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U.S. v. HARRIS

May 13, 2004.

UNITED STATES OF AMERICA
v.
WILLIAM OSCAR HARRIS, a/k/a "Oscaro El Hari Bey," REGINALD DAVID LUNDY, a/k/a "Noble R. Dauud Lundi El, Bey," REGINALD M. WOOTEN, a/k/a "Noble R. Asanti, Ali," ARTHUR T. OUTTERBRIDGE, a/k/a "Arthor Tomas Ottobrice, Bey," ROBERT McCURDY, a/k/a "Al Ruberto Moor Core Dey," PATRICIA A. CRISP, a/k/a "Patria Ahna Cristos, Ali," CRYSTAL V. WOOTEN, a/k/a "Kris'taal, Ali," a/k/a "Kristin Young," LISA A. BROWN, a/k/a "El Iysah," and CESI AQUIA EL BINYAMIYN, BEY, Defendants



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION ADDRESSING REQUEST OF DEFENDANT OUTTERBRIDGE TO PROCEED PRO SE
This matter is before the Court upon the renewed request of defendant Arthur T. Outterbridge, a/k/a "Arthor Tomas Ottobrice, Bey," to fire his court-appointed counsel, Rocco C. Cipparone, Jr. Esquire, and "speak for himself." Defendant Outterbridge has previously sought to fire his attorney on several occasions, but his requests have been denied because he has refused to waive his Sixth Amendment right to counsel, the necessary precursor to any pro se appearance by a criminal defendant. After the present request, though, at an April 23, 2004 hearing conducted pursuant to Faretta v. California, 422 U.S. 806 (1975), defendant Outterbridge stated that he would waive his right to counsel so that he could "speak for himself" at trial.

Defendant's apparent clarity on the issue of waiver at the April 23, 2004 hearing, though, is clouded by his misconduct during the past eleven months of this case, which continues to date, a factor which must be considered by the Court prior to accepting a waiver of the right to counsel. The Third Circuit has made clear that "waiver of the right to counsel `depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir. 2000) (quoting Edwards v. Arizona, 451 U.S. 477, 482 (1981)). If, after a full consideration of all facets of the case and an inquiry into the defendant's reasons for his request to proceed pro se, the Court determines that the defendant's request is "disingenuous and designed solely to manipulate the judicial process and to delay the trial," as "opposed to a genuine attempt (no matter how ill-advised) to conduct one's own defense," the Court must find that he has not "actually tender[ed] a knowing, voluntary and intelligent waiver of counsel, and has not unequivocally asserted the constitutional right to conduct his own defense." Buhl, 233 F.3d at 797-99.

  The Court has considered the unique facts of this case and the defendant's responses at the April 23, 2004 Fretta hearing, as well as the August 8, 2003 Faretta hearing, and finds, for the reasons explained herein, that defendant Outterbridge not effectuated a valid waiver of his right to counsel. He has instead requested to proceed pro se with the intent to further disrupt and delay the proceedings of this Court. Therefore, he has not intelligently, unequivocally, and voluntarily waived his right to counsel, and the Court will deny his request to proceed pro se. He will continue to be represented by his present counsel, Rocco C. Cipparone, Jr., Esquire.*fn1

 I. BACKGROUND

  Defendant Arthur T. Outterbridge, a/k/a "Arthor Tomas Ottobrice, Bey," (hereinafter "Outterbridge") is one of nine defendants in a criminal case pending before this Court which charges the defendants in a twenty-five count Indictment with conspiracy to produce and pass false and fictitious money orders and with passing false and fictitious money orders in violation of federal law. Defendant Outterbridge's conduct throughout the eleven-month pendency of this case has established that he does not believe that he is subject to the criminal jurisdiction of this Court and that he believes himself to be free to obstruct and manipulate its proceedings if at all possible, using means which include making continuous threats of harm to those who are involved in this case. His misbehavior has been described at length in several prior opinions of the Court, see, e.g. United States v. Harris, Crim. No. 03-354 (JBS), Opinion, (D.N.J. Aug. 14, 2003); id., Opinion Regarding Jurisdiction, (D.N.J. Aug. 15, 2003); id., Opinion Regarding Restrictions on Filing and Other Communications (D.N.J. Aug. 27, 2003); id., Opinion Finding . . . Arthur T. Outterbridge [and others] in Civil Contempt of Court, (D.N.J. April 22, 2004); id., Opinion Regarding Severance, (D.N.J. April 30, 2004), and will be discussed herein as it applies to the present motion.

 II. DISCUSSION

 A. Legal Standard

  In an August 14, 2003 Opinion, the Court explained the "tension between the right to have counsel and the right to represent oneself." United States v. Peppers, 302 F.3d 120, 130-31 (3d Cir. 2002). Both rights are protected by the Sixth Amendment,*fn2 Faretta v. California, 422 U.S. 806, 806-07 (1975), but the right to counsel is "the paramount right vis a vis the right to self-representation," Buhl v. Cooksey, 233 F.3d 783, 790 n.8 (3d Cir. 2000). Therefore, because a defendant "cannot secure the right to proceed pro se without sacrificing the right to counsel," the court must "make a thorough inquiry and take all steps necessary to insure the fullest protection" of the right to counsel, and must "indulge every reasonable presumption against a waiver of counsel." Buhl, 233 F.3d at 790 (quoting Von Moltke v. Gillies, 332 U.S. 708, 722 (1948); Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

  The defendant does not need to recite a specific "script" for the Court to find that he has effectively waived his right to counsel, see Iowa v. Tovar, 124 S.Ct. 1379, 1389-90 (2004), but the defendant is required to "overcome the presumption against a waiver of counsel" by "clearly and unequivocally" indicating that he seeks to proceed pro se and that his waiver of the right to be represented by counsel is "voluntary, knowing and intelligent," Peppers, 302 F.3d at 129; United States v. Stubbs, 281 F.3d 109, 116-17 (3d Cir. 2002). Moreover, his effort at self — representation may be denied when it is motivated by the intent to obstruct the tribunal itself. Buhl, 233 F.3d at 797-99. When a defendant seeks to proceed pro se, the trial court must conduct a "sufficiently penetrating inquiry to satisfy itself that the defendant's waiver of counsel is knowing and understanding as well as voluntary" in light of the facts and circumstances of the case. Peppers, 302 F.3d at 130-31; Buhl, 233 F.3d at 790. The Court must be satisfied that the defendant understands the nature of the charges and the disadvantages of self — representation,*fn3 and must also be convinced that the defendant's motives for the request are appropriate. Buhl, 233 F.3d at 798. "Inquiry into a defendant's motives is necessary and appropriate because it helps the trial court determine if the purported waiver of counsel is voluntary, knowing and intelligent." Id. A defendant who "intends nothing more than disruption and delay is not actually tendering a knowing, voluntary and intelligent waiver of counsel" because his decision is not grounded in an understanding of the implications of a waiver, but is instead centered around his manipulative intent. Id. at 797. The right of self-representation, though, is "not a license to disrupt" the court; indeed, if the "defendant's requests are disingenuous and designed solely to manipulate the judicial process and to delay the trial, . . . such tactics by an accused cannot be allowed to succeed." Id. at 799.

  The trial court, therefore, must conduct a probing inquiry into the defendant's request, and cannot "merely accept the defendant's statement . . . that he is informed of his right to counsel and desires to waive this right." Id. at 799. The Court must consider the "particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused," to determine if "the defendant is attempting to disrupt the administration of justice" with his request to proceed pro se, or is providing a knowing, voluntary and intelligent waiver of counsel. Id. at 790, 797.

 B. Analysis

  This Court must deny the request of defendant Outterbridge to proceed pro se because he has failed to validly waive his Sixth Amendment right to counsel. Although Outterbridge stated with apparent clarity that he wished to waive the right to counsel and "speak for himself" at the April 23, 2004 Faretta hearing, his conduct during the past eleven months, and continuing to date, establishes that this April 23rd attempt to proceed pro se is the product of his desire to obstruct and delay the administration of justice in this matter and to prevent the Court from presiding over an orderly trial. This is not a valid reason for the Court to allow the defendant to waive the fundamental and paramount right to counsel.

  For the past eleven months, defendant Outterbridge has consistently made clear that he not only refuses to acknowledge the authority that this Court has over him, and the statutes conferring jurisdiction and the rules of evidence and criminal procedure, but that he seeks to derail the present proceedings through unlawful means if at all possible. Outterbridge has shown his disrespect for the Court through his behavior during hearings and through his failure to respect the rulings of the Court, which has subjected him to two civil contempt findings. Indeed, defendant Outterbridge presently remains in continuing civil contempt of this Court's Order of August 27, 2003 because he has failed to purge his contempt as provided by the Court's Order of April 22, 2004. See United States v. Harris, Crim. No. 03-354 (JBS), Opinion Regarding Restrictions on Filing and Other Communications (D.N.J. Aug. 27, 2003); id., Opinion Finding . . . Arthur T. Outterbridge [and others] in Civil Contempt of Court, (D.N.J. April 22, 2004). Outterbridge has also joined four of co-defendants in threatening filings of involuntary bankruptcy against the undersigned trial judge, other judicial officers, and others whose official duties involve them in this criminal case, (see "Affidavit of Notice of Default," dated September 10, 2003), threats which have been repeated as recently as April 27, 2004 by co-defendant Lundy, (see "Notice and Acceptance of Offer," dated April 27, 2004).*fn4 The Court finds, after considering the defendant's behavior during the pendency of this case and the defendant's answers during the April 23, 2004 Faretta hearing, as well as in the prior Faretta hearing, that his present request to proceed pro se is just one more effort taken to try to disrupt the Court's administration of justice. As such, it must be denied as it does not establish a voluntary, intelligent, and knowing waiver of the right to counsel.

  Defendant Outterbridge has attempted to disrupt the Court during the majority of the hearings held in this matter. When he made his initial appearance before United States Magistrate Judge Joel B. Rosen on May 9, 2003, he mechanically stated that he did not want the Court to make legal determinations concerning him, that he "fired" the Court, and that he did not want to "contract with" the Court. At his detention hearing on May 13, 2003, defendant Outterbridge again refused to participate in the proceeding, instead stating that he "fired" the Court and that he refused to "consent to these proceedings." At his arraignment on May 21, 2003, defendant Outterbridge stated that he did not wish to contract with the Court. He did answer one question responsively on May 21, 2003; when asked whether he wished to proceed pro se based on his assertion that he "fired" his attorney, he stated that he was "capable of representing himself," but that he was "not qualified." Defendant Outterbridge next appeared before the Court on July 25, 2003 to discuss documents that the Court had received which included the name of defendant Outterbridge, and other defendants in this matter, and sought to require payment of millions of dollars from the Court and from the United States Attorney and his assistants, pursuant to bogus commercial contracts, liens, and security interests Outterbridge and several co-defendants claimed against their property due to ...


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