USA v. McCray

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
UNITED STATES OF AMERICA, 	§
§
Plaintiff, 	§
§
v. 	§ 	2:25-CR-053-X-BR-1
§
DONALD RAY MCCRAY, 	§
§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO DENY
DEFENDANT’S MOTION FOR SELF-REPRESENTATION
This matter has been referred to the undersigned United States Magistrate Judge for a
recommendation on Defendant’s motion to proceed pro se—i.e., to represent himself in his
criminal defense—pursuant to 28 U.S.C. § 1654. (ECF 84). For the following reasons, the
undersigned finds that Defendant has clearly, unequivocally, knowingly, and intelligently waived
his Sixth Amendment right to counsel, but has subsequently waived his right to represent himself
by deliberate and serious obstructionist conduct. Accordingly, the undersigned RECOMMENDS
that the presiding United States District Judge DENY the Defendant’s request to represent himself.
I. 	PROCEDURAL BACKGROUND
Defendant initially appeared before the undersigned on June 30, 2025 in connection with
a four-count indictment alleging two counts of Mailing a Threatening Communication in violation
of 18 U.S.C. § 876(c) (counts 1 and 3) and two counts of False Information and Hoax in violation
of 18 U.S.C. § 1038(a)(1). (See ECF 1 (Indictment) and ECF 12 (Initial Appearance Hearing
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Transcript)).1 At his initial appearance, Defendant orally moved the Court for leave to proceed pro
se; the undersigned appointed counsel for Defendant and set a Faretta hearing for Defendant’s
motion for July 11, 2025. (ECF 10); see Faretta v. Cal., 422 U.S. 806 (1975).
On July 8, 2025, Defendant’s appointed counsel moved for a psychiatric examination to
determine whether Defendant is competent to stand trial. (ECF 17). Based on that motion, the
undersigned vacated the July 11, 2025 Faretta hearing, to be reset after the question of competency
had been resolved. (ECF 19).2 The Court received the examination report from the Federal Bureau
of Prisons under seal on December 11, 2025. (ECF 59).
By a sealed electronic Order, the then-presiding United States District Judge3 referred the
matter of Defendant’s competency to the undersigned United States Magistrate Judge for a hearing
and recommendation. (ECF 63). The undersigned set a competency hearing, noting that
Defendant’s request to represent himself was still pending and advising the Defendant that he
would “be represented by his appointed attorney at this hearing, and [would] be afforded an
opportunity to present evidence to the Court.” (ECF 65 at 2). On January 27, 2026, the parties filed
under seal a stipulation, signed by counsel for both parties and by the Defendant, indicating their
1 The factual background of the allegations against Defendant was recounted in the undersigned’s February 2, 2026
Findings, Conclusions, and Recommendation to Find Defendant Competent to Stand Trial, and will not be recounted
here. (See ECF 70 at 3–5), available online at United States v. McCray, 2026 WL 614866, 2026 LX 160843 (N.D.
Tex. Feb. 2, 2026). By contrast, much of the procedural history recounted there is reproduced here, because
Defendant’s conduct in this case is relevant to his request to represent himself.
2 The law requires that a defendant whose competency to stand trial is at issue must be represented by counsel. 18
U.S.C. §§ 4241(c), 4247(d) (“[T]he person whose mental condition is the subject of the hearing shall be represented
by counsel[.]”) (emphasis added); accord United States v. Sterling, 99 F.4th 783, 799 (5th Cir. 2024) (“[W]here a
court has reasonable cause to question the defendant’s competency, it must appoint counsel for the defendant until
that doubt is extinguished.”).
3 The currently-presiding District Judge is the fifth to have been assigned to this case, the four previous District Judges
having recused, possibly in response to Defendant’s conduct. (See ECF 12 at 13, 18, 48 at 5, 51, 62, and 64).
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agreement that the doctor who had examined Defendant would testify that he was competent if she
were called to the stand at the hearing. (ECF 68).
On January 30, 2026, the parties appeared before the undersigned for the competency
hearing. (See ECF 71) (transcript). Shortly after entering the courtroom, before the undersigned
could call the case, the Defendant began to loudly and aggressively voice complaints about the
fact that he is currently represented by counsel. (Id. at 2). When instructed to control himself and
informed that appointed counsel would continue to represent him for the competency hearing,
Defendant’s behavior escalated to shouted obscenities and verbal threats of violence against the
undersigned and her family. (Id. at 2–3).4 When it became clear that Defendant would persist in
disrupting the hearing, the undersigned directed the United States Marshals to remove him from
the courtroom. (Id. at 3).
Based on the contents of the psychiatric report, and on Defendant’s own statements in the
record, the undersigned recommended that Defendant be found competent to stand trial. (See
generally ECF 70). The presiding United States District Judge adopted the recommendation on
March 4, 2026. (ECF 79).
On March 4, 2026, Defendant’s appointed counsel moved for a hearing on Defendant’s
persistent request to represent himself. (ECF 81). The District Judge referred that motion to the
undersigned. (ECF 84). Defendant appeared before the undersigned for the hearing on March 11,
2026. (ECF 89). Once again, shortly after entering the courtroom, Defendant attempted to assert
control over the proceedings. Asserting that no Faretta hearing was necessary because the law
4 The undersigned declined to recuse in response to those threats. (ECF 70 at 3 n.3). The threats have been repeated
as described below, but the undersigned continues to decline to recuse for the same reasons. If a situation arises in the
future that would lead a reasonable observe to question her impartiality, the undersigned might recuse in response to
that situation.
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guarantees him the right to represent himself,5 Defendant declared that a “detention hearing” was
the only proceeding before the undersigned in which he would participate.6 He then attempted to
leave the courtroom, and when asked by the undersigned if he was waiving his right to a Faretta
hearing, he confirmed that he had no intention of participating and voluntarily left.
The Court 	then 	transitioned 	to 	arraignment 	proceedings7 and 	established 	a video
teleconference connection to the courthouse holding cell. The undersigned then attempted to
ensure Defendant understood the charges listed in the indictment8 and the possible sentences they
carry. Defendant explicitly indicated he would not be participating in the arraignment, and he spent
the entirety of the hour-long hearing singing loudly in the holding cell to disrupt proceedings.
Though the Court was able to silence the audio streaming into the courtroom, permitting the
undersigned and counsel to proceed, the Defendant’s singing made it almost impossible to hear
those proceedings in the holding cell, as confirmed by the Deputy United States Marshall who was
in the holding area with Defendant. Accordingly, the Court ordered the Government to produce a
written notice of the maximum statutory penalties associated with the charges in the indictment,
5 For clarity, Defendant is correct that the law does not require a hearing prior to granting a Defendant’s motion for
self-representation. Wiggins v. Procunier, 753 F.2d 1318, 1320 (5th Cir. 1985); accord Higginbotham v. Louisiana,
817 F.3d 217, 223 n.7 (5th Cir. 2016).
6 As the Court has explained in previous orders, a detention hearing is not necessary in this case because Defendant is
currently serving sentences of incarceration for past crimes, so the question of his detention pending trial is moot.
(See, e.g., ECF 72). Defendant’s goal, as he has explained it in open court and in multiple pro se filings, is to litigate
what he perceives to be his illegal captivity by the Texas Department of Criminal Justice. (See, e.g., ECF 12
at 17–18). It goes without saying that these criminal proceedings are an improper vehicle for him to assert such claims.
7 The details of Defendant’s arraignment are relevant to the instant inquiry only as an example of his dilatory
misconduct.
8 Defendant has previously demonstrated extensive familiarity with his indictment. For example, at his initial
appearance, he complained that the indictment did not name his intended victims, and that it inadequately represented
Defendant’s actual intent to murder those victims. (ECF 12 at 10–12). His pro se filings have also repeatedly made
reference to the indictment. (E.g., ECF 87 at 1–2) (“Comes now . . . Defendant . . . for four 4 jury trials as charged in
each indictment . . . pursuant to the March 7, 2025 federal grand jury charges[.]”) (internal punctuation omitted).
Defendant’s counsel also confirmed at the arraignment that his client was familiar with the charges and stated his
belief that Defendant understood the charges against him.
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and that written notice was delivered to Defendant in the holding cell. (See ECF 92). Defendant
asked the Marshall to place the document under the cell door, which he did.
II. 	LEGAL STANDARD
Congress has established that parties in federal courts are generally permitted to represent
themselves. 28 U.S.C. § 1654. For defendants in criminal cases, the Supreme Court has held that
the same right is granted implicitly by the Sixth Amendment to the Constitution. Faretta v. Cal.,
422 U.S. 806, 834–835 (1975). There is a natural tension between this right to self-representation
and the Sixth Amendment’s explicit guarantee of the right to assistance of counsel. U.S. C ONST.
amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.”).
From the beginning of a criminal case, the right to assistance of counsel is in force, and it
can only be superseded by an affirmative assertion of the right to self-representation by the
defendant. Neal v. Tex., 870 F.2d 312, 314 (5th Cir. 1989). A waiver of the right to counsel in
favor of the right to self-representation is only effective if knowingly and intelligently made.
Faretta, 422 U.S. at 835. The record must reflect that the waiver was clear and unequivocal. Neal,
870 F.2d at 314. The trial court must ensure these standards are satisfied before granting a motion
for self-representation and withdrawing appointed counsel. Id. (quoting McQueen v. Blackburn,
755 F.2d 1174, 1177 (5th Cir. 1985)).
Once a defendant has knowingly and intelligently elected to represent himself, there are
few exceptions that could justify a court’s decision to withhold that right. For example, a
defendant, though mentally competent to stand trial, could lack the mental capacity to represent
themselves. Indiana v. Edwards, 554 U.S. 164, 177–78 (2008); but see United States v. Jackson,
140 F.4th 263, 271 (5th Cir. 2025) (holding that Edwards creates a “liminal space” for
“exceptional” circumstances).
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For another example, a court “may terminate self-representation by a defendant who
deliberately engages in serious and obstructionist misconduct.” Faretta, 422 U.S. at 834 n.46
(citing Illinois v. Allen, 397 U.S. 337 (1970)). This is particularly appropriate if the misconduct
“may be interpreted as a delay tactic.” United States v. Hill, 63 F.4th 335, 349 (5th Cir. 2023). If
a defendant’s misconduct is so extreme as to require his removal from the courtroom, the
reappointment of counsel may be a positive necessity. Id. at 349–50 (collecting cases).
III. 	ANALYSIS
Defendant first invoked the right to represent himself at his initial appearance before the
undersigned on June 30, 2025. (ECF 12 at 3–4). He initially asserted the right as a waiver of the
right to remain silent; he later reasserted it as a waiver of the right to assistance of counsel. (Id. at
4–5). At that hearing, the undersigned found that Defendant financially qualified for the
appointment of counsel, and explained to Defendant that the Federal Public Defender’s Office
would be appointed to the case, and would function at least as stand-by counsel until the matter of
Defendant’s self-representation had been resolved. (Id. at 7–8).
As noted above, a determination on Defendant’s motion to represent himself was then
delayed by proceedings to determine whether he is competent to stand trial. (See generally
ECF 70). The next expression on the record of Defendant’s intent to waive the right to counsel
occurred at the competency hearing, where Defendant’s belief that his right to self-representation
was being violated provoked him to threaten violence against the undersigned. (ECF 71 at 2). In
subsequent pro se filings, Defendant has repeated both the demand for self-representation and the
threats against the undersigned for what he perceives as the improper frustration of that demand.
(ECF 74 at 1–2 and ECF 78 at 2–6).
As a threshold matter, this is more than adequate to establish a “clear and unequivocal”
record of Defendant’s affirmative waiver of the right to assistance by counsel. See Neal, 870 F.2d
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at 314. There is also evidence that it has been knowingly and intelligently made. It is not the result
of coercion or mistreatment of the Defendant, who first invoked the waiver before he had ever
conversed with appointed counsel. See McQueen, 755 F.2d at 1177. The Defendant has stated on
the record that he understands the charges brought against him, and has objected to them primarily
on the grounds that, first, they do not name his intended victims, and second, they do not reflect
how seriously he intended to harm those victims. (ECF 12 at 11–16). In his psychiatric evaluation
for competency proceedings, Defendant reported that he was 67 years old, and that he graduated
high school in 1977. (ECF 59 at 4). He also demonstrated an adequate understanding of courtroom
proceedings and legal concepts. (Id. at 6).
However, there is also a more than adequate record in this case of Defendant “deliberately
engag[ing] in serious and obstructionist misconduct.” See Faretta, 422 U.S. at 834 n.46. He has
tried to assert control over each of the three in-court proceedings that have occurred in this matter.
(See ECF 12 at 2 and ECF 71 at 2). Though his primary focus for most of this case has been on
asserting his right to represent himself, when the time to vindicate that right had finally arrived, he
deployed the same misconduct to frustrate the Court’s consideration of his own motion. Finally,
his behavior during arraignment, as described above, caused a hearing that can normally be
completed in less than ten minutes to take a full hour. (See ECF 91) (minute entry).9
9 Defendant’s obstructionist misconduct is not limited to the courtroom. On August 5, 2025, while inquiries into
Defendant’s competency were ongoing, the then-presiding District Judge denied a collection of pro se motions on the
grounds that Defendant was still represented by counsel and not entitled to dual representation. (ECF 29) (citing United
States v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978)). Despite the District Judge’s instructions, Defendant has
subsequently made no less than thirty-two different pro se filings, each of which frustrates the judicial process and
wastes resources by requiring full review of each motion and orders to dispose of those numerous motions. (ECF 30,
32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 45, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57, 58, 66, 74, 76, 77, 78, 86, 83, and 87).
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IV. 	CONCLUSION
Accordingly, the undersigned finds that Defendant has deliberately engaged in serious
obstructionist conduct as a delay tactic, and that he has impermissibly attempted to use the right
of self-representation as “a license to abuse the dignity of the courtroom.” See Faretta, 422 U.S.
at 834 n.46.
For the reasons above, the undersigned United States Magistrate Judge RECOMMENDS
that the presiding United States District Judge DENY Defendant’s motion to dismiss appointed
counsel and represent himself.
V. 	INSTRUCTIONS FOR SERVICE
The Clerk of Court is DIRECTED to send a copy of this FCR to each party by the most
efficient means available.
ENTERED on March 12, 2026.
* NOTICE OF RIGHT TO OBJECT *
Any party may object to these proposed findings, conclusions and recommendation. In the
event parties wish to object, they are NOTIFIED that the deadline for filing objections is fourteen
(14) days from the date of filing as indicated by the “entered” date directly above the signature
line. Service is complete upon mailing, FED. R. C IV. P. 5(b)(2)(C), or transmission by electronic
means, FED. R. C IV. P. 5(b)(2)(E). Any objections must be filed on or before the fourteenth (14th)
day after this recommendation is filed as indicated by the “entered” date. See 28 U.S.C. § 636(b),
FED. R. C IV. P. 72(b)(2), and FED. R. C IV. P. 6(d).
Any such objections shall be made in a written pleading entitled “Objections to the
Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections
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with the United States District Clerk and serve a copy of such objections on all other parties. A
party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds
of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal
conclusions, and recommendations set forth by the Magistrate Judge and accepted by the District
Judge. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS
Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857
F.2d 275, 276-77 (5th Cir. 1988).
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