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United States of America v. Gregory Joel Sitzmann

November 28, 2011


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This matter is before the Court on defendant Gregory Joel Sitzmann's motion to proceed pro se in this criminal case. The government opposes the motion. Mr. Sitzmann also has filed a motion in which he requests that the Court replace his current court-appointed counsel, attorney Thomas Abbenante, with substitute counsel. Upon consideration of the parties' papers, the relevant legal authorities, the arguments presented, and the entire record in this case, the Court concludes that Mr. Sitzmann has not clearly and unequivocally asserted his right to proceed pro se. The Court therefore will deny his motion to proceed pro se. The Court also will deny Mr. Sitzmann's motion to replace Mr. Abbenante with substitute counsel.*fn1


Gregory Joel Sitzmann was indicted on August 7, 2008, charged with a single count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. See Indictment at 1, Aug. 7, 2008 [Dkt. No. 2]. The conspiracy is alleged to have spanned at least 14 years and have taken place in at least eight countries. Id. At his initial appearance before Magistrate Judge Alan Kay on August 11, 2008, Mr. Sitzmann stated that he wished to proceed pro se. He also requested that attorney Joseph Virgilio, who had represented Mr. Sitzmann during the pre-indictment investigation, be appointed as standby counsel; Judge Kay reserved final ruling on Mr. Sitzmann's requests. See Minute Entry, Aug. 11, 2008.

On August 18, 2008, the Court received a letter from Mr. Sitzmann that expressed his dissatisfaction with Mr. Virgilio. Opp., Ex. 3 at 2. In the letter, Mr. Sitzmann stated:

I was and am convinced that Mr. Virgilio [sic] only interest is to "assist" in my pleading guilty and in appeasing the AUSA. . . . I ask that you please appoint someone else to represent (or assist) me before your court. All I ask is someone that would be willing to answer my legal question . . . . If I had faith that someone was doing this I would seriously consider changing my pro-se status. . . . I only asked to go pro-se because I had no other choise [sic].

Id. (emphasis in original).

During a status conference before this Court on August 25, 2008, Mr. Sitzmann was permitted to proceed pro se with attorney Joseph E. Beshouri's assistance. See Minute Entry, Aug. 25, 2008. At that status conference, Mr. Sitzmann stated, "I feel that I will have no problem going forward with [Mr. Beshouri], but at this time, because I haven't had much time to speak with him, I would like to proceed pro se, but leave it open at a later date to change that position if I could." Hr'g Tr. at 3, Aug. 25, 2008. Mr. Beshouri added that he and Mr. Sitzmann "agreed to some basic ground rules for going forward . . . . neither of us will file anything with the Court without the other knowing it[.]" Id. at 6. The Court refrained from engaging Mr. Sitzmann in a colloquy regarding his pro se status at that time; both sides agreed that the Court could perform its colloquy at the next status conference. See id. at 10.

On September 23, 2008, the Court engaged in a colloquy with Mr. Sitzmann about self-representation during which Mr. Sitzmann stated, "I would like to proceed just as I said the last time with you, proceeding pro se until I can find out something else." Hr'g Tr. at 3, Sept. 23, 2008 [Dkt. No. 54]; see also Minute Entry, Sept. 23, 2008. When asked why he wanted to represent himself, Mr. Sitzmann replied: "[B]ecause right now the situation is, the first attorney [Mr. Virgilio] that was appointed to me I think at the very least was - to say was not even helping me." Hr'g Tr. at 4, Sept. 23, 2008 [Dkt. No. 54]. When asked what his thoughts were on Mr. Beshouri, Mr. Sitzmann replied: "[A]t this point I had asked to go pro se because I had no other choice. . . . [B]ut by the time we have the next conference I think that we will be able to make a decision on it for you." Id. at 5.

On October 17, 2008, Mr. Sitzmann filed a pro se motion for replacement of standby counsel, see Mot. for Replacement of Stand-By Counsel at 1, Oct. 17, 2008 [Dkt. No. 13]; Mr. Beshouri, however, continued to file motions on behalf of Mr. Sitzmann, including one filed on October 31, 2008. See Dkt. No. 15. On November 3, 2008, the Court received a letter from Mr. Sitzmann in support of his request to replace Mr. Beshouri. See Letter from Gregory J. Sitzmann to the Court, Nov. 3, 2008.*fn2 In this letter, Mr. Sitzmann stated that he requested that Mr. Beshouri be dismissed because: (1) Mr. Beshouri was unable to procure Mr. Sitzmann's release from protective custody for over a month; (2) Mr. Beshouri did not permit Mr. Sitzmann to make specific requests to a private investigator without Mr. Beshouri's permission - although permission was given in the one instance Mr. Sitzmann discussed; and (3) Mr. Beshouri was not providing discovery materials to Mr. Sitzmann at the rate Mr. Sitzmann would like. See id. at 5.

The Court held a status conference on November 3, 2008, in part to discuss Mr. Sitzmann's request. See Hr'g Tr. at 2, Nov. 3, 2008 [Dkt. No. 50]. There, Mr. Beshouri represented that Mr. Sitzmann had expressed displeasure at the delay in transferring Mr. Sitzmann from protective custody to the general population at the D.C. Jail. Id. at 4. Mr. Sitzmann also indicated that he was displeased with the motions Mr. Beshouri was filing on his behalf. See id. at 7. After the Court refused to grant Mr. Sitzmann's request to receive a third standby counsel and presented him with the choice between proceeding on his own or with Mr. Beshouri's assistance, Mr Sitzmann stated: "At this point if we can go ahead and see if we can work this out, I'd rather go ahead with Mr. Beshouri. By no means have I thought that Mr. Beshouri is not a competent attorney." Id. at 9.

Mr. Sitzmann reiterated his position at another status conference on November 7, 2008, stating, "I spoke with Mr. Beshouri and we worked everything out, and I can almost assure the Court that it would not be filed again, any type of motion like that." Hr'g Tr. at 2, Nov. 7, 2008 [Dkt. No. 55]. Mr. Beshouri stated: "I don't want to ask the Court to get in the middle of these disputes, but I have advised Mr. Sitzmann that in the future I will not be able to stand by if he should make claims that I think have no grounding in fact . . . . [W]ith that said, it seems as though things are fine now between Mr. Sitzmann and me." Id. at 3.

Mr. Sitzmann then sent the Court a letter, which it received on December 24, 2008. In the letter, Mr. Sitzmann announced his desire not to proceed pro se and to retain a new attorney with his own funds or funds provided by an associate. See Opp., Ex. 5 at 1-2. He stated that when he "agreed[] to allow Joe Beshouri to continue as stand-by counsil [sic] . . . . [he] believed [he] would be able to retain private counsil [sic] before the next hearing[.]" Id. at 1.

On January 5, 2009, the Court received a motion "for reconsideration of replacing stand by counsel." Motion for Reconsideration at 1, Filed with the Court on Jan. 14, 2009 [Dkt. No. 22]. In this motion, Mr. Sitzmann represented that he had filed a complaint with the District of Columbia Bar against Mr. Beshouri (1) because Mr. Beshouri would not hire the private investigation firm Mr. Sitzmann requested; (2) because of alleged improper conduct between Mr. Beshouri and a private investigation firm; and (3) because of the above-stated delay in releasing Mr. Sitzmann from protective custody. See id. at 1-3. But at a status conference that same day, Mr. Sitzmann stated that "things ha[d] changed[,]" Hr'g Tr. at 3-4, Jan. 5, 2009 [Dkt. No. 56], and he provided the Court with a letter requesting to withdraw his renewed motion to replace standby counsel. Letter from Gregory J. Sitzmann to the Court, Jan. 4, 2009; see also Hr'g Tr. at 3, Jan. 5, 2009 [Dkt. No. 56]. Mr. Sitzmann also reaffirmed that he had intended to retain his own counsel from the start, but felt he could not do so while in protective custody. See Hr'g Tr. at 4-5, Jan. 5, 2009 [Dkt. No. 56]. Mr. Sitzmann also asked that "[i]f we do need local counsel, can Mr. Beshouri stay in on that?" Id. at 16.

At a status conference on February 3, 2009, Mr. Sitzmann represented to the Court that he had engaged attorney Richard Klugh. Hr'g Tr. at 2, Feb. 3, 2009. He stated: "What I'd like to do is when he comes on-board, which is pro se, but be counsel, co-counsel with Mr. Klugh." Hr'g Tr. at 8, Feb. 3, 2009. The Court expressed doubt:

I don't think you have a constitutional right to be co-counsel, whether with a retained or an appointed lawyer. . . . So you should operate on the assumption for now that there's a very good chance that you will not be able to be co-counsel. Either he's going to be your lawyer of record and you will be a client and nothing more, or you're going to be pro se. And you'll have stand-by counsel, whether it's Mr. Klugh or Mr. Beshouri.

Id. at 9-10.

On February 26, 2009, Mr. Beshouri filed a motion to withdraw from the case because he had been selected to become a Magistrate Judge in the Superior Court of the District of Columbia. Motion to Withdraw at 1, Feb. 26, 2009 [Dkt. No. 35]. In that motion, Mr. Beshouri stated that he had learned, on January 6, 2009 - the day after Mr. Sitzmann had represented to the Court that he would like to continue with Mr. Beshouri if possible and two days after he requested by letter to the Court that his renewed motion to replace Mr. Beshouri be withdrawn - that "Mr. Sitzmann wrote to Assistant United States Attorney George Eliopoulos and requested that [Mr. Eliopoulos] 'have no more contact with Mr. Beshouri - the court appointed stand-by counsel. That in the future all communications and or contact be thru [Mr. Sitzmann.]'" Id. at 2. The Court granted Mr. Beshouri's motion to withdraw on March 19, 2009.

At a status conference on March 18, 2009, Mr. Klugh appeared and stated that his "intention is to become the counsel, ordinary, regular counsel in the case." Hr'g Tr. at 7, Mar. 18, 2009 [Dkt. No. 57]. He added, "it's clearly our intention to completely cover the field and not leave any attorney room for Mr. Sitzmann in this. He would have plenty of client room, but no attorney room." Id. at 9. The Court then addressed Mr. Sitzmann to confirm his understanding that he was not permitted to be co-counsel with Mr. Klugh; Mr. Sitzmann replied, "[a]s I wrote in my January 5th letter to you, that was my intention from the beginning." Id. at 12. Mr. Sitzmann added: "My intention is for [Mr. Klugh] to handle the case and any legal aspect, and I will not have any intention of filing anything pro se or being involved in it." Id. During the hearing, Mr. Klugh stated he could not become counsel of record until he had assurance that Mr. Sitzmann, or an associate, would in fact be able to compensate him for his services; he stated that he expected the matter to be resolved within ten days. See id. at 8-10.

Mr. Klugh, however, did not begin to represent Mr. Sitzmann as counsel of record for many months. Instead, on May 11, 2009, attorney Mark Carroll appeared as standby counsel for Mr. Sitzmann. During a sealed status conference on May 22, 2009, Mr. Carroll stated that Mr. Klugh had not been paid and that Mr. Sitzmann was unwilling to proceed with Mr. Carroll as appointed counsel because Mr. Sitzmann intended to continue to file motions on his own behalf. Yet as standby counsel, Mr. Carroll filed a bond motion on behalf of Mr. Sitzmann, see Def.

Mot. to Modify Conditions of Release at 6, Oct. 7, 2009 [Dkt. No. 43], and continued to speak on his behalf during status conferences. See Hr'g Tr. at 17-18, July 27, 2009 [Dkt. No. 52]. On December 18, 2009, Mr. Carroll filed a motion to withdraw, which was granted on January 5, 2010.

Mr. Klugh entered a formal appearance as counsel for Mr. Sitzmann on December 29, 2009. After entering the case, Mr. Klugh re-filed a number of motions on issues that had already been briefed and argued before the Court. He presented oral argument on numerous motions during a lengthy motions hearing on July 12, 2010. See Minute Entry, July 12, 2010; see also Dkt. No. 85. Mr. Klugh continued to represent Mr. Sitzmann until February 2, 2011, when he orally moved to withdraw from the case on the ground that there was a potential conflict of interest. See Hr'g Tr. at 80, Feb. 2, 2011 [Dkt. No. 102]. Mr. Klugh again expressed his belief that he should withdraw as counsel at a status conference on April 7, 2011. See Hr'g Tr. at 24, Apr. 7, 2011 [Dkt. No. 105]. The Court responded:

[I]f you are ready to decide that you think the better course is to withdraw, then go ahead and withdraw . . . . If you are ready to make that decision, make that decision. Talk to your client, put it in writing, withdraw. . . . It's up to you. So when can we talk again to have an answer to that question from you, what your role is going to be, what Mr. Bergendahl's [Mr. Klugh's retained co-counsel] role is going to be? And then we can move on to either proceed with one or both of you or proceed with neither of you and get somebody else in full time to represent Mr. Sitzmann. But I do think you need to think about it and talk to each other and Mr. Sitzmann.

Id. at 31, 33.

On April 10, 2011, Mr. Sitzmann sent the Court a letter in which he questioned Mr. Klugh's ability to provide effective representation due to alleged psychological and financial difficulties. See Letter from Gregory J. Sitzmann to the Court, Apr. 10, 2011 [Dkt. No. 132]. In the letter, Mr. Sitzmann stated that those alleged difficulties "clearly raise[] the question if either has affected his judgment and or decisions concerning the Defendant and if all decisions had been 'done in the best interest of his client[.]'" Id. at 4.

Mr. Klugh filed a notice of his position on the conflict of interest on April 12, 2011. And Mr. Klugh and Mr. Bergendahl then filed a motion to withdraw on April 18, 2011.

That day, the Court held a status conference in which it agreed to accept the withdrawal of Mr. Klugh and Mr. Bergendahl and appointed attorney Thomas Abbenante to represent Mr. Sitzmann under the Criminal Justice Act. See Minute Entry, Apr. 18, 2011; see also Hr'g Tr. at 7-8, Apr. 18, 2011 [Dkt. No. 117]. Mr. Abbenante stated that Mr. Sitzmann "indicated to [Mr. Abbenante] to represent to the Court that . . . [Mr. Sitzmann] would accept [Mr. Abbenante] as his counsel from this point forward." Hr'g Tr. at 8, Apr. 18, 2011 [Dkt. No. 117]. Mr. Sitzmann stated in open court that he "ha[d] no problem with Mr. Klugh and [Mr. Bergendahl] withdrawing." Id. at 18. To ensure that Mr. Sitzmann was in full agreement with Mr. Klugh's withdrawal, at the Court's insistence he repeated several times that he had no objection to either counsel withdrawing. See id. at 22 ("[I]f Mr. Klugh wants to withdraw, I have no objections and I'm satisfied with him."); id. at 24 ("Mr. ...

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