The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This case was referred by text order of the undersigned, docketed on December 13, 2011, ECF No. 2, to Magistrate Judge Marian W. Payson, pursuant to 28 U.S.C. §636(b)(1)(A)-(B). On January 13, 2012, Defendant's counsel, Robert G. Smith, Assistant Federal Public Defender, filed a motion to withdraw, ECF No. 61. On March 5, 2012, Magistrate Judge Payson delivered an oral Decision and Order , ECF No. 76, denying Mr. Smith's application to withdraw. On March 6, 2012, Mr. Smith filed a Notice of Appeal to district court as to Judge Payson's March 5, 2012 Decision and Order. Upon a consideration of the Decision and Order, and after considering Defendant's arguments, the Court finds that Judge Payson's Decision and Order denying defense counsel's motion to withdraw was neither clearly erroneous nor contrary to law. Therefore, defense counsel's motion to withdraw is denied.
In his application to stay the proceedings, pending appeal to this Court of Judge Payson's denial of his motion to withdraw, Mr. Smith set forth the relevant background of this case:
4. Mr. Barton, along with Shawn Rickard, has been charged in a seven count superseding indictment conspiracy to manufacture 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation 21 U.S.C. § 846; unlawfully manufacturing 500 grams or more of a mixture and substance containing detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), and 18 U.S.C. § 2; knowingly possessing with intent to distribute a substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)©, and 18 U.S.C. § 2; possessing a quantity of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(D), and 18 U.S.C. § 2; using and maintaining a premises for the manufacture, distribution, and use of methamphetamine, in violation 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; possessing firearms in furtherance of drug trafficking crimes, in violation of 18 U.S.C. §§ 924(c)(1) & 2 (Docket Item 68). Count VII of the superseding indictment pertained only to defendant Shawn Rickard (Docket Item 68, at 6). The superseding indictment also contained a forfeiture allegation pertaining to the firearms (Docket Item 68, at 7-8). On December 13, 2011, the case was referred to United States Magistrate Judge Marian W. Payson for all pretrial matters pursuant to 28 U.S.C. §§ 636(b)(1)(A) & (b)(1)(B).
5. On July 14, 2011, then Assistant Federal Public Defender Elizabeth J. Switzer "stood in" to represent Mr. Barton. After Ms. Switzer left the Federal Public Defender's Office your Affiant assumed responsibility for Mr. Barton's case (see Docket Item 27 (Notice of Appearance)). Your Affiant was formally appointed to represent Mr. Barton on December 7, 2011 (see Docket Item 53). Mr. Barton has repeatedly refused to meet and communicate with appointed counsel, forcing your Affiant to move to withdraw from representing this client (Docket Item 61).
6. At his initial appearance, Mr. Barton informed the Magistrate Judge that he intended to retain counsel. At subsequent appearances on July 19, 2011, August 3, 2011, August 15, 2011, Mr. Barton informed the Court that he had not yet retained counsel. On January 11, 2012, Mr. Barton made a request to the District Court that the proceedings be adjourned to allow him the opportunity to obtain his own lawyer (see Docket Item 60). The adjournment was granted. The Court also appointed Mr. James Wolford, Esq., to assist Mr. Barton in considering his options regarding his representation (Docket Item 69). On February 13, 2012, Mr. Barton appeared before the Magistrate Judge and refused to answer any questions regarding his attempts to obtain counsel (Docket Item 73). The Magistrate Judge ordered Mr. Barton to meet with Mr. James Wolford, Esq., to discuss his options regarding representation.
7. On March 5, 2012, the Court denied your Affiant's motion to withdraw from representing Mr. Barton, and scheduled a detention hearing for March 12, 2012. A Notice of Appeal has been filed so that Defense Counsel may appeal the Magistrate Judge's order denying Defense Counsel's motion to withdraw from representing Mr. Barton.
8. Your affiant now moves the Court for an Order (see Ex. A (proposed order)) to hold the detention hearing, and all further proceedings, in abeyance pending final disposition of the appeal of the Magistrate Judge's order of March 5, 2012.
9. Defense Counsel's appeal of the Magistrate Judge's Order of March 5, 2012, is pending before this Court. This appeal pertains to whether Defense Counsel should continue to represent Mr. Barton, or whether Mr. Barton should proceed pro se. Mr. Barton has rebuffed all efforts of Defense Counsel to communicate with him. The Magistrate Judge now wishes to move forward with the detention hearing, and to have Your Affiant continue to represent Mr. Barton. To force Defense Counsel to go forward with detention hearing while the appeal of the March 5, 2012, Order is pending would violate Mr. Barton's constitutional rights and force defense counsel to violate his ethical obligations.
10. Without adequately addressing the issue, as set forth in Counsel's motion to withdraw, the Court is denying Mr. Barton his right to proceed pro se. See generally Faretta v. California, 422 U.S. 806, 820 (1975) (explaining that, "[t]he language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the amendment, shall be an aid to a willing defendant-not an organ of the State interposed between an unwilling defendant and his right to defend himself personally."). Though Mr. Barton has expressed an interest in being represented by counsel of his choosing, his actions demonstrate that he may wish to represent himself rather than be represented by court-appointed counsel (see, e.g., Docket Item 25 (pro se motion to dismiss)).
11. By ordering Defense Counsel to participate in the detention hearing when it is known that counsel has not been able to adequately prepare for the proceedings, the Court is effectively denying Mr. Barton his right to effective legal assistance. Furthermore, Mr. Barton has a right to a single detention hearing. If Mr. Barton were to be detained following this hearing, a realistic possibility, then he would be required to establish new facts, not just newly discovered facts, to reopen the detention hearing. Thus, it is not in Mr. Barton's best interest to proceed with a lawyer who is not prepared to face a hearing that was not requested by either defense counsel, the defendant, or the government.
12. Mr. Barton's refusal to communicate with Defense Counsel also makes it impossible for Counsel to represent Mr. Barton at the Detention Hearing. Counsel is not in any position to address the issues that will arise during the hearing, such as "whether there are conditions of release that will reasonably assure the appearance" of Mr. Barton. See generally 18 U.S.C. § 3142(g) (factors to be considered). Your Affiant is unable to address Mr. Barton's history and characteristics. See id. § 3142(g)(3). While a competency report has been completed, Defense Counsel will not be able to address the report because he has not been able to discuss the finding with Mr. Barton. Mr. Barton's mental condition is a factor that must be taken into consideration. See id. § 3142(g)(3)(A).
13. Furthermore, Defense Counsel cannot advocate a position for Mr. Barton regarding potential condition of release because Counsel has an ethical problem pertaining to his representation as set forth in Rule 1.2(a) of the Rules of Professional Conduct. Addressing the scope of representation and the allocation of authority between and client and lawyer, Rule 1.2 directs that "a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued." Rule 1.2(a) goes on to state that, "[i]n a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to the plea to be entered, whether to waive jury trial and whether the client will testify." Counsel has not been able to consult with Mr. Barton as to the objectives of representation. Therefore, Defense Counsel cannot proceed before the Magistrate Judge.
Robert G. Smith's Notice of Motion Seeking an Order Staying the Detention Hearing, March 9, 2012, ECF No. 78 (emphasis added).
In determining that Judge Payson's decision to deny Mr. Smith's motion to withdraw was neither clearly erroneous or contrary to law, the Court has been guided by three cases from three different circuits. First, the Court considered McKee v. Harris, 649 F.2d 927, 2nd Cir. 1981). In McKee, the Second Circuit wrote:
McKee contends that in electing to represent himself with the help of a legal advisor he was "given no freedom of choice," but rather was "bowing to the inevitable." Appellant's Br. at 15-16 (quoting*931 United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755-56 (2d Cir. 1975)). Of course, the very essence of a voluntary waiver is that it be the product of a free and meaningful choice. Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 196, 2 L.Ed.2d 167 (1957); Wilks v. Israel, 627 F.2d 32, 35 (7th Cir. 1980); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976). This does not mean, however, that a court may not, under certain circumstances, require the defendant to select from a limited set of options a course of conduct regarding his representation. "A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive." Maynard v. Meachum, supra, 545 F.2d at 278. See also Wilks v. Israel, supra, 627 F.2d at 35; United States v. Davis, 604 F.2d 474, 483 (7th Cir. 1979); United States ex rel. Testamark v. Vincent, 496 F.2d 641, 643-44 (2d Cir. 1974), cert. denied, 421 U.S. 951, 95 S.Ct. 1685, 44 L.Ed.2d 105 (1975); United States v. Morrissey, 461 F.2d 666, 670 (2d Cir. 1972). "That petitioner did not particularly like the choice presented to him and that he did not want to proceed pro se are not sufficient reasons to render the choice ...