U.S. v. D'Armond

• Citation: 65 F.Supp.2d 1189
• Decision Date: 13 August 1999
• Docket Number: No. 98-40076-01-SAC.,No. 98-40076-02-SAC.,98-40076-01-SAC.,98-40076-02-SAC.
• Parties: UNITED STATES of America, Plaintiff, v. Ray Lee D'ARMOND, Brian Keith Lindberg, Defendants.
• Court: U.S. District Court — District of Kansas

65 F.Supp.2d 1189

UNITED STATES of America, Plaintiff, v. Ray Lee D'ARMOND, Brian Keith Lindberg, Defendants.

No. 98-40076-01-SAC.

No. 98-40076-02-SAC.

United States District Court, D. Kansas.

August 13, 1999.

COPYRIGHT MATERIAL OMITTED

Anthony W. Mattivi, Office of U.S. Atty., Topeka, KS, for Plaintiff.

Randy L. Baird, Topeka, KS, Mark L. Bennett, Jr., Bennett & Dillon, L.L.P., Topeka, KS, Chris N. Cowger, Topeka, KS, Stephen W. Kessler, Topeka, KS, Eric Kjorlie, Topeka, KS, J. Richard Lake, Holton, KS, William K. Rork, Rork Law Office, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On November 19, 1998, the grand jury returned a superseding indictment¹ charging Ray Lee D'Armond, Jr. and Brian Keith Lindberg with conspiring to manufacture in excess of 10 grams of methamphetamine (in violation of 21 U.S.C. § 841(a)(1)), attempting to manufacture methamphetamine (in violation of 21 U.S.C. § 841(a)(1), and creating a substantial risk of harm to human life by attempting to manufacture methamphetamine) (in violation of 21 U.S.C. § 858). D'Armond is also charged with one count of being a felon in possession of a firearm (in violation of 18 U.S.C. § 922(g)(1)), one count of using and carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 U.S.C. § 924(c)) and two counts of possessing listed chemicals (iodine and ephedrine) with the intent to manufacture methamphetamine (in violation of 21 U.S.C. § 841(d)(1)).

Competency of Ray Lee D'Armond

Based in part upon the concerns of defendant's counsel, Eric Kjorlie, regarding the mental competency of his client, on December 9, 1998, this court entered an order requiring the marshals to transport D'Armond to the Medical Facility for Prisoners in Springfield, Missouri, for the purpose of evaluating the defendant to determine whether the defendant is presently suffering from a mental disease or defect rendering him incompetent to stand trial. The court, the defendant and the prosecution have since received copies of that competency evaluation. The report indicates that the defendant is competent to stand trial.

On March 19, 1999, prior to considering the pretrial motions filed by the defendants, the court conducted a hearing to determine whether the defendant is competent to stand trial. As it announced in open court, the court, having considered the Forensic Psychological Report prepared by Richard L. DeMier, Clinical Psychologist at the United States Center for Federal Prisoners at Springfield, Missouri, the arguments of counsel and knowing of no evidence indicating that the defendant is not competent to stand trial, finds by a preponderance of the evidence that the defendant, Ray Lee D'Armond, is able to understand the nature and consequences of the proceedings against him and is able to assist properly in his own defense. Although it is clear that the defendant was then displeased with his appointed attorney, there is no indication that he does not currently have the ability to consult with an lawyer with a reasonable degree of rational understanding. D'Armond's unique interpretations of the law — as evidenced by his pro se motion to dismiss for lack of jurisdiction — are not of such a nature as to cast doubt on the court's conclusion that he has a rational understanding of the proceedings against him.

Motions pertaining to appointment of new counsel: PRO SE MOTION by deft Ray Lee D'Armond Jr for order for new appointment of counsel (Dk.38); Motion for Appointment of New Counsel (Dk.69); Counsel's response to Motion for Appointment of New Counsel (Dk.70); Counsel's Motion to Withdraw (Dk.78).

On August 21, 1998, Magistrate Judge Newman appointed Mark Bennett to represent D'Armond. On September 29, 1998, Bennet filed a motion to determine the propriety of his continued representation in this case as his law firm had previously represented some of the police officers involved in the investigation of this case. On October 6, 1998, the court entered an order relieving Bennett of the appointment. Eric Kjorlie, an experienced member of the federal bar, was appointed to represent D'Armond.

Since that time, D'Armond has repeatedly expressed the opinion that Mr. Kjorlie has not represented him in an appropriate and zealous manner. D'Armond's motion indicates that there "exists a complete breakdown in communication or an irreconcilable difference" and that he should be appointed a new attorney. D'Armond filed a complaint against Kjorlie with the Kansas Office of Disciplinary Administrator, essentially challenging Kjorlie's decision to report his concerns that D'Armond suffered from a mental illness to the court and the prosecution.

Although the disciplinary administrator has concluded that Kjorlie has not committed any violation of the Model Rules of Professional Conduct as alleged by D'Armond, Kjorlie agrees that his relationship to D'Armond has grown acrimonious. D'Armond ostensibly believes that Kjorlie is acting in concert with the prosecution. In short, Kjorlie asks to be relieved from the appointment in this case as the conflict that exists between D'Armond and himself cannot be repaired.

Substitution of Counsel

"`To warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict.'" United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987) (quoting McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982)).

Conflicts

While the Sixth Amendment demands that counsel to criminal defendants act as their advocates, the rule is not absolute in any sense. Counsel does not have to take every position and make every argument that the client requests. See United States v. Dawes, 874 F.2d 746, 748 (10th Cir.) (per curiam) ("There is no right to counsel who will blindly follow a defendant's instructions."), cert. denied, 493 U.S. 920, 110 S.Ct. 284, 107 L.Ed.2d 264 (1989).

Conflicts and Issues of Competency

The Sixth Amendment does not require the defendant's attorney to adhere to the defendant's wish to avoid the issue of the defendant's competency. United States v. Boigegrain, 155 F.3d 1181, 1187 (10th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 828, 142 L.Ed.2d 686 (1999). "[W]hen a lawyer has reason to believe that her client may not be mentally competent to stand trial, she does not render ineffective assistance of counsel by making her concerns known to the court." Id.

Analysis

As the Tenth Circuit's opinion in Boigegrain makes absolutely clear, Kjorlie acted appropriately and ethically, fulfilling his obligations to both the court and his client, when he reported his concerns about the mental competency of his client to the court. Notwithstanding this observation, it is clear to the court that there was a complete breakdown of communications between client and counsel and that irreconcilable differences existed between D'Armond and his appointed attorney. Consequently, Mr. Kjorlie was relieved of his appointment.

The court appointed Richard Lake to represent D'Armond. Because newly appointed counsel could not be expected to be prepared that day or in the near future, the court continued the pretrial motions hearing. As announced at the March 19 1999, hearing, the court finds that this period of delay is excludable under the Speedy Trial Act. Specifically, the court finds that the ends of justice served by granting this continuance outweigh the best interest of the public and the defendant in a speedy trial. See 18 U.S.C. § 3161(h)(8).

Suffice it to say that D'Armond grew dissatisfied with Mr. Lake and the representation he provided. On June 24, 1999, this court entered a memorandum and order granting D'Armond's "Motion for Appointment of New Counsel" (Dk.100). See (Dk.112). The court thanks Mr. Lake for accepting the appointment. Chris Cowger, another experienced member of the bar, was appointed to represent the defendant.

Motion to Dismiss Counsel (Dk.87); Response to Defendant's Motion to Dismiss Counsel [filed by defendant's appointed attorney, Steve Kessler] (89).

On April 19, 1999, Lindberg filed a hand-written pro se motion asking the court to appoint him new counsel. Steve Kessler, an experienced member of the federal bar, accepted the appointment to represent Lindberg in this case. Lindberg's complaints include: inability to reach counsel; defendant's belief that counsel is not "acting in my best interests," counsel "failed to make planned contact," and "failed to act or respond to specific requests." Lindberg's motion goes on to indicate that "a very healthy animosity has been built up on my part. I don't feel he is doing all he can. After seeing him in action at a bond hearing, and wasn't prepared, (I felt) I need a trial lawyer. I don't feel private lawyers that are appointed do all they can would like to request a public defender."

Kessler filed a response challenging the allegations of incompetence or inaction alleged by Lindberg. Kessler apparently believes he has made a reasonable effort to respond to Lindberg's calls, although Kessler notes that "Lindberg has called counsel's office collect numerous times, sometimes 5 to 6 times a day. Counsel's office has instructions not to accept the calls if counsel is not available." Kessler indicates that he has fulfilled all of the defendant's specific requests, with the exception of not filing a motion to dismiss on the basis of lack of jurisdiction "which in counsel's opinion would be frivolous."

On May 7, 1999, the court conducted a hearing to consider this motion. Both the defendant and the defendant's counsel agreed, upon further reflection, that their problems are not irreconcilable. At the suggestion of the court, the defendant and his counsel agreed to meet and work out any communication problems. The defendant's ...