United States v. C. Wesley Bird

This is an appeal from convictions on two counts of mailing threatening communications in violation of 18 U.S.C. § 876 . Appellant was not represented by counsel at trial, nor was advisory counsel appointed for him. He appeals on the ground that he did not knowingly and intelligently waive his right to counsel. We reverse the convictions.

These criminal charges arose out of appellant’s bitter and continuing feud with Eugene Williams, a customer of a water company owned and operated by appellant. Williams, a black man, received written communications containing racist threats which formed the basis of appellant’s indictment.

Appellant, an elderly, retired professor, appeared at his arraignment without counsel, pleaded not guilty to the charges and waived a jury trial. There is no transcript or taped recording of the arraignment proceedings, despite the requirements of the Court Reporter Act. 28 U.S.C. § 753 . Although he lacked an independent recollection of the arraignment, the presiding magistrate later filed an affidavit stating that pursuant to his customary practice he must have informed appellant of his right to counsel and must have determined that appellant knowingly and…