to sum up, leave no doubt that he was not adequately represented. Therefore, the sole question on this point is whether he intelligently waived his right to assistance of counsel and knowingly chose to represent himself. While we recognize the difficulties a trial judge faces in situations of this kind, we believe that the right to counsel in a federal criminal trial can only be waived after a clear-cut explanation of the defendant's rights and an intelligent exercise of the choice.
"If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel". Fed. R. Crim. P. 44. Indeed, we must "indulge every reasonable presumption against waiver," and cannot "presume acquiescence in the loss of fundamental rights." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938). See also: Von Moltke v. Gillies, 332 U.S. 708, 68 S. Ct. 316, 92 L. Ed. 309 (1948).
There is nothing in the record to show an explanation of defendant's right to counsel as set forth in Rule 44,*fn1 nor is there a clear cut election by defendant. At best, the court relied on a statement by Mr. Kaplan, made some time before the date of the trial, to the effect that Curtiss did not wish to avail himself of his services.*fn2 Curtiss' statements indicate that while he was unhappy about his relationship with Mr. Kaplan, he certainly had no wish to try the case himself but felt that "he had no choice." Of course the judge need not have appointed other counsel besides Mr. Kaplan unless Curtiss showed good cause, United States v. Gutterman, 147 F.2d 540 (2 Cir. 1945), but it was erroneous to require him to try his own case without a clear cut statement that he intelligently wished to do so.
Even if some doubt exists on the question whether defendant effectively waived his right to counsel, the judgment must be reversed because of improper statements made during the government's summation, which take on special significance where, as here, the defendant has acted as his own attorney. During his summation, Curtiss several times sought to explain his business conduct and give excuses for his tax deficiencies. Each time, the judge on objection by the prosecution admonished him to confine his argument to the evidence. The prosecutor, when his turn came to address the jury, made the following comments:
"I say that this man here stands before you and he begs for your sympathy; he is strictly a faker, he is trying to pull the wool over your eyes, and you are not going to let him get away with it.
"Ladies and gentlemen, I don't see how there could be any mistake whatsoever, and I know that as intelligent jurors you are not going to permit him to stand before you and tell you bold face lies, not under oath, as the witnesses testified on the chair, each and every one of them were sworn, they testified under oath, but the defendant stood down here and he asked a lot of questions." (Emphasis supplied.)
Not only were these statements inflammatory and prejudicial to the defendant, but they in effect constituted a comment on his failure to take the stand, which itself is reversible error.
"The Fifth Amendment to the United States Constitution provides in unequivocal terms that no person may 'be compelled in any criminal case to be a witness against himself.' To protect this right Congress has declared that the failure of a defendant to testify in his own defense 'shall not create any presumption against him.' Ordinarily, the effectuation of this protection is a relatively simple matter - if the defendant chooses not to take the stand, no comment or argument about his failure to testify is permitted." Stewart v. United States, 366 U.S. 1, 2, 81 S. Ct. 941, 6 L. Ed. 2d 84 (1961).
Appellant's summation as his own attorney did not constitute a waiver of his Fifth Amendment protection. Nor could it be used as an excuse to disregard the admonition against "comment or argument about his failure to testify." The government contends that defendant's efforts to argue his case in summation with facts outside the record "left the Assistant United States Attorney no alternative except to let these arguments go unanswered or to answer them in his summation." We do not agree. In a case involving unfair tactics of defense counsel, the Fifth Circuit stated:
"We are not impressed with the argument that the conduct of the prosecutor was caused by the conduct of defense counsel. A prosecutor should be immune to improper tactics. If he feels that his opponent has overstepped, the remedy is an appeal to the trial court - not in the adoption of unfair ...