United States v. Kriemelmeyer, Freder

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted July 7, 2008*
Decided July 7, 2008

Before

RICHARD D. CUDAHY, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

Nos. 07-3904, 07-3905
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Western District of
Plaintiff-Appellee, Wisconsin.

v. No. 07-CR-52-C-01

FREDERICK G. KRIEMELMEYER Barbara B. Crabb,
Defendant-Appellant. Chief Judge.

ORDER

Frederick Kriemelmeyer was convicted after a jury trial on four counts of falsifying
federal income tax returns, 26 U.S.C. § 7206(1), and was sentenced to 36 months’
imprisonment. Along with a number of entirely frivolous tax-protest arguments,
Kriemelmeyer appears to argue on appeal that the district court denied him the effective

*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 34(a)(2).
Nos. 07-3904, 07-3905 Page 2

assistance of counsel and that insufficient evidence supported the jury’s verdict. We
affirm.

In 2002, Kriemelmeyer was a self-employed dentist who owned and operated a
dental office in LaCrosse, Wisconsin. That year, his mother began frequently cashing
checks made payable to cash at a local bank. Bank employees became suspicious of these
deposits and notified the IRS, which investigated and in December 2004 executed a search
warrant at his dental office. In March 2007 a grand jury returned an indictment charging
that Kriemelmeyer’s 2000, 2002, 2003, and 2004 returns reported gross receipts
substantially below his income. The IRS determined that he underreported his gross
receipts by $392,023 in total for those four years, thus underpaying his taxes by $135,337.

At a pre-trial hearing, the magistrate judge informed Kriemelmeyer of his right to an
attorney and asked him if he wanted an attorney. He declined. The magistrate judge asked
him questions to ensure that he understood his right to an attorney, but he continued to
insist that the did not want one. Kriemelmeyer maintained that he had studied law on his
own, had been following tax-related issues for 15 years, had represented himself in court
before, was familiar with the rules of criminal procedure and evidence, and understood the
charges against him. The magistrate judge tried to persuade him to use an attorney
nonetheless, but he would not change his mind. After the hearing, Kriemelmeyer filed a
motion for appointment of David Wynn Miller, a so-called “Plenipotentiary Judge,” as
counsel. Because Miller was not admitted to practice in the Western District of Wisconsin
and there was no indication that he was a licensed attorney anywhere, much less a judge,
the magistrate judge denied the motion.

During Kriemelmeyer’s three-day jury trial, the government presented 17 witnesses,
including some of his former patients, IRS agents and employees, and employees at the
bank where his mother cashed his checks. Kriemelmeyer called Miller as a witness and
also testified himself. His patients and IRS agents testified that the checks that
Kriemelmeyer’s mother cashed were paid to Kriemelmeyer in return for dental services.
Patients further testified that sometimes Kriemelmeyer would exchange cash for silver and
then the client would “barter” the silver for dental services. Kriemelmeyer would often put
a star next to an amount on the patient’s record, indicating that the patient paid defendant
five times more than what the records indicate, and he would report the lower amount on
his tax returns. The government also introduced into evidence letters from state and
federal taxing authorities advising him that his belief that bartering silver for dental
services did not create income was frivolous. Kriemelmeyer was convicted of all counts.

On appeal Kriemelmeyer’s arguments are difficult to discern, but it is apparent that
he contends that he was denied the effective assistance of counsel. A criminal defendant
Nos. 07-3904, 07-3905 Page 3

may proceed pro se when he voluntarily and intelligently elects to do so, and we will
reverse only if the record as a whole does not show that the defendant knowingly and
intelligently waived his right to counsel. United States v. Avery, 208 F.3d 597, 601 (7th Cir.
2000). We review the district court’s decision to allow a defendant to proceed pro se for
abuse of discretion. Id. In this case, there is no abuse. The magistrate judge thoroughly
questioned Kriemelmeyer to establish that he understood the disadvantages of
representing himself, that he was competent to represent himself, and that the decision was
voluntary. See id. Kriemelmeyer does not point to any deficiencies in the judge’s inquiry,
nor does he identify any basis to support his assertion that the court abused its discretion in
allowing him to represent himself. Furthermore, had the court allowed Miller to represent
Kriemelmeyer, that decision would have been an abuse of discretion because representation
by a nonlawyer, as Miller appears to be, is by definition ineffective. See Cole v. United States,
162 F.3d 957, 958 (7th Cir. 1998). And, in addition, even if Miller were licensed he could not
have served effectively because Kriemelmeyer used Miller as his only witness (beside
himself). A lawyer cannot ordinarily represent a client and simultaneously serve as the
client’s witness. United States v. Marshall, 75 F.3d 1097, 1106 (7th Cir. 1996).

Kriemelmeyer’s only other discernable argument is that the jury had insufficient
evidence to convict him. We will overturn a conviction based on insufficient evidence only
when “the record is devoid of evidence from which a reasonable jury may find guilt
beyond a reasonable doubt.” United States v. Seymour, 519 F.3d 700, 714 (7th Cir. 2008). In
order to convict Kriemelmeyer, the jury was required to find that:

(1) that the defendant made or caused to be made, a federal income tax return
for the year in question which he verified to be true; (2) that the tax return was
false as to a material matter; (3) that the defendant signed the return willfully
and knowing it was false; and (4) that the return contained a written declaration
that it was made under the penalty of perjury.

United States v. Peters, 153 F.3d 445, 461 (7th Cir. 1998). Testimony from the IRS agents,
Kriemelmeyer’s patients, and Kriemelmeyer himself, combined with the records seized
from his office and the tax returns established that Kriemelmeyer knowingly and
significantly under-reported the his income on his tax returns. Specifically, Kriemelmeyer
admitted that he signed and submitted the tax returns that were proven to contain false
statements of income. His patients’ testimony and his own internal records provided
ample evidence that he knew that he received higher income than his returns reflected.
Furthermore, letters from tax authorities informing him of his tax obligations, and the fact
that his mother cashed his checks for him provide further, and more than sufficient,
Nos. 07-3904, 07-3905 Page 4

evidence that he acted willfully and knowingly. The record thus contains ample evidence
to support Kriemelmeyer’s convictions.

Kriemelmeyer’s remaining arguments are patently frivolous, and include many
typical and tired tax-protestor arguments, like the claim that the payment of taxes is
voluntary, that § 7206(1) does not have the force of law, and that he is not subject to the tax
laws. We have said that “these arguments, frivolous when first made, have been rejected in
countless cases. They are no longer merely frivolous; they are frivolous squared.” United
States v. Cooper, 170 F.3d 691, 691 (7th Cir. 1999).

For the foregoing reasons, we AFFIRM Kriemelmeyer’s conviction.