The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
The defendant, Jeffrey Arenburg, who proceeded pro se at trial, was convicted of assault of a federal officer in violation of 18 U.S.C. § 111. Following trial, the defendant's standby counsel filed a motion for a new trial under Fed. R. Crim. P. 33 on the ground that the defendant was not competent to represent himself and suffered from a "paranoid thought process" during trial.*fn1 The government opposes the motion arguing that the defendant was competent to represent himself. For the reasons stated, the motion is denied.
On November 29, 2007, the defendant sought entry into the United States from Canada via the Peace Bridge in Buffalo, New York. The defendant did not have valid documentation for entry and was referred to secondary inspection. Customs and Border Protection Officer Jason Hart attempted to conduct a "pat down" of the defendant, during which the defendant punched Officer Hart in the face. The defendant was arrested and charged by criminal complaint with violating 18 U.S.C. § 111(b).
Counsel was appointed to represent the defendant. Upon counsel's request, United States Magistrate Judge H. Kenneth Schroeder, Jr., ordered that the defendant undergo an examination pursuant to 18 U.S.C. § § 4241 and 4242 to assess his mental competency to stand trial and conduct a criminal responsibility evaluation.*fn2 A criminal responsibility evaluation dated February 27, 2008 found that the defendant did not suffer from a mental defect but that he did suffer from a mental disease, specifically, Schizophrenia, Paranoid Type, in remission. However, the psychologist determined that the defendant's mental disease did not impair his ability to appreciate the wrongfulness of his conduct at the time that it occurred. A mental competency evaluation dated that same date found that the defendant did possess a rational and factual understanding of the proceedings against him, had the capacity to assist legal counsel in his defense and could rationally make decisions regarding legal strategy. Accordingly, the psychologist concluded that the defendant was competent to stand trial.
On April 3, 2008, an indictment was returned against the defendant charging him with assault of a federal officer in violation of 18 U.S.C. § 111(a) and (b). The defendant was arraigned on that same date. Following arraignment, the defendant expressed a desire to proceed pro se. Before determining whether the defendant could waive his right to counsel, Magistrate Judge Schroeder asked the defendant and his counsel whether they wanted to challenge the psychological reports. The defendant expressed a desire to waive his right to a competency hearing. Magistrate Judge Schroeder asked defendant's counsel whether, as an officer of the court, he saw anything in the reports that would cause him to want to challenge the competency determinations. Defense counsel indicated that he did not. The government also declined to challenge the reports. Magistrate Judge Schroeder found that the defendant understood the nature of the charges against him, was able to assist in his defense, and was competent to stand trial. He also found that the defendant made a knowing and voluntary waiver of his right to a competency hearing.
Magistrate Judge Schroeder then addressed the issue of the defendant's desire to proceed pro se. He engaged in a lengthy and comprehensive colloquy with the defendant on that issue that lasted over two hours. Magistrate Judge Schroeder advised the defendant of his rights at trial, including his right to proceed pro se, and the perils of doing so. The Magistrate Judge explained that the defendant had a right to challenge the government's evidence and to raise the issue of competency as a defense. The defendant indicated that he understood and that he had discussed the issue with his attorney. Tr.*fn3 at 39-40. He affirmed that he understood his right to proceed to trial and to cross-examine government witnesses, he understood the nature of the charges against him, and he understood the purpose of asking potential jurors questions in voir dire. He also understood the government's burden of proof. Magistrate Judge Schroeder explained that if the defendant were to proceed pro se, his attorney would be appointed as standby counsel to assist with procedural matters, but that standby counsel's role was very limited. The defendant affirmed that he understood.
Magistrate Judge Schroeder concluded his lengthy colloquy by asking counsel for the defendant and the government whether they believed further inquiry was needed on any issue. Counsel for the defendant stated:
Your Honor, I think your inquiry was right to the point and it incorporated all the thoughts of the case you mentioned and it is a classic pattern I think that should be adopted in the rules as a way to determine whether or not a person is entitled to be pro se, and I think the responses you elicited from Mr. Arenburg show that he is quite able to appear as his own attorney.
Tr. at 69. Counsel for the government stated that the inquiry was "very thoughtful and thorough." Based upon counsel's comments and the defendant's responses during the colloquy, Magistrate Judge Schroeder found that the defendant had made a knowing and intelligent waiver of his right to contest the competency report and a knowing and intelligent waiver of right to counsel. At the conclusion of that proceeding the defendant requested an immediate trial.
On April 7, 2007, the parties appeared before this Court for a meeting to set a trial date. The Court inquired into whether the defendant had changed his mind on the issue of proceeding pro se, and the defendant stated that he had not. The defendant did not exhibit any unusual behavior, appeared coherent and responded appropriately to the Court's questions.*fn4
The parties next appeared on May 15, 2008 for a final pretrial conference. The defendant asked for the return of some personal property that had been taken from him upon his arrest, asked permission to wear his own clothes (and not prison garb) during trial and requested to be returned to his cell promptly after each day of trial so that he could prepare for the next day's proceedings. The defendant also requested a physical examination by a doctor as part of his defense.*fn5 Again, the defendant did not exhibit any unusual behavior, appeared coherent and responded appropriately to the Court's inquiry. At no time was any issue raised by any party as to the defendant's competency to stand trial or his ability to represent himself.
Trial commenced five days later, on May 20, 2008. According to the government, immediately before jury selection, the parties had one last discussion about the possibility of a plea. Although the defendant rejected the government's plea offer, the government represents in its papers that the ...