Case: 13-30154 08/08/2013 ID: 8735813 DktEntry: 16 Page: 1 of 4
UNITED STATES COURT OF APPEALS
AUG 08 2013
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
D.C. No. 10-CR-89-LAB
District of Idaho,
MICHAEL GEORGE FITZPATRICK,
Defendant - Appellant.
Before: Peter L. Shaw, Appellate Commissioner
In the district court, Michael George Fitzpatrick was granted leave to
proceed in forma pauperis and to represent himself with standby counsel, Assistant
Federal Public Defender Colin George. Fitzpatrick, who operated foreign and
domestic companies to market and sell debt relief products, was convicted after a
six-day jury trial of two counts each of tax evasion and failure to file a corporate
tax return, in violation of 26 U.S.C. §§ 7201 and 7203. Fitzpatrick was sentenced
to 42 months in prison on each of the tax evasion counts and 12 months in prison
on each of the tax return counts, to be served concurrently, along with 36 months
Case: 13-30154 08/08/2013 ID: 8735813 DktEntry: 16 Page: 2 of 4
of supervised release. Fitzpatrick was ordered to pay a $250 assessment and
$1,397,762 in restitution.
Fitzpatrick filed a pro se notice of appeal and requested leave to represent
himself on appeal. Fitzpatrick’s request for self-representation was referred to the
Appellate Commissioner, pursuant to Ninth Circuit General Order 6.3(e), which
authorizes the Appellate Commissioner to confirm that an appellant’s request for
self-representation and waiver of the right to counsel is knowing, intelligent, and
unequivocal. See Hendricks v. Zenon, 993 F.2d 664, 669 (9th Cir. 1993).
The United States Supreme Court held in Martinez v. Court of Appeal, 528
U.S. 152 (2000), that there is no constitutional right to self-representation on
appeal, but left this court with the discretion to allow self-representation in
appropriate cases. Id. at 163. This discretion is exercised with attention to the
court’s strong interests in ensuring the integrity of the judicial process and in
avoiding the undue burden that may be imposed by a pro se litigant. Id. at 162.
Accordingly, the court will permit defendants in direct criminal appeals to
represent themselves if: (1) the defendant’s request for self-representation and
waiver of the right to counsel are knowing, intelligent, and unequivocal; (2) the
Case: 13-30154 08/08/2013 ID: 8735813 DktEntry: 16 Page: 3 of 4
defendant is apprised of the dangers and disadvantages of self-representation on
appeal; and (3) self-representation would not undermine a just and orderly
resolution of the appeal. See 9th Cir. R. 4-1(d).
Even if the district court has determined that a defendant is competent to
represent himself, the court of appeals makes an independent determination
regarding whether an appellant in a criminal appeal should be permitted to
represent himself on appeal. See id.; 9th Cir. Gen. Order 6.3(c).
A review of the district court record and court of appeals docket, including
Fitzpatrick’s pro se “addendum items of appeal objections to sentence” and
“amended appeal additions,” suggest that this is not an appropriate case in which to
exercise the court’s discretion to permit self-representation. Here, self-
representation could burden the court and the government, as well as undermine
the just and orderly resolution of the appeal. See Martinez, 528 U.S. at 163; 9th
Cir. R. 4-1(d). In this appeal, the court’s interest in the fair and efficient
administration of justice outweighs Fitzpatrick’s interest in self-representation.
See Martinez, 528 U.S. at 162.
According to the government’s pre-sentencing memorandum, Fitzpatrick
“subscribes to the notion that the federal government does not have the authority to
tax its citizens and that the federal income tax is illegal,” and Fitzpatrick admitted
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working for a company that sold abusive tax schemes. Fitzpatrick’s pro se
submissions are signed “sui juris, of the clan of Fitzpatrick” and allege that the
district court lacked jurisdiction over his case. Fitzpatrick also states that he does
not consent to government policies. In the district court, Fitzpatrick filed a number
of frivolous pro se motions and repeatedly was cautioned for asking improper
The court would benefit from having experienced counsel George represent
Fitzpatrick on appeal. See United States v. Gillis, 773 F.2d 549, 560 (4th Cir.
1985). George will be able to communicate effectively with the court, the
government, and Fitzpatrick; to obtain, review, and analyze the trial transcript; and
to identify, research, and brief the strongest legal issues presented by Fitzpatrick’s
appeal. See Smith v. Murray, 477 U.S. 527, 536 (1986).
The court should deny Fitzpatrick’s request for leave to represent himself on
appeal, and prohibit requests by Fitzpatrick for reconsideration of its order. The
court should change its docket to show that Assistant Federal Public Defender
George represents Fitzpatrick on appeal. The court should set a new briefing
schedule for the appeal.