United States District Court, D. Colorado
ORDER REGARDING DEFENDANT'S MOTION TO DISMISS ALL
CHARGES OR APPOINT COMPETENT COUNSEL
P. Gallagher, United States Magistrate Judge.
matter comes before the Court on Defendant's motion to
dismiss all charges or appoint competent counsel (ECF
#130) and the Government's response (ECF #
135). The Court has reviewed each of the aforementioned
documents and any attachments. The Court has also considered
the entire case file, the applicable law, and is sufficiently
advised in the premises. Oral argument is not necessary to
resolve this discrete issue. For the following reasons, I
DENY the motion.
moves the Court to dismiss this action or to appoint
competent counsel to represent him. Some history is in order:
appeared before the Court on 8/31/15 for arraignment, was
found to be indigent and was appointed Counsel in the person
of Colleen Scissors, Esq. Ms. Scissors, who discontinued
practice in Federal Court, was allowed to withdraw from
representation of Defendant on 1/7/16. Brian Leedy, Esq. from
the Federal Public Defender's Office was appointed in her
stead and was allowed to withdraw on 2/16/16. At that time,
William Richardson, Esq. was appointed to represent
Defendant. Mr. Richardson moved to withdraw on 7/21/16 and
the motion was granted on 7/26/16. At that time, Ronald
Berger, Esq. was appointed to represent Defendant. Mr. Berger
withdrew from representation on 9/27/16 at the conclusion of
a Daubert hearing which was conducted that day.
the nature of the conflict between many of the Counsel
appointed for Defendant and Defendant himself, the exact
conflict was not fully aired pursuant to the attorney-client
privilege and the interaction of the Colorado Rules of
Professional Conduct 1.6 and 1.16. However, during the
repeated hearings on this matter, the issue was fleshed out
as follows: Defendant believes that the Archaeological
Resources Protection Act of 1979 (ARPA) is being misconstrued
by both the Government and by Defense Counsel. Defendant
wished for his various Counsel to adopt this position and
file motions to dismiss on that basis. His Counsel, as
Officers of the Court and believing that they did not have a
good faith basis to file such motions, refused to do so.
Therefore, Defendant wanted them discharged as he believed
that their performance was thus deficient. An extensive
advisement was provided to Defendant regarding this matter on
10/24/16 (ECF #127, pp. 93-127, transcript of that hearing).
That reasoning is made a part of this Order.
Court clearly informed Defendant that the Court would not
continue to appoint Counsel on the basis that current Counsel
refused to file motions which they thought had no substantial
justification in the law. Defendant could, and has, filed
those motions pro se, but Defendant did not get to
keep rolling the dice in the hopes that he would be appointed
Counsel who might agree with his version of the statute. I
would note that I appointed standby/advisory Counsel to be
present with Defendant at all future hearings.
instant motion rehashes those issues. Defendant believes that
this action should be dismissed because I refuse to appoint
new Counsel. Defendant was unequivocally informed, prior to
discharging Mr. Berger, that new Counsel would not then be
appointed. That warning was also provided at the time of
discharge of prior Counsel.
arguments are that:
1. Counsel appointed to date were not competent (ECF #130,
2. Counsel misconstrued ARPA (ECF #130, pp. 2-24);
3. Counsel did not pay heed to Defendant's
Miranda rights and failed to file a motion on this
issue (ECF #130, p.24) (I would note that this is the first
instance Defendant has raised this issue with the Court)
(Defendant has filed a separate motion on this matter which
is set for hearing ECF #131)(co-Defendant Kondyjowski filed a
motion to suppress regarding this issue, ECF #37, the
Government responded, ECF #46, but the motion was never
litigated due to the dismissal of the action as to the
4. Counsel Berger was “inept” in his examination
of potential expert witnesses (ECF #130, p.25).
extent that I am able, of course not being privy to the
confidential communications between Defendant and his Counsel
except to the extent they have been revealed in open Court, I
have examined the performance of each Counsel to date.
Disregarding the efforts of Attorney Scissors who withdrew
for other reasons, I find nothing to indicate that any
Counsel's performance has been deficient in any fashion.
Defendant's motion is wholly without substance and
appears to be a conflated belief that because he understands
the statute in a fashion different from multiple attorneys,
they are wrong and ...