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Case: 13-30154 08/08/2013 ID: 8735813 DktEntry: 16 Page: 1 of 4

FILED

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,

No. 13-30154

Plaintiff - Appellee,

v.

D.C. No. 10-CR-89-LAB
District of Idaho,
Boise

MICHAEL GEORGE FITZPATRICK,

Defendant - Appellant.

REPORT AND
RECOMMENDATION

Before: Peter L. Shaw, Appellate Commissioner

I

Background

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

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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).

II

Analysis

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

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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

questions.

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).

III

Conclusion

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.

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