Opinion
CASE NO. 8:02CR353
October 29, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the following motions filed by the Defendant, Erroll Flynn Shepard: motion for dismissal due to violations of due process and constitutional rights, and civil rights (Filing Nos. 156, 161); motion to surrender copies of warrant, summons detainers (Filing No. 157); motion for defendant to be moved to a facility with a law library (Filing No. 158); motion to continue (Filing No. 159); motion for pretrial services (Filing Nos. 160, 164); motion for paralegal (Filing No. 165); motion for an investigator (Filing No. 166); motion for psychiatric evaluation (Filing No. 167); motion for intensive drug treatment program (Filing No. 168); and motion for indigent funds (Filing No. 169). A certificate of service was filed, apparently indicating that service on the Assistant United States Attorney was accomplished through the electronic filing of the motions. (Filing No. 162.) None of the motions included a request for an evidentiary hearing.
On October 20, 2003, the motion to withdraw filed by Shepard's third attorney was granted. Shepard now represents himself in this matter, with W. Russell Bowie appointed as standby counsel. (Filing No. 153.)
The Clerk received the original motion and a copy, and both the original and the copy were filed.
The Clerk received the original motion and a copy, and both the original and the copy were filed.
The motions for paralegal (Filing No. 165), an investigator (Filing No. 166), for psychiatric evaluation (Filing No. 167), for intensive drug treatment program (Filing No. 168), and for indigent funds (Filing No. 169) were labeled "ex parte." However, no brief in support of the "ex parte" request as required by ¶ 6 or any request to seal the motions was filed. Nevertheless, the Court carefully examined the motions and determined that they need not be sealed.
PROCEDURAL BACKGROUND
On October 24, 2002, Shepard was charged in a one-count Indictment, together with five codefendants, with conspiring to distribute and possess with intent to distribute 50 grams or more of a mixture or substance containing cocaine bas, i.e., crack cocaine. (Filing No. 1.) On February 26, 2003, Shepard was charged with violating a federal term of supervised release imposed as a result of a Colorado drug conviction. Shepard was imprisoned in Los Angeles as a result of the supervised release violation.
On the basis of the instant Indictment, on April 30, 2003, Shepard was arrested and appeared before Magistrate Judge Robert N. Block in the United States District Court for the Central District of California pursuant to Federal Rule of Criminal Procedure 40. (Filing No. 97.) At Shepard's initial appearance, he was advised of his right to remove the case for a plea and sentencing pursuant to Federal Rule of Criminal Procedure 20, and he was appointed a federal public defender. (Filing No. 97.) Magistrate Judge Block granted the government's motion for detention, detaining Shepard "permanently" based on several detailed factors indicating that Shepard presented both a flight and a danger to the community under the Bail Reform Act, 18 U.S.C. § 3142(c). (Filing Nos. 93, 97.) An identity hearing was scheduled for May 8, 2003 and then continued to May 22, 2003. (Filing Nos. 99, 100.) Judge Block granted Shepard's motion to represent himself, appointing his federal public defender as advisory counsel. (Filing No. 100.) The court denied Shepard's motion for a stay. (Filing No. 103.) Judge Block ordered the Metropolitan Detention Center in Los Angeles, California to allow Shepard four hours' library access before his identity hearing. (Filing No. 95.)
Although the ruling regarding the stay was given orally at the May 8, 2003, hearing, the order was not noted in the court's minutes until May 22, 2003. (Filing No. 103.)
On May 22, 2003, because Shepard stated that despite Judge Blocks's previous order he had not been granted access to the jail's law library, the court continued the identity hearing to May 30, 2003. Judge Block also: denied Shepard's oral motion to dismiss and his request for a copy of the "Interstate Agreement"; and ordered that Shepard be allowed use of the law library to prepare for the upcoming hearing. (Filing No. 103.) Due to scheduling difficulties, and upon the parties' stipulation the identity hearing was held on June 3, 2003. The court found that Shepard was the person charged in the Indictment, ordering the U.S. Marshal to return Shepard to the District of Nebraska "forthwith." (Filing No. 107.)
Shepard's advisory counsel signed the stipulation in his behalf, agreeing that the hearing could be continued to June 3, 2003. (Filing No. 105.)
On June 20, 2003, Shepard appeared in this District before the Honorable F.A. Gossett. Glenn A. Shapiro was appointed as defense counsel. Shepard pleaded not guilty to the charge and waived his detention hearing. (Filing No. 110.) The Court granted Shepard's motion to continue his pretrial motion deadline by thirty days. (Filing No. 114.) The motion was supported by a signed speedy trial affidavit. (Filing No. 113, attachment.) On August 6, 2003, Glenn Shapiro was deemed withdrawn, and Mark Weber was appointed as defense counsel. (Filing No. 126.) On September 3, 2003, Weber withdrew as counsel for Shepard due to a conflict of interest, and W. Russell Bowie was appointed. (Filing No. 133.) On September 22, 2003, Bowie moved to withdraw because Shepard wished to exercise his right to self-representation. (Filing Nos. 139, 140.) On the same date, Shepard filed a pro se declaration stating that he had told each counsel that he would exercise his right to represent himself and complaining that each time new counsel was appointed his pretrial motion deadline was extended, resulting in additional excluded time under the Speedy Trial Act. (Filing No. 141.) After two hearings, Judge Gossett granted Bowie's motion to withdraw, appointing Bowie as standby counsel allowing Shepard motion to represent himself. (Filing Nos. 148, 150, 153.) Judge Gossett also granted the Defendant's motion to extent the pretrial motion deadline filed by Bowie in Shepard's behalf, scheduling the new deadline for November 14, 2003. (Filing Nos. 145, 153.)
Shapiro was suspended from the practice of law in this State for a period of sixty days. State ex rel. Special Counsel for Discipline v. Shapiro, 665 N.W.2d 615 (Neb. 2003).
The motion did not include a signed speedy trial waiver. Rather, the motion cited the "ends of justice" language of the Speedy Trial Act. 18 U.S.C. § 3161(h)(8)(A). (Filing No. 144.) The motion to continue was granted based on 18 U.S.C. § 3161(h)(8)(A) (B). (Filing Nos. 145, 153.)
The current motion deadline is November 14, 2003. On October 22 and 23, 2003, Shepard filed the motions now before the Court.
DISCUSSION
Motion for Dismissal (Filing Nos. 156, 161)Shepard argues that he has suffered the deprivation of his due process and other constitutional rights. He also argues generally that his rights under the Interstate Agreement on Detainers Act were violated. Through examining Shepard's other motions, it is clear that he desires additional time to attempt to obtain evidence and to brief the issues raised.
The Court advises Shepard to discuss the difficult issues raised in the motion with his standby counsel. If Shepard then wishes to withdraw any issues from the Court's consideration, Shepard shall file a notice of withdrawal of any issues withdrawn. If Shepard desires to continue to contest all or some of the issues raised, he should request appropriate assistance of his standby counsel. In view of the obvious difficulties faced by Shepard and the potentially difficult issues raised, Shepard may have until November 14, 2003, the current pretrial motion deadline, to submit a brief in support of the motion to dismiss. Pursuant to the progression order (Filing No. 111) and the federal and local rules of procedure, the government will then have five (5) business days plus three (3) days mailing time to respond, or until November 24, 2003. If the government chooses not to respond, the Assistant United States Attorney shall file as soon as possible a pleading stating that no response will be filed. The parties are advised that it is highly unlikely that these deadlines will be continued. Pending the receipt of the parties' briefs, the motion to dismiss will be held in abeyance. Motion for Copies (Filing No. 157)
Attached to Shepard's motion is an unsworn "Declaration" supporting his request for copies of his "arrest warrant, summons, detainer, and request approved by the governor of the sending state." (Filing No. 157 and Attachment.) Shepard complains that Magistrate Judge Block in the Central District of California declined to provide the requested documents.
Shepard has made no showing that he has discussed this issue with or attempted to obtain the requested documents through his court-appointed standby counsel. Shepard is encouraged to work with standby counsel in his reasonable attempts to obtain evidence, as the Court will not assist him in this task. Therefore, the motion for copies will be denied.
Motion for Placement in Facility With a Law Library (Filing No. 158)
Shepard requests that he be moved from the Douglas County Correctional Facility in Omaha, Nebraska to a facility with a "sufficient" law library to fulfill the needs of a pro se litigant. For his purposes, Shepard defines a "sufficient" law library as one that includes the following:
a copy machine, federal case law and case law in general, more than just a once a week attendance, more than just a half an hour usage, equipped with listings of experts, listings of investigators, type writers, carbon paper, proof of service slips, tape player, televisions equipped with video viewing, and an environment that the defendant can secure his work product so that nothing is lost or tampered with.
(Filing No. 158.)
The required analysis begins with Faretta v. California, 422 U.S. 806 (1975), in which the Supreme Court held that a criminal defendant has the right of self-representation upon a knowing and intelligent waiver of the right to counsel. Id. at 835. Then, albeit in the civil context, in Bounds v. Smith, 430 U.S. 817 (1977) the Supreme Court held that the "fundamental constitutional right of access to the courts" requires prison authorities to assist inmates in preparing and filing legal papers by providing them with adequate law libraries or assistance from persons with legal training. Id. at 828.
In a somewhat factually similar case, after finding that the district court engaged in an adequate Faretta inquiry, the Eighth Circuit Court of Appeals stated:
Kind rejected society's most fundamental guarantee of a fair trial — the services of appointed counsel and all the resources at counsel's command to prepare and implement the best possible trial defense. After Kind was permitted to represent himself, he complained to the district court about limited access to legal materials at the state institutions where he was being detained. The court offered the assistance of stand-by counsel, and there is nothing in the record suggesting that stand-by counsel refused to assist Kind in his preparation for trial. The record shows that, while Kind was incarcerated in several state facilities prior to trial, he had access to legal materials in at least two of those locations.
Kind has totally failed to show that his defense at trial was prejudiced by any lack of legal materials. We have serious doubts whether a pretrial detainee who exercises his constitutional right to represent himself at trial thereby becomes entitled to legal resources over and above what are provided to the general inmate population. But in any event, it is clear that the district court carefully protected Kind's right to a fair trial after he foolishly decided to represent himself. The right to due process requires no more.United States v. Kind, 194 F.3d 900, 905 (8th Cir. 1999).
In another case, the Eighth Circuit determined that a criminal defendant was not denied due process because none of the facilities in which he was held as a pretrial detainee had a law library and where the defendant was not taken to an outside law library. United States v. West, 557 F.2d 151, 152 (8th Cir. 1977). West, who elected to represent himself, had standby counsel who visited him, assisted him with research, and brought him copies of two cases. For these and other reasons, the Eighth Circuit held that the fundamental right of access to the courts requiring prison authorities to assist inmates in preparing and filing pleadings and providing the inmates with adequate law libraries or persons trained in the law was satisfied. Id. at 153 (citing Bounds, 430 U.S. at 828).
Turning to Shepard's situation, through an unfortunate set of circumstances, the Court is well aware that Shepard had three attorneys during the early stages of his case. Nevertheless, all are highly competent and very well versed in the law. W. Russell Bowie now is available to Shepard on a standby basis. There is no indication that Bowie has refused to assist Shepard with any reasonable research requests or in other ways relating to Shepard's defense. The record reflects that Bowie is available to assist Shepard on an as-needed basis. After two hearings before Judge Gossett and a thorough Faretta inquiry, Shepard elected not to avail himself of the extensive services available to him through full representation by experienced appointed counsel. Shepard requests not just a law library, but rather a combination of elaborate tools that are likely not available in any jail or prison setting. Shepard's due process and Sixth Amendment rights, as well as his fundamental right to a fair trial, have been well protected. He is not entitled to more assistance than he is already receiving.
For these reasons, the motion for placement in a facility with a law library will be denied.
Motion to Continue (Filing No. 159)
Shepard requests a thirty-day continuance to file additional pretrial motions. He bases his motion on the lack of a law library in his jail setting. Shepard did not include a signed speedy trial affidavit with his motion.
The motion to continue the pretrial motion deadline will be denied, and the deadline remains November 14, 2003.
Motions for Pretrial Services (Filing Nos. 160, 164) and Intense Drug Treatment Program (Filing No. 168)
Because the statutory term of imprisonment for the charged offense ranges from ten years to life imprisonment under 21 U.S.C. § 841(b)(1), the "drug presumption" under the Bail Reform Act applies. 18 U.S.C. § 3142(e)(1) (f)(1)(B) (C). That is, a rebuttable presumption exists that no condition or combination of conditions will reasonably assure either Shepard's presence for future Nebraska court proceedings or the safety of the community. 18 U.S.C. § 3142(e). In determining whether reasonable conditions exists that would reasonably assure Shepard's future presence and the safety of the community, the factors that must be considered include: the nature and circumstances of the charged offense; the weight of the evidence against Shepard; Shepard's history and characteristics, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the Omaha, Nebraska area, ties to this community, past conduct, history of drug or alcohol abuse, criminal history, record concerning appearance in court, whether Shepard was on probation or other release when the instant offense was allegedly committed, and the seriousness of any danger to any individual or the community that would exist if Shepard were released. 18 U.S.C. § 3142(g).
Applying these standards, the Court notes its receipt and careful review of Shepard's Pretrial Services Report prepared in the Central District of California. Shepard declined to be interviewed by California U.S. Pretrial Services. The Court is without significant information regarding Shepard's past. A brief analysis, given the factors listed in § 3142(g), indicates the following: the instant serious felony drug charge involving a conspiracy to distribute or possess with intent to distribute a significant amount of crack cocaine; no information about physical or mental health, family ties, residence, ties, history relating to any drug or alcohol use other than the information that Shepard reported in his unsworn Declaration; a significant criminal history in terms of length, seriousness, and nature of charges and convictions, including a striking number of crimes of violence and crimes involving firearms and drugs; and Shepard's status as a supervisee under a term of federal supervised release at the time of the alleged offense.
Shepard complains that this Court relied on a pretrial services report prepared in California on April 30, 2003. This practice is not unusual and results in a conservation of judicial resources. Shepard requests long-term inpatient drug treatment as a condition of release. The only evidence Shepard offers in support of his request is an unsworn "Declaration" which states generally that he: has a history of drug use; was in "several" short-term drug treatment programs; and now desires long-term inpatient treatment. (Filing No. 168, attachment.) Shepard refused to be interviewed by Pretrial Services in California, and therefore any information about past drug treatment was not obtained and could not be verified. Shepard's criminal history began in 1978 and includes convictions and charges of crimes of violence and crimes involving drugs and firearms. Many of the convictions and charges are felonies.
Moreover, there exists a serious lack of inpatient drug treatment care currently available to pretrial detainees without cost. Shepard has provided no assurance that he could pay for appropriate treatment. The Court is without any financial information other than that submitted in support of Shepard's request for appointed counsel.
In light of the application of the presumption under § 3142(e), the lack of pertinent information, the meager information that is available to the Court, and Shepard's criminal history, the Court finds that Shepard has not satisfied his difficult burden of overcoming the presumption that co condition or combination of conditions exist that would reasonable assure his appearance at Nebraska court proceedings or the safety of the community. Therefore, the motions for pretrial services and intense drug treatment program will be denied.
Motion for Paralegal (Filing No. 165)
There has been no showing that Shepard has enlisted the assistance of his standby court-appointed counsel. Cf. United States v. Willson, No. 02-1805, 2003 WL 1840864, at **1 (8th Cir. Apr. 10, 2003) (affirming the district court's denial of funds for an investigator because the pro se defendant had not enlisted the aid of his standby counsel). Additionally, Shepard has made no showing as to the necessity of such services or that such services cannot be performed by his standby counsel. United States v. Kasto, 584 F.2d 268, 273 (8th Cir. 1978). Rather, Shepard reasons that he is entitled to such services solely because he is proceeding pro se and is indigent.
Therefore, the Court exercises its discretion and denies the request for expert investigative services.
Motion for an Investigator (Filing No. 166)
In analyzing a request for expert services in the form of an investigator, the Court must consider whether Shepard has demonstrated a reasonable probability that such an expert would aid in his defense and that denial of funding would result in an unfair trial. Shepard must do more than simply allege the services would be helpful. Rather, he is required to show that such services are "'necessary'" to allow him ""'an adequate opportunity to present [his] claims fairly within the adversary system."'" United States v. Ross, 210 F.3d 916, 921 (8th Cir. 2000) (quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (quoting Ross v. Moffitt, 417 U.S. 600, 612 (1974))). The decision whether to fund an expert request is within the Court's discretion.
Shepard failed to meet his burden of showing a reasonable probability that an investigator would help his defense and that denial of funds for investigative services would result in an unfair trial. Moreover, there has been no showing that Shepard has enlisted the assistance of his standby court-appointed counsel for this purpose or that his standby counsel is unable to assist with reasonable investigative requests. Willson, 2003 WL 1840864, at **1; Kasto, 584 F.2d at 273. Therefore, in its discretion the Court denies the request for expert investigative services.
Motion for Psychiatric Evaluation (Filing No. 167)
The motion is supported by an unsworn Declaration. (Filing No. 167, Attachment.) Shepard requests a psychiatric examination to determine whether he is competent to assist in his own defense.
Upon the filing of such a motion, the Court has discretion to grant the motion or order a hearing on the motion, "if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241(a).
Shepard is no stranger to federal or state courts. He was convicted in another district of a drug crime and sentenced to sixty months imprisonment and three years supervised release. He violated his supervised release and therefore served an additional period of imprisonment. Shepard represented to the Court that he represented himself in a felony jury case in the State of California, and that he was found not guilty of all charges.
In this case, after two hearings and a careful inquiry, Judge Gossett was satisfied that Shepard understands the nature of the instant charges and penalties. Judge Gossett determined that Shepard has the ability to freely, voluntarily and knowingly waive the very important right to counsel. Now Shepard wishes to "have it both ways," i.e. maintain that he has the required ability to waive his right to counsel yet argue that he suffers from a mental disease that renders him mentally incompetent and unable to assist in his defense. Shepard has filed numerous pretrial motions in his own behalf, and he continues to do so. Although all or most of the motions considered up until this date might not have firm legal bases, they are neatly and articulately drafted.
The Court has no prior psychological or psychiatric information regarding Shepard. Shepard appears at least as well versed in his constitutional rights as any average adult citizen. The Court has no information that would establish reasonable cause to believe that Shepard might suffer from a mental disease rendering him unable to understand the nature and consequences of the proceedings against him or to assist in his defense. Therefore, the Court exercises its discretion and denies both a hearing on the motion for a psychiatric evaluation and the motion itself.
Motion for Indigent Funds (Filing No. 169)
Shepard requests "indigent funds" as follows" enough funds to prepare for an affective defense . . . for the copying of legal materials, filing fee of various writs and papers, stamps, envelopes, and whatever necessary cost that's needed for pro se litigant prisoners." (Filing No. 169.) No specific amount has been suggested.
Shepard asks the Court to provide an unknown sum of money generally for the purpose of defending himself. Most, and probably all, of the services mentioned can be performed by standby counsel at Shepard's request. The motion for indigent funds is denied.
CONCLUSION
Shepard's motion for dismissal due to violations of due process and constitutional rights, and civil rights (Filing No. 156) will be held in abeyance pending the filing of the parties' briefs. Otherwise, after careful consideration Shepard's motions are denied.
Additionally, the Court advises Shepard that a pro se litigant is required to follow the Local Rules for the District of Nebraska and the Federal Rules of Criminal Procedure. NELR 3.4(b). Shepard has available to him the services of an excellent and experienced court-appointed standby counsel. Shepard may "elevate" his standby counsel to lead counsel at any time during these proceedings. United States v. Swinney, 970 F.2d 494, 498 (8th Cir. 1992). Shepard has chosen to reject "society's most fundamental guarantee of a fair trial — the services of appointed counsel and all the resources at counsel's command to prepare and implement the best possible trial defense." Kind, 194 F.3d at 905 (concluding on direct appeal that, as a pretrial detainee, the defendant was not denied due process by being provided with adequate legal resources to prepare his defense). The Court suggests to Shepard that he carefully reconsider his decision to proceed pro se and avail himself of the many services available to him through counsel. Alternatively, if Shepard continues on a pro se basis the Court strongly advises Shepard to request standby counsel for assistance and to abide by all applicable procedural rules.
IT IS ORDERED:
1. The Defendant is allowed until November 14, 2003, to cause to be received by the Clerk of the Court for filing a brief in support of his motion for dismissal due to violations of due process and constitutional rights, and civil rights (Filing No. 156). The government will then have until November 24, 2003 to respond. The motion (Filing No. 156) is held in abeyance pending the receipt of the parties' briefs;
2. The following motions are denied: motion to surrender copies of warrant, summons detainers (Filing No. 157); motion for defendant to be moved to a facility with a law library (Filing No. 158); motion to continue (Filing No. 159); motion for pretrial services (Filing Nos. 160); motion for paralegal (Filing No. 165); motion for an investigator (Filing No. 166); motion for psychiatric evaluation (Filing No. 167); motion for intensive drug treatment program (Filing No. 168); and motion for indigent funds (Filing No. 169);
3. The motion for dismissal due to violations of due process and constitutional rights, and civil rights (Filing No. 161) and the motion for pretrial services (Filing No. 164) are duplicative and denied as moot.