United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT
a hearing on March 25, 2019, the court considered Mr.
Thompson's Pro Se Motion for Appointment of New Counsel
or in the Alternative to Proceed Pro Se (Doc. 1324). The
court also asked Mr. Thompson about Doc. 1327, his Pro Se
Motion To Exercise [His] Constitutional Right Under
Faretta v. California To Proceed Pro Se. When asked
about the somewhat inconsistent requests made by Docs. 1327
and 1324, Mr. Thompson responded that he had decided he
wished to proceed pro se. The court advised Mr. Thompson that
it was not prepared to hear his request to proceed pro se or
conduct a colloquy to determine whether any waiver of his
right to counsel was informed, knowing, and purely voluntary.
See Maynard v. Boone, 468 F.3d 665, 676 (10th Cir.
2006) (“[S]ince the right to counsel is also
constitutionally guaranteed, a defendant may waive the right
to counsel only if the waiver is knowing, intelligent, and
voluntary.”). The court directed Mr. Thompson to think
carefully about whether he wanted to proceed pro se and set
the case for another hearing on April 1, 2019.
hearing on April 1, Mr. Thompson advised the court that he
had reflected on his options and confirmed that he still
wished to exercise his constitutional right to represent
himself. The court then conducted an extensive colloquy with
Mr. Thompson. After hearing Mr. Thompson's answers, the
court found that Mr. Thompson had made a knowing, informed,
and purely voluntary decision to waive his right to counsel
and represent himself during the post-remand, motion-practice
phase of his case. Based on its interactions with Mr.
Thompson, the court concludes that Mr. Thompson possesses the
mental capacity to organize, prepare, and present the content
of his defense on the issue remanded to the court by the
Tenth Circuit. But, as the court advised Mr. Thompson during
the April 1, 2019 hearing, the court's findings do not
imply that Mr. Thompson will discharge those functions as
ably as his then-appointed counsel, Kari Schmidt (or some
other replacement counsel), would discharge them. In fact,
the court holds significant reservations about Mr.
Thompson's decision to represent himself and informed him
of these concerns during the April 1 hearing. Mr. Thompson,
nonetheless, chose to invoke his constitutional right of
Mr. Thompson has exercised his right to represent himself,
the court terminated defense counsel Ms. Schmidt's
appointment as Mr. Thompson's counsel of record. But,
concluding that access to advice from a formally educated and
experienced defense counsel will benefit Mr. Thompson, the
court appointed Ms. Schmidt as Mr. Thompson's standby
counsel. To make it clear, Ms. Schmidt's appointment as
standby counsel does not impose the duties held by counsel of
record in a criminal case. Having chosen to represent
himself, Mr. Thompson controls his case, and he likewise
controls the extent of Ms. Schmidt's participation.
Proceeding pro se, Mr. Thompson controls the arguments he
chooses to make and chooses not to make. Ms. Schmidt will
remain available to consult with Mr. Thompson on such
subjects, issues, or questions as he chooses to ask her
about. See generally United States v. McDermott, 64
F.3d 1448, 1454 (10th Cir. 1995) (“[T]he pro se
defendant is entitled to preserve actual control over the
case he chooses to present to the jury. This is the core of
the Faretta right. If standby counsel's
participation over the defendant's objection effectively
allows counsel 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, the
Faretta right is eroded.”) (quoting
McKaskle v. Wiggins, 465 U.S. 168, 178 (1984))
(emphasis added in McDermott). And the court advised
Mr. Thompson it is incumbent on him to initiate communication
with Ms. Schmidt, should he desire her consultation.
court directs the Clerk of the Court to modify the CM/ECF
docket to show Ms. Schmidt's withdrawal as counsel of
record for Mr. Thompson but to show, also, that she now
functions as Mr. Thompson's standby counsel. The court
also directs the clerk to take any necessary actions to
ensure that Ms. Schmidt, in her role as standby counsel,
continues to receive CM/ECF notifications of any filings in
the colloquy with Mr. Thompson and the announcement of the
finding that he was of sound mind to represent himself, the
court asked Mr. Thompson which filing or filings he wanted
the court to consider in this post-remand phase of his case.
Mr. Thompson informed the court that he did not want the
court to consider the arguments made in Doc. 1328 (his pro se
filing made on March 12, 2019, entitled “Request To
Vacate Mr. Thompson's Conviction or In the Alternative
Grant a New Trial”) and Doc. 1330 (filed by Ms. Schmidt
on March 4, 2019, while still serving as his counsel of
record, and titled “Defendant Thompson's Response
to Government's Memorandum of Law on Impact of
Carpenter  on Defendants' Convictions and
Sentences”). Because the Clerk had docketed Doc. 1328
as a motion, the court, consistent with Mr. Thompson's
instructions, directs the Clerk to deny Doc. 1328 as moot and
terminate its status as an undecided motion.
Thompson then informed the court that he was ready to file
his brief under the schedule adopted by the court at the
hearing on December 1, 2018 (Doc. 1298). He indicated that he
had brought his brief to court with him and was ready to file
it in open court. Mr. Thompson handed that brief to the
Deputy Clerk present in the courtroom, who file-stamped it as
filed in open court. The Clerk since has posted Mr.
Thompson's motion on the case's CM/ECF docket as Doc.
1335 (“Request to Vacate Mr. Thompson's Conviction
or in the Alternative Grant A New Trial”). Mr. Thompson
informed the court that this filing, now docketed as Doc.
1335, contains all the arguments he wants the court to
the court had vacated the deadline for the government to file
a Reply, the court established a schedule for the government
to file any reply it wishes to file. The government must file
any reply within 10 days of April 1, 2019.
the court notes that defendant Albert Banks submitted a pro
se filing docketed as “Notice of Joinder” (Doc.
1331). In short form, Mr. Banks's pro se filing
“request[s] to adopt all arguments in Mr.
Thompson['s] request to vacate conviction or in the
alternative grant a new trial motion [on] all issues
pertaining to the wiretap CSLI issues and speedy trial
issues. If my attorney does not join into these
issues.” Id. Mr. Banks dated this pro se
request March 12, 2019, the day when Mr. Thompson filed his
pro se Request to Vacate his conviction, Doc. 1328.
the court does not accept pro se filings submitted by
defendants who have chosen to have counsel represent them.
And while the court has discretion to permit hybrid
representation-that is, simultaneous self-representation and
representation by counsel-the defendant has no constitutional
right to hybrid representation. United States v.
Couch, No. 18-3032, 2018 WL 6720627 at *1 (10th Cir.
Dec. 20, 2018) (citing Wiggins, 465 U.S. at 183).
Here, Mr. Banks has never asked the court to permit hybrid
representation. Because that is so, the court does not plan
to entertain the “arguments” that Mr. Banks's
pro se filing purports to adopt in the filing that Mr.
Thompson now has abandoned. If Mr. Banks's counsel wishes
to adopt any of the arguments made in Mr. Thompson's now
abandoned filing, his counsel must file a motion seeking
leave to adopt those arguments.
IS THEREFORE ORDERED BY THE COURT THAT Mr.
Thompson's Pro Se Motion for Appointment of New Counsel
or in the Alternative to Proceed Pro Se (Doc. 1324) and his
Request to Vacate [His] Conviction or in the Alternative
Grant A New Trial (Doc. 1328) are denied as moot.
IS FURTHER ORDERED BY THE COURT THAT Mr.
Thompson's Pro Se Motion To Exercise [His] Constitutional
Right Under Faretta v. California To Proceed Pro Se
(Doc. 1327) is granted.
IS FURTHER ORDERED BY THE COURT THAT the Clerk
remove Ms. Schmidt as counsel of record but that the Clerk
take any steps necessary to permit Ms. Schmidt to continue
receiving CM/ECF notices in light of her status as standby