United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
Anthony Thompson, now appearing pro se, has submitted a
letter dated April 5, 2019, to the Clerk. This letter is now
shown as Doc. 1338 on the case's docket. The court
directed the Clerk to docket this correspondence as a motion
because it asks for certain relief. Also before the court is
Mr. Thompson's Request to Disclose Favorable Information
Pursuant to Rule 16 (Doc. 1340). The government has filed a
Response addressing Mr. Thompson's requests for relief,
and this Order rules on them.
before it reaches the specific requests, the court orders Mr.
Thompson to make any future requests for relief in the form
of a motion filed in compliance with the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P. 12(b)(1)
(“A party may raise by pretrial motion any . . .
request that the court can determine without a trial on the
merits.”) & 47(a) (“A party applying to the
court for an order must do so by motion.”).
first request in Document 1338 asks the court “to order
the government to provide [Mr. Thompson] with the entire
record.” While the court can't be certain what Mr.
Thompson means by the “entire record, ” the court
recently has approved a funding request submitted by his
standby counsel. Standby counsel asked the court to approve
use of a paralegal to copy standby counsel's record of
case materials onto an electronic storage device so that she
can provide it to Mr. Thompson's current institution of
incarceration. There, Mr. Thompson may use laptop computers
kept at that location by the Federal Public Defender and
regularly used to review case discovery materials. And, the
government has advised the court that an encrypted thumb
drive containing standby counsel's copy of the record has
already been created. Doc. 1343 at 2.
facilitate Mr. Thompson's capacity to review material
about his case, the court orders that a secured laptop be
provided to Mr. Thompson by the Federal Public Defender's
office. This computer will be inspected and approved by the
U.S. Attorney's Office. The Federal Public Defender's
office is responsible for maintenance of the computer. The
computer provided to Mr. Thompson will meet certain
prerequisites. The computer will contain only certain
programs installed to allow Mr. Thompson to review materials
on the encrypted thumb drive but not to alter or amend those
materials. A separate note-taking function will allow Mr.
Thompson to take and store notes. The computer's
note-taking function will be accessible only to Mr. Thompson.
The computer's wi-fi card will be physically removed and
the network and Bluetooth communications will be disabled.
Certain data, including any protected discovery provided by
the government, will be loaded onto the laptop hard drive.
Finally, Mr. Thompson will be subject to any protective order
entered by the court governing personal identification and
other sensitive material.
addition, to accommodate Mr. Thompson's request, the
court directs the Clerk to include a copy of the entire
CM/ECF docket sheet for Mr. Thompson's case when mailing
this Order to Mr. Thompson. The court's approval of
standby counsel's funding request and its Order providing
Mr. Thompson computer-access at his institution of
incarceration should nullify the need for the order sought by
Mr. Thompson's letter. Thus, the court denies Mr.
Thompson's request for access to the “entire
record” as moot. It does so, however, without prejudice
to Mr. Thompson renewing his motion if future circumstances
to the second request in Document 1338, Mr. Thompson asks
“the Court to clarify what is [standby] counsel's
role going forward.” Id. In context, it is
clear, this part of Mr. Thompson's letter asks the court
to define any limits on the control he now wields over his
case and what assistance standby counsel may provide. The
role of standby counsel is, if requested by Mr. Thompson, to
assist him “in overcoming routine procedural or
evidentiary obstacles to the completion of some specific task
. . . that [Mr. Thompson] has clearly shown he wishes to
complete.” United States v. McDermott, 64 F.3d
1448, 1453 (10th Cir. 1995) (quoting McKaskle v.
Wiggins, 465 U.S. 168, 183 (1984)); see also United
States v. Vigil, 605 Fed.Appx. 757, 764 (10th Cir. 2015)
(concluding informed waiver of right to counsel where court
advised defendant that standby counsel would answer legal
questions and facilitate defendant's access to
information about legal procedures). As part of this role,
standby counsel, upon receiving a request from Mr. Thompson,
must facilitate his access to discovery and defense
materials.United States v. Kosoko, No.
2:08-cr-0332-JCM-GWF, 2010 WL 3909968, at *1 (D. Nev. Oct. 4,
2010). But, standby counsel is not tasked with serving as Mr.
Thompson's investigator or clerical assistant. United
States v. Wilson, No. 08-450-KHV, 2010 WL 5184263, at *3
(D. Colo. Dec. 15, 2010). And, it remains Mr. Thompson's
responsibility to determine and advance his defense strategy,
including, as Mr. Thompson saw fit to do, requesting
documents from the government.
to Mr. Thompson's discovery request in Document 1340, the
government, in its Response, indicates it is in possession of
the documents requested and intends to provide them to Mr.
Thompson. Doc. 1343 at 2. Consistent with the Response, the
court grants Mr. Thompson's discovery request and orders
the government to complete disclosure of the requested
information by May 10, 2019.
IS THEREFORE ORDERED BY THE COURT THAT the United
States Marshal must make arrangements for Mr. Thompson's
institution of incarceration to take possession of the laptop
and charging cord, with operating instructions from the
Federal Public Defender's office. Between receipt of the
computer and the hearing scheduled for May 21, 2019, Mr.
Thompson must be allowed at least fifteen hours per week to
review electronically-stored data in a secure and
confidential manner. Mr. Thompson will conduct his review in
a room that is occupied solely by him.
IS FURTHER ORDERED BY THE COURT THAT Mr.
Thompson's Pro Se Motion to Clarify Duties (Doc. 1338) is
denied as moot, without prejudice to Mr. Thompson refiling
IS FURTHER ORDERED BY THE COURT THAT the Clerk must
include a copy of the current CM/ECF docket sheet for his
case when mailing this Order to Mr. Thompson.
IS FURTHER ORDERED BY THE COURT THAT, consistent
with the government's Response (Doc. 1343), Mr.
Thompson's Request to Disclose Favorable Information
Pursuant to Rule 16 (Doc. 1340) is granted and the government
must disclose the requested information by May 10,