that appointment of new counsel would only result in a needless delay and the development of
similar conflicts between Patterson and his new attorney(s).

As part of their motions to withdraw, Ms. Evans and Mr. Camarena have urged that
Patterson’s threats against them have created an actual or per se conflict of interest, tendering them
unable to continue as defense counsel. In John Doe #1, the Second Circuit considered a denial of
a defense attorneys motion for leave to withdraw on the basis that his a conflict had been created
by the defendant's “extremely aggressive” behavior that, at times, “vergled] on uncontrollable
violence.” John Doe #1, 272 F.3d at 120. During the course of his representation, the defendant
had “repeatedly grown so agitated and hostile — shouting, screaming, throwing papers and around
the room making intimidating approaches to counsel.” Id. The attorney reported that the defendant
had also made veiled threats against him, such that he feared for his personal safety as well as that
of his family. Id. Nevertheless, the court rejected a claim that the defendant had received
ineffective assistance of counsel as a result of a conflict of interest between him and his attorney.
Identifying three types of conflicts of interest, the Second Circuit held that a per se conflict requiring
automatic reversal without a showing of prejudice only exists where trial counsel is (1) not authorized
to practice law or (2) implicated in the crime for which the defendant is on trial. Id. at 125, citing
Armienti v. United States, 234 F.3d 820, 823 (2d Cir. 2000); United States v. Cancilla, 725 F.2d 867,
870 (2d Cir. 1984); Waterhouse v. Rodriguez, 848 F.2d 375, 383 (2d Cir. 1988). The court also
rejected a claim that there was an actual conflict of interest, carrying a presumption of prejudice.
John Doe #1, 272 F.3d at 125-26. Such a conflict exists “when, during the course of the
representation, the attorney's and defendant's interests diverge with respect to a material factual or
legal issue or to a course of action.” Id. at 126, quoting Armienti, 234 F.3d at 824. Although the

5


CONCLUSION
For the reasons discussed above, defense counsel’s motion for leave to withdraw, and

Defendant’s motions for leave to proceed pro se and to continue the trial date are all denied.

ENTER:

Dated: July 1, 2005

10


of his choice, where he has shown an unwillingness to cooperate with any counsel. See Levine, 794
F.2d at 1206 (“[I]t remains clear that, since a defendant may waive his right to be represented by
counsel altogether, there is no basis to say that a defendant cannot waive the right to counsel free
from even serious conflict of interest.”).

For their part, defense counsel do not enjoy an absolute right to withdraw, even in situations
in which their defendant’s behavior has been violent or threatening. In Hall v. Washington, 106 F.3d
742 (7th Cir. 1997), the Seventh Circuit consider a trial court's denial of a defense attorney's motion
to withdraw in circumstances far more egregious than the present. In Hall, the defendant physically
assaulted defense counsel the day before trial, striking counsel on the head with a chair. Id. at 745.
Noting that, despite this incident and defense counsel’s understandable fears, the defendant had
routinely passed notes and made oral suggestions to his counsel regarding his defense, the court
concluded that counsel and defendant were not “so at odds as to prevent presentation of an adequate
defense.” Id. at 751, quoting Walker, 9 F.3d at 1251. Regarding the safety concerns of defense
counsel, the court cautioned that the attorneys themselves did not have an unfettered right to
withdraw:

Where, as here, a motion to withdraw is denied, counsel are not free to ignore the

court’s finding because of their personal dislike for their client. While [defendant]

was certainly not an ideal client, counsel were still required to provide

constitutionally adequate representation until such time as the court excused them.

Hall, 106 F.3d at 751. Similarly, this court expects that Ms. Evans and Mr. Camarena will recognize

their professional responsibilities to Mr. Patterson, and provide vigorous and effective representation

unless excused by the court.


court allowed that the defendant and his counsel had disagreed as to certain aspects of his defense,
the court concluded that a defendant “cannot establish an actual conflict of interest merely by
“expressing dissatisfaction with [the] attorney's performance.” Id., quoting United States v. Moree, 220
F.3d 65, 71 (2d Cir. 2000). On this point, the court recognized the potentially dangerous
consequences of allowing criminal defendants to create conflicts in such a manner:

Additionally, we agree with the government that defining conduct of a threatening

or violent nature as creating an actual conflict of interest would potentially encourage

defendants to take such action in the hopes of having an avenue to later seek reversal

of a conviction.>
Id. at 126. This court concurs in the Second Circuit's assessment. While sympathetic to the plight
of Ms. Evans and Mr. Camarena, the court is loathe to reward Mr. Patterson's conduct and allow Mr.
Patterson to manipulate and abuse the system of justice in an effort to achieve his aims by extralegal
methods.

Importantly, the Sixth Amendment right belongs to Patterson, not his defense counsel.
Moreover, this right may be waived by a defendant’s own conduct. See United States v. Levine, 794
F.2d 1203, 1206 (7th Cir. 1986), citing United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975)
(holding that defendant had waived his right to conflict-free reorientation when he deliberately
creating a conflict of interest by discharging his public defender and retaining private counsel with

whom there existed a conflict of interest). In light of the fact that a defendant can waive his right

to representation, the court believes that a defendant may correspondingly waive his right to counsel

; The court also expressed the possibility that such threats of violence would only

increase defense counsel’s motivation to obtain an acquittal, thus placating his angry client. Id.
Perhaps for this reason, the Seventh Circuit does not appear to have treated this issue as a conflict
of interest.


States v. Chavin, 316 F.3d 666, 671 (7th Cir. 2002) (citations omitted). Although within the
discretion of the court, hybrid representation is “disfavored.” Id.; citing United States v. Kosmel, 272
F.3d 501, 506 (7th Cir. 2001); Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992); United States v.
Oakey, 853 F.3d 551, 553 (7th Cir. 1988). Such representation “allows a defendant to address the
jury, in his capacity as counsel, without being cross-examined, in his capacity as defendant.” Chavin,
316 F.3d at 671; Oakey, 853 F.2d 553. In pretrial proceedings, Patterson has insisted on expressing
his views about law enforcement, his unfortunate history with the criminal justice system, and his
baseless conspiracy theories. The court presumes he would make similar pronouncements during the
jury proceedings, were he permitted to represent himself. These considerations only add to the
court’s reluctance to allow Mr. Patterson to proceed pro se, whether on his own or with assistance
from co-counsel. Defendant’s motion is denied.
Ill. Defendant’s Motion for a Continuance

Although a court “may not arbitrarily deny a criminal defendant the right to retain his own
counsel . . . it [is] not required to allow a last-minute change in counsel to disrupt its schedule.”
Cole, 988 F.2d at 683; United States v. Solina, 733 F.2d 1208, 1211 (7th Cir. 1984). In both Cole and
Solina, the Seventh Circuit upheld a district court's refusal to grant a continuance for retained
counsel to prepare for trial when competent appointed counsel was prepared to proceed to trial as
scheduled. Cole, 988 F.2d at 684; Solina, 733 F.2d at 1211. The court has already granted two
continuances in this case, pushing the trial back from an original start date in February to late May
and then again, at Defendant’s urging, to June 30. Having denied defense counsel's motion for leave
to withdraw, and Patterson’s motion for leave to proceed pro se, the court sees no need to delay the

trial any further.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA )
Vv. No. 04 CR 0705
AARON PATTERSON and Judge Rebecca R. Pallmeyer
MARK MANNIE )

MEMORANDU PIN) IRDER

Defendants Aaron Patterson and Mark Mannie are charged in a thirteen-count indictment
with conspiracy to distribute heroin and marijuana, possession with intent to distribute heroin and
marijuana, and illegal possession of a firearm, all stemming from a series of incidents between March
and August 2004. On what was scheduled to be the first day of jury selection, June 30, 2005,
Defendant Patterson moved for leave to proceed pro se. Upon being informed that the court would
only accept motions made through his counsel, Patterson demanded that his attorneys withdraw
from his case. During his angry outburst, Patterson announced that his supporters would protest
outside the homes of his defense attorneys, and loudly recited his attorneys’ addresses to the court
audience. Following Patterson’s removal from the courtroom, his court-appointed attorneys
Demitrus Evans and Paul Camarena moved for leave to withdraw, citing Patterson’s outburst as
having created a conflict of interest interfering with their ability to effectively represent their client.
Patterson has also moved to continue the trial to a later date. The court will address these motions
in turn.

DISCUSSION

1 Defense Counsel’s Motion to Withdraw

The Sixth Amendment to the Constitution provides, in pertinent part, that “[i]n all criminal

prosecutions, the accused shall enjoy the right... . to have the Assistance of Counsel for his defence.”


IL. Defendant’s Motion to Proceed Pro Se

The Supreme Court has recognized that “[i]mplicit in the Sixth Amendment right to counsel
is the defendant's right to self-representation.” United States v. Brock, 159 F.3d 1077, 1079 (7th Cir.
1998), citing Faretta v. California, 422 U.S. 806 (1975). The right to self-representation is not,
however, absolute. A court “may terminate self-representation by a defendant who deliberately
engages in serious and obstructionist misconduct.” Brock, 159 F.3d at 1079, citing Faretta, 422 U.S.
at 835 n.46.

In light of Mr. Patterson’s persistent refusal to obey even the most basic standards of
courtroom decency, the court has no difficulty concluding that he has forfeited his right to self-
representation. Although Patterson’s behavior has thus far only interrupted the pretrial portions of
the current proceedings, he has shown no indication that he will be willing to comport himself with
decency and respect befitting this courtroom during the trial. See Brock, 159 F.3d at 1080 (upholding
trial court's denial of defendant’s request to proceed pro se based on pretrial conduct where trial court
had concluded that “there was a strong possibility that [the defendant] would continue to be
disruptive at trial”). In addition, the court believes it has an obligation to protect the jurors from the
types of threats that Patterson has made against his attorneys. To allow such behavior would make
a mockery of the judicial proceedings and could threaten the integrity of the jury process. As
importantly, allowing Mr. Patterson to represent himself could prejudice his co-defendant, Mr.
Mannie.

For these same reasons, the court is not inclined to allow Mr. Patterson to proceed pro se with
the assistance of co-counsel in a “hybrid representation.” It is well-recognized that the Sixth

Amendment does not guarantee a criminal defendant the right to hybrid representation. United

8


active a role — and the court has confidence, despite defense counsel’s misgivings, that they are
capable of continuing to represent him effectively. Indeed, immediately after this court's oral denial
of defense counsel's motion to withdraw, and after he had earlier in the day expressed fear for the
safety of his family, Mr. Camarena was able to effective advocate on behalf of Patterson’s right of self-
representation. Defense counsel have a professional obligation to represent Mr. Patterson to the best
of their abilities, and the court believes they are capable of meeting that obligation.

Finally, the court considers whether Patterson himself “substantially and unjustifiably
contributed to the breakdown in communication” between him and his attorneys and “whether the
allegedly irreconcilable differences can be largely attributed to [his own actions].” John Doe #1, 272
F.3d at 124, citing Romero, 215 F.3d at 1113. There is little doubt here that Patterson himself has
created all of the problems with his attorneys by refusing to cooperate with them and by making
threatening remarks against them in open court. The conflicts between Mr. Patterson and his
lawyers are entirely of Mr. Patterson’s own creation. A grant of his motion for continuance, and
subsequent appointment of new counsel, is unlikely to resolve these issues so long as Mr. Patterson

is determined to do everything within his power to delay his trial.?- Regrettably, the court believes

: In addition, to the extent that Patterson’s conflicts with his counsel are not merely
delay tactics, his disagreements over trial strategy have revolved around his insistence to present
certain defenses — entrapment, public authority, selective prosecution — that have been already
precluded by this court as having no basis in law. Such disagreements will inevitably arise anew
should the court appoint new counsel. See United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir.
1990) (rejecting habeas challenge to denial of motion for leave to withdraw from case where
irreconcilable differences cited in support of the motion consisted involved defendant's insistence
on presenting a defense with no legal validity). Moreover, for reasons explained below, the court is
unwilling to accede to Mr. Patterson's desire to proceed pro se.

4


Employing this four-part approach, neither Patterson nor his counsel can maintain that their
motions are timely, coming as they did on what was scheduled to be the first day of jury selection.
As to the second factor, whether the court has adequately inquired into the conflict, Mr. Patterson's
threat to organize a protest at the homes of his two defense attorneys was made on the record in open
court.! Following the outburst, the court met with Defendant and defense counsel (with the
government's representatives present) to hear their motions. Attorney Paul Camarena cited Mr.
Patterson's potentially threatening behavior. The court is aware, further, of Mr. Patterson’s
purported suspicion that Mr. Camarena’s appointment to represent here is somehow suspect, a
suspicion that is factually baseless. Attorney Demitrus Evans cited her own fears Mr. Patterson’s
refusal to come to court voluntarily, and his failure to honor her advice that he wear street clothing
rather than his prison attire in the courtroom. The court is familiar with each of these matters and
concludes, with respect to the third factor, that the conflict between Patterson and his counsel is not
“so great that it [has] resulted in a total lack of communication preventing an adequate defense.”
Cole, 988 F.2d at 683, quoting Morris, 714 F.2d at 673; John Doe #1, 272 F.3d at 124, quoting United
States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001). Counsel have not identified any specific legal
or factual issues on which they need input from Mr. Patterson and, although the rift between him
and his attorneys has been heated of late, it does not appear to the court that these conflicts have
prevented Patterson and his attorneys from conferring regarding matters related to his defense. To

the contrary, Patterson has by all accounts taken an active role in his defense — perhaps at times too

' Mr. Patterson, it should be noted, is himself in custody. Presumably, his threat, to the

extent it is credible, would be carried out by his supporters, some of whom have attended court
hearings in this case.


U.S. CONST. amend. VI. This guarantee of effective assistance of counsel encompasses a right to
conflict-ftee representation. Griffin v. Camp, 40 F.3d 170, 173 (7th Cir. 1994), citing Cuyler v.
Sullivan, 446 U.S, 335 (1980). The right to conflict-free representation does not, however, guarantee
a “meaningful relationship” between the defendant and his counsel. See Morris v. Slappy, 461 U.S.
1, 13-14 (1983). “Attorney-client conflicts only justify the grant of a substitution motion when
‘counsel and defendant are so at odds as to prevent presentation of an adequate defense.” United
States v. Walker, 9 F.3d 1245, 1251 (7th Cir. 1993), citing United States v. Morrison, 946 F.2d 484, 498
(7th Cir. 1991).

In considering an attorney's motion for leave to withdraw, the court has an obligation to fully
investigate the reasons underlying the request. After having done so, the court has the discretion
to deny the motion “{u]nless there is a demonstrated conflict of interests or counsel and defendant
are embroiled in an ‘irreconcilable conflict’ that is ‘so great that it resulted in a total lack of
communication preventing an adequate defense.” United States v. Cole, 988 F.2d 681, 683 (7th Cir.
1993), quoting United States v. Morris, 714 F.2d 669, 673 (7th Cir. 1983). The Second and Tenth
Circuits have identified a four-part test evaluating the propriety of a court’s denial of a motion to
substitute counsel. This test examines: (1) whether the defendant made a timely motion requesting
new counsel; (2) whether the trial court adequately inquired into the reasons underlying the conflict;
(3) whether the conflict between the defendant and his attorney was so great that it resulted in a
“total lack of communication preventing an adequate defense”; and (4) whether the defendant
himself “substantially and unjustifiably contributed to the breakdown in communication.” United
States v. John Doe #1, 272 F.3d 116, 122-23 (2d Cir. 2001) (citations omitted); Romero v. Furlong,
215 F.3d 1107, 1113 (10th Cir. 2000) (citations omitted).

2