USA v. Day

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:23-CR-00013-MR-WCM
UNITED STATES OF AMERICA )
)
v. ) ORDER
)
PAUL GORDON DAY, )
)
Defendant. )
______________________________________ )
This matter is before the Court on multiple letters (“Letters”) Docs.
67, 68, 69, 78, submitted by Defendant
pro se, which the Court will construe
as motions, as well as a
pro se “Motion for 2nd Federal Detention Hearing,” Doc.
79, also submitted by Defendant. A hearing on these filings was conducted on
November 22, 2023. The Government was represented by Assistant United
States Attorney David Thorneloe. Defendant, who is representing himself,
appeared with his standby counsel, Joshua D. Nielsen. During that proceeding,
the Court ruled on certain issues and took others under advisement. This
Order now follows.
I. Relevant Background
Defendant appeared with counsel at his initial appearance on February
27, 2023 and remained represented until October 24, 2023, at which time the
Court granted Defendant’s request to represent himself. Standby counsel was
also appointed for him. Doc. 64.
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The Letters and the Motion were filed subsequently, on October 30, 2023,
November 2, 2023, November 9, 2023, and November 13, 2023.
II. Discussion
Defendant’s filings raise the following issues.
A. Defendant’s Location Prior to Trial Generally
Defendant asks to be transferred from the Swain County Detention
Center, where he is currently housed, to the Buncombe County Detention
Center. Docs. 67, 68. Defendant states that the Buncombe County Detention
Center is closer to the federal courthouse, “which would make a trip much
easier for any ‘stand-by’ counsel or U.S. attorney.” Doc. 67.
The Government previously requested that Defendant be detained
pending trial. That request was allowed and Defendant was remanded to the
custody of the Attorney General or the Attorney General’s designated
representative. Doc. 11. Specifically, Defendant is in the custody of the United
States Marshals Service (“USMS”). Defendant has cited no authority that
indicates the Court may, or should, direct where the USMS houses Defendant
pending trial. See e.g., United States v. Boyce, No. 21-CR-30003-DWD, 2023
WL 137823, at *1 (S.D. Ill. Jan. 9, 2023) (“The Court is not aware of any
authority empowering it to supplant the discretion of the USMS in its selection
of where to detain [the defendant].”)
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Accordingly, to the extent Defendant is generally requesting that he be
housed at a different location pending trial, his request is denied.
B. Access to a Law Library
Defendant states that the Swain County Detention Center does not offer
him a law library or access to a telephone. Doc. 67.
During the hearing, however, Defendant stated that he does have access
to legal materials, though for 45 minutes a day “if that.” Further, standby
counsel advised that he has met with Defendant multiple times and that
additional visits are planned.
The Supreme Court has noted that “federal appellate courts have split
on whether [Faretta v. California, 422 U.S. 806 (1975)], which establishes a
Sixth Amendment right to self-representation, implies a right of the
pro se
defendant to have access to a law library.” Kane v. Garcia Espitia, 546 U.S. 9,
10 (2005) (comparing cases).
However, the Fourth Circuit has observed, albeit in an unpublished
opinion, that the “government must provide a criminal defendant with access
to an adequate law library or adequate access to counsel, but not both” and
that “[w]here a defendant has elected to proceed pro se in a criminal case, he
can be required to rely on standby counsel to overcome any research handicaps
due to incarceration.” United States v. Neely, 63 F. App’x 671, 672–73 (4th Cir.
2003) (unpub.) (citations omitted); see also United States v. Chatman, 584 F.2d
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1358, 1360 (4th Cir. 1978) (rejecting argument that, under Bounds v. Smith,
430 U.S. 817 (1977), defendant who had refused the assistance of counsel had
a right to access to legal matters to prepare his defense and the government
had an obligation to provide such access).
In addition, the information provided to the Court in this case indicates
that while Defendant seeks
greater access to legal materials, Defendant does
have	
some access to this information, both directly and through standby
counsel.
Accordingly, and based on the current record, Defendant’s request for an
order directing that he be given additional access to legal materials is denied.
However, given the lack of substantive argument and briefing regarding this
issue, this ruling is without prejudice and does not prohibit Defendant from
making a renewed request for additional access to legal materials. Any such
renewed request, though, should be supported by legal authorities and
sufficient factual information. Standby counsel is specifically authorized to
assist Defendant with the preparation and submission of any such renewed
request, if appropriate.
C. Cruel and Unusual Punishment
Defendant alleges that he has experienced “cruel + unusual punishment”
at the Swain County Detention Center. Docs. 67, 68, 69.
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“Confinement conditions of pretrial detainees are to be evaluated under
the [D]ue [P]rocess [C]lause rather than under the [E]ighth [A]mendment.”
Futrell v. Hardy, 914 F.2d 248 (table) (4th Cir. 1990) (unpub.) (citing Bell v.
Wolfish, 441 U.S. 520, 535 n.16 (1979)); King v. Wright, No. 0:17-705-JMC-
PJG, 2017 WL 2484920, at *2 (D.S.C. May 22, 2017) (“Claims of pretrial
detainees against detention center officials regarding conditions of
confinement are evaluated under the Due Process Clause of the Fourteenth
Amendment rather than under the Eighth Amendment’s proscription against
cruel and unusual punishment.”) (citing Bell, 441 U.S. at 535 n.16; Martin v.
Gentile, 849 F.2d 863, 870 (4th Cir. 1988)).
Here, Defendant does not explain how such a claim may be addressed
in the context of this criminal action. Accord United States v. Henson, No. 1:23-
CR-00028-MR, 2023 WL 5826970, at *1 (W.D.N.C. Sept. 8, 2023) (finding
motion to transfer from state custody to federal custody to be procedurally
improper and stating that to the extent the defendant was challenging the
adequacy of the medical care he was receiving, such a claim was redressable
through the filing of an action pursuant to 42 U.S.C. § 1983).
D. Review of Evidence
In one of his Letters, Defendant asks the Court to “make sure the
prosecution tenders full dash + body cam footage” and audio footage. Doc. 67.
In another, Defendant asks that he be given “full electronic access to discovery,
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police dash + body cams + the suppression hearing. Basically, everything on
record.” Doc. 78.
However, Defendant’s Letter filed on November 13, 2023, Doc. 79, and
his statements during the hearing indicate that he now has been given a
chance to review the Government’s evidence. What remains is Defendant’s
request that he be given access to a computer in order to prepare for trial.
During the hearing, Mr. Nielsen described some requirements and
restrictions at the Swain County Detention Center; for example, Mr. Nielsen
must load video files that he wishes to show Defendant onto his computer in
advance of going to the detention center, and he must schedule appointments
to meet with Defendant. While these requirements may be inconvenient, the
current record does not show that Defendant has been prohibited from
reviewing the evidence against him or from meeting with his standby counsel.
Accordingly, and based on the current record, Defendant’s request for an
order directing that he be given access to computer equipment is denied.
However, this ruling is without prejudice and does not prohibit Defendant from
making a renewed request for such computer access. Any such renewed
request, though, should be supported by legal authorities and sufficient factual
information. Standby counsel is specifically authorized to assist Defendant
with the preparation and submission of any such renewed request, if
appropriate.
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E. “Motion for 2nd Federal Detention Hearing”
Through a previous Motion, which was filed on November 3, 2023,
Defendant requested a “2nd Federal Detention Hearing.” Doc. 72. The
Government responded in opposition on November 7, 2023. Doc. 76. Later that
day, the Motion was denied by written Order. Doc. 77.1
Defendant has now filed a similar motion, Doc. 79, which indicates that
Defendant would like to have his previously-held detention hearing re-opened
so that he can make arguments about the weight of the Government’s evidence,
which he viewed on November 3.
To the extent the instant Motion is a request for reconsideration of the
Court’s denial of Defendant’s prior request that his detention hearing be re-
opened, it is denied.
To the extent the instant Motion is a new request for the re-opening of
Defendant’s prior detention hearing, it is likewise denied. Even if the
information Defendant cites is deemed to have been unknown to him at the
time of his previous hearing, this information does not, in light of the totality
of the evidence that was presented, including the items found in Defendant’s
vehicle when he was arrested and his alleged brandishing of a firearm during
1 Subsequently, on November 15, 2023, Defendant filed “Objections to Govt’s
Response in Opposition to the Defendant’s Motion for Reconsideration of Detention.”
Doc. 81. The undersigned has reviewed the Objections and finds that they do not
require that the Court’s November 7 ruling be disturbed.
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the subject robbery, have a material bearing on the Court’s prior detention
decision.
IT IS THEREFORE ORDERED that Defendant’s requests, as stated in
his
pro se filings (Docs. 67, 68, 69, 78, 79), are DENIED as stated herein.
Signed: November 28, 2023
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