Filed: Jul. 30, 2019
Latest Update: Jul. 30, 2019
Summary: ORDER ELIZABETH A. KOVACHEVICH , District Judge . This cause is before the Court on: Dkt. 127 Pro Se Motion for Court Records Defendant Wayne St. Aubyn Smith, pro se , requests that the Court provide the trial transcript and sentencing transcript to Defendant for his use in Defendant's direct appeal. Defendant Smith proceeded pro se before this Court, with the assistance of standby counsel (Dkt. 47). In Defendant's appeal, Case No. 17-13968, Defendant's standby counsel moved to w
Summary: ORDER ELIZABETH A. KOVACHEVICH , District Judge . This cause is before the Court on: Dkt. 127 Pro Se Motion for Court Records Defendant Wayne St. Aubyn Smith, pro se , requests that the Court provide the trial transcript and sentencing transcript to Defendant for his use in Defendant's direct appeal. Defendant Smith proceeded pro se before this Court, with the assistance of standby counsel (Dkt. 47). In Defendant's appeal, Case No. 17-13968, Defendant's standby counsel moved to wi..
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ORDER
ELIZABETH A. KOVACHEVICH, District Judge.
This cause is before the Court on:
Dkt. 127 Pro Se Motion for Court Records
Defendant Wayne St. Aubyn Smith, pro se, requests that the Court provide the trial transcript and sentencing transcript to Defendant for his use in Defendant's direct appeal.
Defendant Smith proceeded pro se before this Court, with the assistance of standby counsel (Dkt. 47).
In Defendant's appeal, Case No. 17-13968, Defendant's standby counsel moved to withdraw and to permit Appellant to proceed pro se. In the Motion, Defendant's standby counsel states that he has provided the transcripts and record to Defendant Smith. (Exhibit 1).
On January 11, 2019, the Eleventh Circuit Court of Appeals granted Appellant Smith's motion to discharge counsel and Mark Ciaravella's motion to withdraw or act as standby counsel in part and denied the motions in part. (Exhibit 2). Appellant Smith was permitted to represent himself on appeal. Mark Ciaravella was directed to act as standby counsel, and to provided copies of his case files to Appellant Smith.
Defendant Smith is in custody at FCC Coleman Low. The Court needs to determine if there is a practical problem with Defendant Smith's ability to retain the trial transcript and sentencing transcript for Defendant Smith's use in the appeal. After consideration, the Court directs Defendant Smith's standby counsel to confirm the date that he provided the trial transcript and sentencing transcript to Defendant Smith, and to inquire of the Bureau of Prisons whether Defendant Smith has still has those records and is permitted to retain the records for his use, and file a status report to the Court within ten days of the date of this Order. The Court will defer ruling on Defendant's Motion. Accordingly, it is
ORDERED that Defendant Wayne St. Aubyn's standby counsel, Mark Ciaravella, shall file a status report within ten days that confirms the date that counsel provided the trial transcript and sentencing transcript to Defendant Smith, and notifies the Court of the response of the Bureau of Prisons as to whether Defendant Smith still has the records and is permitted to retain those records for use in the appeal. The Court's ruling on Defendant Smith's Motion (Dkt. 127) is deferred.
DONE and ORDERED.
EXHIBIT 1
IN THE ELEVENTH CIRCUIT COURT OF APPEALS OF THE UNITED STATES OF AMERICA ATLANTA, GEORGIA
UNITED STATES OF AMERICA
v Case No.: 17-13968-E
WAYNE ST. AUBYN SMITH
MOTION TO WITHDRAW AS COUNSEL FOR APPELLANT AND TO PERMIT APPELLANT TO PROCEED PRO SE
COMES NOW Mark Ciaravella, counsel of record for Appellant, WAYNE ST. AUBYN SMITH, and moves this Honorable Court for an order allowing him to withdraw as counsel for Appellant, and as grounds therefore states as follows:
1. After multiple Faretta inquires, the district court permitted Mr. Smith to represent himself at trial. It is Mr. Smith's express desire to also represent himself in his appeal.
2. Counsel discussed with Mr. Smith the merits and disadvantages of proceeding pro se on multiple occasions.
3. Mr. Smith is adamant in his desire to proceed pro se. This desire to proceed pro se in grounded in his earnest belief and desire to advanced and argue his unique interpretations of existing statutory and case law. Mr. Smith is aware that a member of the bar would not be able to advance his positions on the law.
4. Counsel requests permission to withdraw from the case and allow Mr. Smith to proceed pro se as is his desire. Alternatively, counsel requests permission to act as stand-by counsel and assist Mr. Smith in advancing his case while providing services to him that are difficult for him to accomplish while incarcerated.
5. Counsel has provided the transcripts and record to Mr. Smith. Counsel is willing to assist Mr. Smith in any way that would be helpful to him and to the Court.
6. Counsel has thoroughly reviewed the record on appeal including the transcripts.
7. Despite diligent review, counsel is unable to argue that the trial court committed any reversible error, or that there exists any meritorious grounds for an appeal. Should this motion be denied, counsel would be forced to file an Anders brief.
8. Mr. Smith has the right to represent himself in this case.
RESPECTFULLY SUBMITTED this 11th day of July, 2018.
APPELLANT'S CERTIFICATE OF INTERESTED PARTIES
Pursuant to Federal Rule of Appellate Procedure 26.1 and 11th Cir. Rule 26-1, the undersigned hereby certifies that the following is a list of all persons and entities that have an interest in the outcome of this case:
1. Chapa, Maria, United States Attorney, Middle District of Florida;
1. Ciaravella, Mark, counsel for appellant and district court stand-by counsel;
2. Gershow, Holly, Assistant United States Attorney, appellate counsel for appellee;
3. Hale, Shauna, Assistant United States Attorney, district court counsel for appellee.
4. Kovachevich, Elizabeth, United States District Court Judge;
5. Rhodes, David, Assistant United States Attorney, Chief, Appellate Division;
6. Smith, Wayne St. Aubyn, appellant;
7. Sneed, Julie, United States Magistrate Judge;
CERTIFICATE OF SERVICE
I hereby certify that on July 11, 2018, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to the following non-CM/ECF participants: Wayne St. Aubyn Smith, Register Number 42332-066, FCI Coleman Medium, Federal Correctional Institution, Post Office Box 1032, Coleman, FL 33521.
CERTIFICATE OF COMPLIANCE
Counsel for Appellant Wayne St. Aubyn Smith certifies that this motion complies with the type-volume limitations set forth in Fed. R. App. P. 27 (d). The motion contains 620 words. Times New Roman 14 is the type size and style used in this motion.
/s/ Mark W. Ciaravella
Mark W. Ciaravella
Florida Bar Number 46108
Attorney for Appellant Smith
Post Office Box 1107
Tampa, Florida 33601
Phone 813 388 0881
mwc@ciaravella.com
EXHIBIT 2
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
David J. Smith For rules and forms visit
Clerk of Court www.call.uscourts.gov
January 11, 2019
Mark W. Ciaravella
Mark W. Ciaravella, PA
1110 N FLORIDA AVE
PO BOX 1107
TAMPA, FL 33601
Wayne St. Aubyn Smith
FCI Coleman Medium-Inmate Legal Mail
PO BOX 1032
COLEMAN, FL 33521-1032
Appeal Number: 17-13968-EE
Case Style: USA v. Wayne Smith
District Court Docket No: 8:17-cr-00121-EAK-JSS-1
This Court requires all counsel to file documents electronically using the Electronic Case
Files ("ECF") system, unless exempted for good cause.
The enclosed order has been ENTERED.
Appellant's brief is due February 13, 2019.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Elora Jackson, EE
Phone #: (404) 335-6173
MOT-2 Notice of Court Action
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 17-13968-EE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE ST. AUBYN SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
ORDER:
Wayne Smith appeals after a jury convicted him of attempted filing of a false lien against an officer or employee of the United States, in violation of 18 U.S.C. § 1521, and the court sentenced him to 46 months' imprisonment. In the district court, Mr. Smith represented himself, while attorney Mark Ciaravella acted as standby counsel. Pursuant to the Criminal Justice Act, we appointed Mr. Ciaravella to represent Mr. Smith on appeal. Mr. Smith then filed two motions, which are now before us. First, he has filed a motion to discharge Mr. Ciaravella and represent himself. In that motion, Mr. Smith also requests that we (1) order Mr. Ciaravella to send Mr. Smith any case materials in Mr. Ciaravella's possession, and (2) "stay any requests, motions, petitions or other such proceedings [that Mr. Ciaravella may have initiated] and provide him with a copy of each [of Mr. Ciaravella's filings]." Second, Mr. Smith has moved this Court to enjoin the Bureau of Prisons from "obstructing [his] rights to Due Process by delaying and or confiscating [his] legal mail" and to "put a stop to the [Bureau of Prisons'] practice of opening all clearly marked incoming legal mail [outside the presence] of the addressee." Separately, Mr. Ciaravella has moved to withdraw as counsel, or, in the alternative, to act as standby counsel.
Here, Mr. Smith's motion to discharge counsel and represent himself, and Mr. Ciaravella's motion to withdraw or act as standby counsel, are GRANTED IN PART AND DENIED IN PART. Mr. Smith may represent himself on appeal. Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 163 (2000) (holding that there is no constitutional right to self-representation on direct appeal from a criminal conviction, but that appellate courts may exercise their discretion to allow a defendant to proceed pro se). On appeal, Mr. Ciaravella shall act as standby counsel, as he did in the district court. 11th Cir. R. 46-10(c) ("Counsel appointed by the trial court shall not be relieved on appeal except in the event of incompatibility between attorney and client or other serious circumstances."). Further, Mr. Ciaravella is ORDERED to provide copies of his case files to Mr. Smith for his use on appeal. To the extent that Mr. Smith asks that we stay Mr. Ciaravella's filings, the request is DENIED as unnecessary because Mr. Ciaravella's filings have been procedural in nature and do not affect Mr. Smith's substantive rights.
Finally, Mr. Smith's motion for injunctive relief is DENIED. The Bureau of Prisons is not a party to this litigation, and a direct criminal appeal is not the proper procedural mechanism for challenging the Bureau's policies or procedures.
