United States District Court, E.D. North Carolina, Western Division
B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
case comes before the court on Defendant's motion to
proceed pro se with standby counsel. [DE-31]. The
Government filed a response [DE-33], and the court held a
hearing on April 18, 2019 [DE-34]. For the reasons that
follow, the motion is allowed.
was indicted by a grand jury for conspiracy to distribute one
kilogram of heroin in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846 ("Count One") and
for possession with intent to distribute 100 grams or more of
heroin in violation of 21 U.S.C. § 841(a)(1)
("Count Two"). [DE-1]. The indictment also alleged
that Defendant had at least one prior conviction for a felony
drug offense for purposes of 21 U.S.C. §§ 841(b)
and 851. Id. If convicted, Defendant faces a
significant term of imprisonment. See Penalty Sheet
[DE-5] (indicting the minimum penalty on Count One is not
less than ten years' imprisonment, not more than life and
the potential enhanced sentence is not less than twenty
years' imprisonment, not more than life).
initial appearance, Defendant was advised of the charges
against him and the maximum penalties, and he indicated he
understood them, although he expressed some disagreement
regarding the drug quantity alleged in Count One. Defendant
was advised of his Constitutional rights, including his right
to counsel, and the court appointed counsel to represent him.
detention hearing, Defendant was represented by counsel but
expressed a desire to cross-examine the Government's
witness. Defendant asked questions, some relevant and some
improper, which appeared aimed at disputing the witness's
testimony. The court cautioned Defendant that it was
advisable for his attorney to question the witness but that
he could continue at his own peril, and Defendant's
counsel completed the cross-examination. Defendant also spoke
in closing, which the court again advised against, and
Defendant asserted his membership in the Moorish Science
Temple and asking that his First Amendment rights be
respected. Defendant's counsel also presented a closing
argument. Defendant was detained pending arraignment and
arraignment was set for April 18, 2019, and on March 27,
2019, Defendant's counsel filed the instant motion for
Defendant to proceed pro se with standby counsel. [DE-31]. On
April 8, 2019, the court received a document from Defendant
entitled Affidavit of Fact, which discussed his affiliation
with the Moorish Science Temple of America and requested that
"the Free National Constitution of the United States of
America and the Divine Constitution and By-Laws of the
Moorish Science Temple of America be upheld and
respected." [DE-32]. The court held a hearing on
Defendant's motion to proceed pro se on April
18, 2019. [DE-36].
Sixth Amendment provides criminal defendants with both a
right to the assistance of counsel and an implied right to
self-representation. Faretta v. California, 422 U.S.
806, 807, 819 (1975). A Defendant's waiver of the right
to counsel must be (1) clear and unequivocal; (2) knowing,
intelligent, and voluntary; and (3) timely. United States
v. Jennings, No. 5:18-CR-318- FL-1, 2019 WL 1338388, at
*l (E.D. N.C. Mar. 25, 2019) (citing United States v.
Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000)).
"Although a defendant need not himself have the skill
and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be
made aware of the dangers and disadvantages of
self-representation, so that the record will establish that
he knows what he is doing and his choice is made with eyes
open." Faretta, 422 U.S. at 835 (citations and
internal quotation marks omitted). Furthermore, "the
right to self-representation is not absolute" and may
not be used as a delay tactic, for disruption, for distortion
of the system, or for manipulation of the trial process.
Frazier-El, 204 F.3d at 559-60 (citations omitted).
Finally, "a pro se defendant has no right to standby
counsel when he chooses to proceed pro se," and the
court has "broad discretion to guide what, if any,
assistance standby, or advisory, counsel may provide to a
defendant conducting his own defense." United States
v. Beckton, 740 F.3d 303, 307 (4th Cir. 2014) (citations
April 18, 2019 hearing on Defendant's motion to proceed
pro se with standby counsel, the court heard from
Defendant's counsel, the Government's counsel, and
the Defendant. Defense counsel stated that he had met with
his client by telephone or in person on three prior occasions
and that Defendant had articulated a desire to proceed pro
se "from the very beginning because of his
affiliation with the Moorish Science Temple of America."
Hr'g Tr. [DE-36] at 4:8-17. Defense counsel later
clarified that he did not believe Defendant simply wanted to
file frivolous motions but that Defendant's desire to
proceed pro se "goes to the very heart of his right to
represent himself as a human being ... ." Id.
at 11:19-25. Defense counsel advised his client against
making frivolous legal arguments, and Defendant continued to
assert his desire to proceed pro se. Id. at 4:18-25.
Defense counsel advised the court he was willing to continue
in his role as lead counsel or to proceed as standby counsel.
Id. at 5:13-15. The Government argued that
Defendant's desire to file frivolous motions questioning
the court's jurisdiction appeared to be his primary
motivation to proceed pro se, citing Defendant's
pro se filing [DE-32] and the Frazier-El
case. Mat 6:18-10:17, 20:18-21:11.
response to questioning by the court, Defendant confirmed his
desire to assert his Constitutional right to
self-representation in this case. Id. at 6:2-14.
Defendant acknowledged being a citizen of the United States,
denied arguing he was "not in jurisdiction, or nothing
like that," and affirmed he wanted to exercise his
Constitutional right as a United States citizen to represent
himself in court. Id. at 13:17-18, 22:6-14. The
court questioned Defendant regarding his understanding of the
charges and penalties against him, the potential implications
of the sentencing guidelines, and the applicability of the
Federal Rules of Evidence and Federal Rules of Criminal
Procedure in court proceedings. Id. at 14:14-19:21.
Defendant confirmed his understanding and stated he knew the
Constitution and had been studying the Rules of Evidence and
Procedure while incarcerated. Id. The court advised
Defendant of the potential pitfalls of proceeding pro
se, and Defendant indicated he still desired to
represent himself. Id. at 19:22- 20:15.
court finds, based on the statements of Defense counsel,
Defendant's conduct to date in the proceedings, and the
court's colloquy with Defendant, that Defendant has
waived his right to the assistance of counsel and that his
waiver was clear and unequivocal; knowing, intelligent, and
voluntary; timely; and not for an improper purpose.
Jennings, 2019 WL 1338388, at *l. Furthermore, the
court finds that Defendant's pro se filing
[DE-32] is not clear evidence of his intention to flout the
court's jurisdiction. Defendant expressly denied arguing
he was "not in jurisdiction," Hr'g Tr. [DE-34]
22:6-14, which distinguishes the case from
Frazier-El where the defendant repeatedly affirmed
his intent to persist in arguing that the court lacked
jurisdiction over him due to his affiliation with the Moorish
Science Temple, 204 F.3d at 557-58. The court finds little
indication in the record to suggest a desire on
Defendant's part to "manipulate[e] the system"
but rather Defendant has indicated "an unequivocal
desire to invoke his right of self-representation."
Id. at 560. Accordingly, Defendant has waived his
right to counsel and may proceed pro se.
court also finds it appropriate to appoint Defendant's
current counsel to continue in the role of standby counsel.
The Government did not oppose and, in fact, endorsed that
request in the event Defendant was allowed to proceed pro
se. Gov't's Resp. [DE-33] at 12. The court
may "appoint a 'standby counsel' to aid the
accused if and when the accused requests help, and to be
available to represent the accused in the event that
termination of the defendant's self-representation is
necessary." Faretta, 422 U.S. at 834 n.46
(citation omitted). Here, standby counsel shall be generally
limited to a responsive and advisory role. Standby counsel
shall meet with Defendant initially to answer any questions
Defendant may have regarding this proceeding. Thereafter,
standby counsel shall meet upon request by Defendant, as
reasonable, to provide assistance as specifically requested
by Defendant with pretrial matters, which may include, but
are not limited to, assistance with legal research and
obtaining investigatory or other services, and trial
preparation. Additionally, standby counsel shall attend all
hearings at which Defendant appears and attend trial to
assist Defendant in navigating the Federal Rules of Evidence
and Criminal Procedure, as well as courtroom protocol, or
other issues as specifically requested by Defendant or as
directed by the court. However, in the event the case
proceeds to trial, standby counsel may not participate at a
level that would make the jury question whether the pro
se Defendant is actually in charge of his own
defense. McKaskle v. Wiggins, 465 U.S. 168, 187
the court declines to prospectively relieve the Government of
any obligation to respond to "facially frivolous
pleadings." Gov't's Resp. [DE-33] at 12. The
Government should continue in the usual ...