Opinion
20-29
02-22-2022
UNITED STATES OF AMERICA v. DENNIS HAIRSTON
Daniel Hairston, pro se Corey P. Pollard, pro se
Daniel Hairston, pro se
Corey P. Pollard, pro se
MEMORANDUM ORDER
Marilyn J. Horan, United States District Judge
Following a hearing on February 17, 2022, the Court deemed Defendant Dennis Hairston to have waived his right to counsel and asserted his right to represent himself by his conduct and appointed Patrick K. Nightingale as standby counsel. This Order explains the reasons for appointing standby counsel and addresses several of Defendant's filings and statements made in open Court.
I. Arraignment
Defendant Dennis Hairston is named as one of three Defendants in a two-count Superseding Indictment filed May 26, 2021, charging him with one count of Conspiracy in violation of 18 U.S.C. § 371 and one count of Interstate Transportation of Stolen Vehicles in violation of 18 U.S.C. §§ 2 and 2312. ECF No. 123. Defendant's initial appearance and arraignment were held on November 10, 2021, before Magistrate Judge Lisa Pupo Lenihan. Patrick K. Nightingale was appointed as counsel for Defendant. ECF No. 196. At his arraignment, Judge Lenihan noted that Defnedat “refused to consent to the Court's jurisdiction in any circumstance.” ECF No. 198. Judge Lenihan's statement occurred in the context of Defendant refusing to either consent or object to the proceedings being held by video. Id. A not guilty plea was entered on behalf of Defendant, without his approval. ECF No. 200. Defendant also refused to certify that he had been notified of when pretrial motions must be filed. ECF No. 201. On the Certification form, Judge Lenihan stated: “Defendant refused counsel. He refused to participate in the hearing. “ Id.
II. Hearings Before the District Court
On December 14, 2021, this Court held a status conference at which Defendant, Attorney Nightingale, and Assistant United States Attorney Robert Cessar appeared. ECF No. 213. Defendant refused to permit Mr. Nightingale to speak for him. Soon after the proceedings began, Mr. Hairston rose and began to make a statement. The Court halted the proceedings to inform Mr. Hairston that before he speaks, he will be sworn and that at the proper time he would be afforded the opportunity to speak in open court and on the record. Mr. Hairston was sworn, and thereafter refused to cease talking. The Court repeatedly informed Mr. Hairston that he would be permitted to speak after the Court spoke first. He continued to speak over the Court. The Court asked Mr. Hairston if he had read the charges against him, to which Mr. Hairston stated, “no.” He then stated that the Court did not have jurisdiction over him and began to explain that he was not proceeding pro se but was making a “special appearance” by proceeding in propria persona. Mr. Hairston continued to speak despite the Court warning him that he may be held in contempt. The conduct continued to the point that it was impossible to continue the hearing because the Court Reporter was unable to transcribe while both the Court and Mr. Hairston were speaking. The conference was therefore adjourned.
Thereafter, the Court, citing the events at the hearing, ordered Defendant to appear on January 27, 2022 and show cause why he should not be held in contempt of Court for his actions on December 14, 2021. Order, Dec. 14 2021, ECF No. 214. The hearing was continued to February 17, 2022. Present at the February 17, 2022 hearing were Defendant, Attorney Nightingale, and Assistant United States Attorney Cessar. The Court began the hearing by explaining that the issue of representation would be addressed first. By reference to the conduct that occurred at the December 14, 2021 hearing, the Court explained that if such conduct occurred at the present hearing, the hearing would be adjourned, Defendant would be removed to the United States Marshal's facility and a video link would be established to continue the hearing.
The Court then asked Mr. Nightingale to speak to the matter of representation. Mr. Nightingale explained that he had just had a conversation with Defendant and Defendant did not want him to represent him and did not want him to take any action on behalf of Defendant. Therefore, the Court began to explain to Defendant his Sixth Amendment rights and that the Court would be asking him a series of questions to ensure that he understood the risks of representing himself. As he did during the December 14, 2021 hearing, Defendant began speaking and requested that he be permitted to make a statement. Foremost for Defendant was his assertion that this Court has no jurisdiction in this matter. The Court again explained to Defendant that he would be permitted to make a statement or speak on any matter after the Court first conducted a colloquy with him regarding his right to legal counsel and his right to choose to represent himself. The Deputy Clerk attempted to administer oath to the Defendant, but Defendant refused to acknowledge that he was being asked to be sworn and continued speaking. Eventually, the proceeding was adjourned, the Defendant was taken to the United States Marshal's facility, and a video link was established.
At the beginning of the video link proceeding, Defendant again refused to acknowledge that he was being asked to take the oath and continued to question the Courts jurisdiction. Defendant asserted that the jurisdiction of this Court has never been established despite his repeatedly asking for proof of jurisdiction. He stated that the Court's conduct in wanting to conduct a colloquy with Defendant was an attempt to intimidate him. The Court deemed that Defendant was waiving his right to counsel and asserting his right to represent himself by his conduct. The Court then cautioned Defendant on the dangers of representing himself. Defendant continued to speak over the Court.
The Court finds that Defendant has waived his right to counsel based upon the following. Defendant has repeatedly and consistently refused to be represented by appointed counsel. He refused representation at his arraignment and continued to refuse representation in proceedings before this Court. He has told appointed counsel that he does not want him to act or speak on his behalf at all. During both the December 2021 and February 2022 hearings, Defendant was uncooperative, refused to answer questions posed by the Court, and used every opportunity to speak on matters, such as jurisdiction, that were not before the Court. Defendant refused to engage with the Court's attempts to determine if he was knowingly and voluntarily waiving his right to counsel and he refused to give any indication in response to what the Court was saying regarding the risk of self-representation Defendant has also submitted two filings in which he states that he is proceeding “by Special Appearance, in Propria Persona, proceeding Sui Juris.” ECF Nos. 148 & 151-1. Such terms are consistent with self-representation. Accordingly, the Court finds that Defendant is asserting his right to represent himself.
The Court stated at the hearing that Attorney Nightingale would be appointed as standby counsel. Due to Defendant's conduct, the Court was unable to fully explain the role of standby counsel, and thus does so here. Standby counsel is appointed as an aide to the smooth and efficient administration of justice and to facilitate a speedy and efficient trial. To further such goals, standby counsel is appointed as an attorney who is present in the courtroom, and who will follow the evidence and proceedings. Standby counsel will assist the Defendant in procedural matters he may be unfamiliar with, but only if the Defendant wants counsel's assistance. Importantly, for the Court and the public, standby counsel “stands by” in the event the Court determines during the trial, or at any hearing, that the Defendant can no longer be permitted to represent himself, or, if it is necessary, that he must be removed from the courtroom because of disruptive tactics, so that the hearing or trial may proceed in an orderly manner. Thomas v. Carroll, 581 F.3d 118, 125 (3d Cir. 2009) (“the Supreme Court also explained that ‘the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.'”) (quoting Faretta v. California, 422 U.S. 806, 834 n. 46 (1975).
Standby counsel is not appointed to speak on behalf of the Defendant or to limit the Defendant's opportunity to speak for himself. Standby counsel is “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.” Id. Standby counsel is not permitted “to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance.” McKaskle v. Wiggins, 465 U.S. 168, 174 (1984). “The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.” Id. Thus, a defendant exercising his right to self-representation “is entitled to preserve actual control over the case he chooses to present to the jury.” Id.
The Court also reiterates to Defendant some of the risks of self -representation. In general, there is a risk that the Defendant will represent himself without a familiarity or understanding of the Federal Rules of Criminal Procedure or the Federal Rules of Evidence. The Defendant may not be aware of what defenses there might be to the offenses and may be unfamiliar with the possible penalties he may face. Defendant is not familiar with the law, not familiar with court procedure, and not familiar with the rules of evidence. In all instances, the Court may not advise the Defendant as to applicable Rules or on how he should try his case. The Court thinks it is unwise of the Defendant to try to represent himself. At this time, the Court again advises Defendant that in the Court's opinion a trained lawyer would defend the Defendant far better than Defendant could defend himself.
III. This Court has Jurisdiction
In Court and in his filings, Defendant's primary complaint is an assertion that the Court does not have jurisdiction over this matter and that the Court has failed to establish that jurisdiction is proper. He stated, in one form or another, that no one had responded to his complaint that the Court lacks jurisdiction. In fact, this Court has responded both orally and in writing. At the December 14, 2021 hearing the Court orally informed Defendant that this Court has jurisdiction in this matter. Following that hearing, the Court issued an Order in explaining that it does have jurisdiction:
this Court properly has jurisdiction over Defendant and that the charges alleged against him in the Superseding Indictment are proper. Therefore, even if Defendant disagrees with the Court's finding, there will be a resolution of this case as asserted against this Defendant. If there is an appeal, it will be the United States Court of Appeals for the Third Circuit that will decide if the Court's rulings are right or wrong. The Court rejects any challenge that the Court and the United States are not legitimate and have no authority over Defendant. The Court will not permit Defendant to repeatedly raise the same
frivolous challenges, or otherwise delay the trial by raising frivolous issues, either by his conduct or through his pleadings.ECF No. 214, at 4. The fact that the Court had addressed Defendant's jurisdictional challenges in Court on December 14, 2021, and in an Order dated that same date raises the implication that this Defendant has chosen to ignore or disregard the contents of the Court's December 14, 2021 Order. The Court urges Defendant to read every filing in this case, especially since he is representing himself. With respect to the Defendant's jurisdictional challenge, the Court emphasizes that as a matter of law, because the Defendant is charged with violations of federal law, “the Court has jurisdiction under Article III of the U.S. Constitution and 18 U.S.C. § 3231 (‘The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.').” United v. Rock, No. 2:21-CR-00358-CCW-4, 2022 WL 486313, at *3 (W.D. Pa. Feb. 17, 2022). Similar claims that District Courts lack jurisdiction over a federal indictment are consistently rejected as meritless. United States v. Taylor, 21 F.4th 94, 102 (3d Cir. 2021) (‘sovereign citizens' arguments, including challenges to jurisdiction, are frivolous); United States v. Young, 735 Fed.Appx. 793, 795-96 (3d Cir. 2018) (District Court had jurisdiction to adjudicate this criminal action under 18 U.S.C. § 3231); Henry v. Fernandez-Rundle, 773 Fed.Appx. 596, 597 (11th Cir. 2019); United States v. Sterling, 738 F.3d 228, 233 n.1 (11th Cir. 2013) (courts summarily reject legal theories arguing that the court lacks jurisdiction over them as frivolous; United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (“Regardless of an individual's claimed status of descent, be it as a “sovereign citizen, ” a “secured-party creditor, ” or a “flesh-and-blood human being, ” that person is not beyond the jurisdiction of the courts.); and United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) (argument that defendant is not subject to the jurisdiction of the federal courts “has no conceivable validity in American law”).
Such willful blindness may in fact be an explicit strategy. In United States v. Benabe, the Circuit Court recounted the history of two defendants who repeatedly raised frivolous legal theories to which the District Court responded. Similar to the instant case, the District Court had repeatedly ruled on defendant's jurisdictional argument and issued an Opinion on the subject directing defense counsel to provide the Opinion to their clients for them to read. In open Court, the District Court inquired of each defendant as to whether they had read the Opinion. One defendant refused to say whether he had read the Court's Opinion while the other outright refused to read the Opinion when given the opportunity. 654 F.3d 753, 767 (7th Cir. 2011).
AND NOW, this 22nd day of February 2022, it is hereby ORDERED that upon Defendant Dennis Hairston's waiver of his right to counsel and assertion of his right to represent himself, and the Court's colloquy upon such waiver, which Dennis Hairston refused to participate in, Defendant Dennis Hairston is permitted to represent himself in this matter.
Attorney Patrick K. Nightingale is appointed as standby counsel for Dennis Hairston, pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A. This appointment is effective February 17, 2022.
The Court hereby give Notice to Dennis Hairston that pretrial motions must be filed by April 26, 2022, unless extended by the Court upon motion.