United States District Court, E.D. North Carolina, Western Division
Earl Britt, Senior U.S. District Judge
matter is before the court on defendant's recent pro
case has a lengthy history. On 15 October 2014, defendant was
indicted on three counts of cyberstalking and three counts of
transmitting threatening communications. The case was
assigned to Senior U.S. District Judge James C. Fox. The
Office of the Federal Public Defender was appointed to
represent defendant. On 30 October 2014, the court entered a
scheduling order, directing that all pretrial motions be
filed no later than 3 December 2014 and set arraignment for
the court's 5 January 2015 term. Defendant moved to
continue arraignment, which motion was allowed, and
arraignment was continued to 9 March 2015.
January 2015, defense counsel moved (1) for a determination
of defendant's mental competency to stand trial pursuant
to 18 U.S.C. § 4241 and (2) to reopen and extend the
period for filing pretrial motions to 6 February 2015. The
motions were allowed. On 2 February 2015, defendant filed a
notice of insanity defense. On 4 March 2015, the government
filed a motion for a psychiatric examination to determine
whether defendant was competent at the time of the alleged
offenses under § 4242. That motion was allowed. After
obtaining extensions of time to complete both evaluations,
the Bureau of Prisons filed the psychiatric report on 1 June
2015. The competency hearing and arraignment were set for 4
August 2015. On the government's unopposed motion, the
court continued the competency hearing and arraignment to the
court's 2 November 2015 term.
meantime, defendant filed a number of pro se
motions, including motions for recusal of Judge Fox. At a
hearing on 17 August 2015, Judge Fox denied the motions for
recusal and allowed defense counsel's oral motion to
withdraw. On 19 August 2015, Sean Vitrano, Esquire was
appointed to represent defendant. During the ensuing month,
Vitrano moved to withdraw his representation, and defendant
filed pro se multiple motions, including motions for
the withdrawal of Vitrano and the appointment of new counsel.
On 14 October 2015, the case was reassigned to the
2 November 2015 competency hearing, the court denied all of
defendant's pending pro se motions, and
subsequently, on defense counsel's request, ordered a
second psychiatric or psychological examination of defendant.
Defendant continued to file pro se voluminous
motions and other documents. Because defendant was
represented by counsel, the court denied all those motions,
with the exception of those for the appointment of new
counsel, and directed the Clerk to terminate any future
motion defendant files pro se other than a motion
for appointment of new counsel.
February 2016, the court continued holding the competency
hearing, at which the court found defendant was incompetent
to stand trial. Defendant appealed. In the meantime,
defendant continued to file pro se multiple motions
pertaining the appointment of counsel, among other things.
Because defendant continued to be represented by counsel and
because the issue of appointment of new counsel remained for
review, the court directed the Clerk to terminate any future
motion defendant filed pro se.
August 2016, the court received from the Bureau of Prisons a
Certificate of Restoration of Competency to Stand Trial and
then set the matter for hearing on 29 August 2016 pursuant to
18 U.S.C. § 4247(d). During that hearing, the court
continued the hearing pending the resolution of
defendant's appeal of the court's order finding him
incompetent to stand trial. Also, on defendant's
unopposed motion, the court ordered that defendant remain
hospitalized at FMC-Butner to permit him to undergo cataract
surgery on both eyes.
November 2016, the grand jury returned a superseding
indictment against defendant; the charges remained the same.
Shortly thereafter, defendant again and without objection
from the government moved to extend his hospitalization at
FMC-Butner until such time as defendant underwent cataract
surgery and medical staff certified that it is medically
appropriate to return him to the custody of the U.S. Marshal
Service. The court allowed the motion.
January 2017, the Fourth Circuit Court of Appeals vacated the
court's order finding defendant mentally incompetent to
stand trial and remanded with instructions that the court
conduct a new competency hearing. After the mandate issued,
the court set the competency hearing for 27 February 2017. On
defendant's unopposed motion, the court continued the
competency hearing to enable a neuropsychologist to evaluate
defendant. On defendant's motion, the court twice
continued the competency hearing to enable defendant to
undergo cataract surgery on his left eye (having already had
surgery on his right eye). On 5 June 2017, the court held the
competency hearing and found defendant competent to proceed.
The court also permitted defense counsel to withdraw,
directed the Federal Public Defender to appoint new counsel,
and set arraignment and trial for 10 July 2017. Thomas
Manning, Esquire was appointed to represent defendant. Twice,
on defense counsel's unopposed motion, and because
defense counsel needed additional time to meet with
defendant, prepare, and engage in plea negotiations, the
court continued arraignment and trial.
meantime, on 6 August 2017, defendant moved for an order
directing the Bureau of Prisons to recommence defendant's
eye treatment. The court directed the U.S. Marshal Service to
consult with physicians at FMC-Butner about what additional
treatment for defendant is available and recommended and
directed that a report be filed with the court. The report
from the Bureau of Prisons was filed on 28 August 2017 and
indicated that while defendant could benefit from additional
eye procedures, none were considered medically necessary.
September 2017, defendant filed pro se a motion to
appoint new counsel. On 11 October 2017, the court held a
hearing on that motion, and defendant withdrew the motion.
Defendant plead not guilty to all charges in the superseding
indictment, and the court set trial for 11 December 2017.
November 2017, defendant filed pro se a notice that
he chose to represent himself and requested a hearing
thereon. On 7 November 2017, the grand jury returned a second
superseding indictment against defendant; the charges
remained the same as in the initial and superseding
indictments. On 20 November 2017, defendant appeared before
the court at which time the court conducted defendant's
initial appearance on the second superseding indictment.
Defendant plead not guilty to all charges. The court then
allowed defendant to represent himself and appointed Manning
as standby counsel.
that time, defendant has filed pro se numerous
documents and motions which are presently before the court.
Many of the motions are repetitive, nonsensical, and/or
illegible. More importantly, they are all untimely. The
deadline for filing pretrial motions long ago passed, and it
is the eve of trial. The court has gone to great lengths to
accommodate defendant's requests regarding court
appointed counsel, and in fact, most recently appointed one
of the leading defense lawyers in the state. The court has
made defendant fully aware of the hazards and disadvantages
of representing himself. Defendant must accept the
consequences of his decision to represent himself,
particularly in light of the fact that he did so on the ...