United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, District Judge.
This matter came before the Court on January 28, 2015 for a hearing on Assistant Federal Public Defender Jack Schisler's Second Motion to Withdraw as Attorney and to allow Defendant Doyle D. Smith to proceed pro se (Doc. 47). This Motion is effectively a motion to reconsider the Court's Order (Doc. 45) denying Mr. Schisler's January 21, 2015 Motion to Withdraw (Doc. 44). Based upon a review of said Motions, oral argument of counsel, questioning of Mr. Smith, a review of the docket, pertinent pleadings, and transcripts of hearings conducted on October 15 and 17, 2014, and other matters before the Court, the Court finds that it is proper and in the best interest of justice that Mr. Smith be represented by counsel, and therefore his Second Motion to Withdraw (Doc. 47) is DENIED for the reasons expressed below.
This matter is presently set for trial on February 9, 2015. Mr. Smith is charged in a superseding indictment with one count of obstructing and impeding the due administration of the Internal Revenue laws in violation of 26 U.S.C. § 7212(a), four counts of subscribing a false tax return in violation of 26 U.S.C. § 7206(1), and one count of passing a fictitious obligation purporting to be issued under the authority of the United States in violation of 18 U.S.C. § 514.
Mr. Smith's initial appearance was on July 3, 2014, at which time a Federal Public Defender was appointed and Mr. Smith was released on a $50, 000 secured bond. On July 29, 2014, Mr. Schisler, citing the need for more time to review voluminous documents, moved for a continuance (Doc. 15). The motion was granted and the trial date was moved from August 14, 2014 to September 29, 2014. A second motion to continue was subsequently filed by the Government (Doc. 23) and the trial was reset for October 20, 2014.
On August 11, 2014, Mr. Smith filed a "Notice" (Doc. 17), which the Court treated as a motion to remove Mr. Schisler as counsel and to allow Mr. Smith to proceed pro se.  On August 18, 2014, the Honorable Erin L. Setser, United States Magistrate Judge for the Western District of Arkansas, conducted a Faretta hearing on Mr. Smith's request to proceed pro se. After advising Mr. Smith of the seriousness of the charges and penalties against him, and conducting an inquiry regarding his education; his knowledge of the Federal Rules of Criminal Procedure, the United States Sentencing Guidelines, and local rules; and the dangers and disadvantages of self-representation, Judge Setser granted Mr. Smith's request to represent himself. Faretta v. California, 422 U.S. 806, 835 (1975). Mr. Schisler was appointed as standby counsel. Judge Setser noted that Mr. Smith had already attempted to file a (different) "Notice, " which failed to conform to the Federal Rules and was a frivolous and improper pleading. She cautioned Mr. Smith that the Court reserved the right to reappoint Mr. Schisler if Mr. Smith were to file any further frivolous motions or pleadings. (Doc. 20).
During the time that Mr. Smith represented himself, he took a number of actions that evidenced obstructionist behavior and a failure to conform to the rules expected of pro se litigants. First, he sent a stream of letters to the United States Attorney's office protesting its jurisdiction over him. Second, on October 7, 2014, he filed a civil suit in the Circuit Court of Washington County against Conner Eldridge, the United States Attorney for the Western District of Arkansas, for trespass on his "property." This lawsuit purports to state a cause of action for trespass against the Unites States Attorney as a consequence of the filing of the instant criminal charges against Mr. Smith. Third, in the Court's Pretrial Scheduling Order, as amended (Docs. 8 and 26), the parties were directed to confer on proposed jury instructions and other pretrial matters. Although the Government's counsel mailed Mr. Smith a set of proposed jury instructions, proposed verdict form, and statement of the case, Mr. Smith failed to respond to the Government and otherwise failed to confer. Fourth, the Government's counsel mailed a proposed plea agreement to Mr. Smith. However, knowing that the Pretrial Scheduling Order had a change of plea deadline, Mr. Smith intentionally delayed his response (that he was declining the plea) by addressing the envelope to " RAK, Department of Justice, " instead of properly addressing it to the Government's Counsel, Robert A. Kemins. 
More obstructionist behavior soon followed. On October 15, 2014, Mr. Smith failed to appear at the Pretrial Hearing, which required the Court to adjourn the hearing and issue a bench warrant for his arrest. Upon learning of the warrant, Mr. Smith came to the courthouse and appeared before Judge Setser for a show-cause hearing to determine whether Mr. Smith's bond and pro se status should be revoked. During the show-cause hearing, Mr. Smith admitted to Judge Setser that he was aware of the date set for the Pretrial Hearing, but claimed to be unaware of the specific time or place. Mr. Smith acknowledged that he made no effort to determine the time or place of the hearing, and instead "assumed" that the hearing had been cancelled or rescheduled. Judge Setser determined that Mr. Smith willfully failed to appear, and further, that he had lied to the Court. Judge Setser revoked Mr. Smith's bond, remanded him to the custody of the U.S. Marshall, and appointed Mr. Schisler to take over as attorney of record.
On October 16, 2014, Mr. Schisler filed a Motion Requesting Revocation of Detention Order And Reinstatement of Mr. Smith's Pro Se Status (Doc. 40), in which he sought a de novo review of Judge's Setser's rulings pursuant to 18 U.S.C. Section 3145(b). Prior to and during a hearing the October 17, 2014 Hearing on the Motion, the Court observed that if Mr. Smith were represented by counsel, he would be much more likely to comply with the Court's orders. In response, Mr. Schisler represented that Mr. Smith was willing to consent to Mr. Schisler's representation going forward, and therefore his Motion for Reinstatement of Mr. Smith's pro se status was "moot." The Court directly inquired of Mr. Smith as to whether he was voluntarily waiving his right to represent himself and consenting to representation by Mr. Schisler, to which Mr. Smith responded: " I will allow Mr. Schisler to represent me. I have given him that consent. " Based on these representations, the Court "ratified" Judge Setser's appointment of Mr. Schisler as attorney of record, but noted that such appointment was pursuant to Mr. Smith's consent, and not against his will.
The Court reinstated Mr. Smith's bond with the following caveats: (1) all conditions formerly associated with the bond will be in effect; (2) an additional condition was imposed requiring Mr. Smith to report twice per week to Mr. Schisler, either in person or by telephone, in order to properly assist in his own defense and to keep apprised of relevant deadlines and Court appearances; and (3) Mr. Smith was to have no personal communications with the Government or its attorneys during the pendency of this matter; instead, all communications between Mr. Smith and the Government or its attorneys must be conducted by and through Mr. Schisler until this matter is fully and finally resolved. The Court imposed these bond conditions in order to insure that Mr. Smith cooperate with his counsel; appear on time at scheduled court hearings; and refrain from engaging in obstructionist conduct, including engaging in improper communications with the United States Attorney's office, against whom Mr. Smith has filed a civil lawsuit.
For the next three months the case proceeded without any further problems or issues. Then, on January 21, 2015, two weeks prior to the Final Pretrial Hearing, and with the trial set to commence on February 9, 2015, Mr. Schisler filed a Motion to Withdraw as Attorney (Doc. 44), requesting the Court to reinstate Mr. Smith's pro se status. Mr. Schisler stated that although Mr. Smith had previously consented to being represented by counsel, he had simply changed his mind and now wished to proceed pro se. The Court denied the Motion to Withdraw in its January 23 Order (Doc. 45), citing as grounds much of the discussion above regarding Mr. Smith's prior failure to comply with Court rules. On January 26, 2015, Mr. Schisler filed yet another Motion, this time requesting that the Court reconsider its January 23 Order denying him permission to withdraw. The Court conducted a hearing on January 28, 2015, from which this Order follows.
II. LEGAL STANDARD
While it is well established that the Sixth Amendment grants a defendant the right to self-representation, Faretta, 422 U.S. at 819-20, the right to self-representation is not absolute, Martinez v. Court of Appeal of Cal., 528 U.S. 152, 161 (2000). Once the defendant makes a "clear and unequivocal" request to represent himself, a court may nonetheless deny the request in certain circumstances. United States v. Edelmann, 458 F.3d 791, 808 (8th Cir. 2006). To exercise the right of self-representation, the defendant must first make the request in a timely manner. Id. (citing Martinez, 528 U.S. at 162). Second, the right to self-representation may be denied or terminated "when the defendant engages in serious obstructionist misconduct." Id. (citing United States v. Mosley, 607 F.3d 555, 558 (8th Cir. 2010) (internal citations omitted). See also United States v. Myers, 503 F.3d 676, 681 (8th Cir. 2007). Third, the court can refuse to permit self-representation when the defendant is unable to knowingly and intelligently forgo the traditional benefits associated with right to counsel. Edelmann, 458 F.3d at 808 (citing Faretta, 422 U.S. at 835).
A defendant is not entitled to use the right of self-representation "as a tactic for delay, for disruption, for distortion of the system, or for manipulation of the trial process." Mosley, 607 F.3d at 558 (citing Edelmann, 458 F.3d at 808-09). "[T]he government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer." Martinez, 528 U.S. at 162. See also United States v. Frazier-El, 204 F.3d 553, 559-60 (4th Cir.2000) (affirming district court's denial of request for self-representation when defendant maintained that he was not subject to court's jurisdiction). That a defendant is ...