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United States v. Kaczynski

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 24, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
THEODORE JOHN KACZYNSKI, DEFENDANT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING MOTION TO STRIKE NOTICE OF APPEAL

The United States moves to strike Defendant Theodore John Kaczynski's pro se Notice of Appeal filed on October 25, 2010, arguing "it [is] invalid because his counsel of record did not file it[,]" and "[t]his Court . . . did not authorize Kaczynski to represent himself at the same time as he was represented by court appointed counsel." (ECF No. 799, 3:3-4, 4:4-5.) The motion will be denied for the following reasons.

On October 25, 2010, Kaczynski filed a motion for substitution of counsel, a notice of appeal, and a request for a stay "pending appointment of new counsel and pending appeal." (ECF No. 778, 1, 2.) Kaczynski purported to appeal and seek a stay in propria persona while he was simultaneously represented by counsel. (ECF No. 778.) Since Kaczynski's motion for substitution of appointed counsel was under the Criminal Justice Act, his counsel was ordered to provide information concerning his request for another appointed lawyer. (ECF No. 782.) On November 8, 2010, Kaczynski's counsel withdrew Kaczynski's motion for new counsel, and filed an "Application to Stay the Court's Orders Regarding the Sale of His Writings and Papers Pending Appeal" ("Stay Application"), in which counsel "reassert[ed] [Kaczynski's] pro se request for stay of the sale of any papers seized from his cabin pending appeal." (ECF Nos. 784; 785, 1:18-20.) Kaczynski's counsel adopted Kaczynski's pro se Notice of Appeal in the Stay Application both by referencing it and by renewing Kaczynski's request for relief pending appeal. (ECF No. 785, 1:18-23, 3:11-14, 4:8-19, 9:13-16.)

An order issued on November 16, 2010, denying Kaczynski's Stay Application. (ECF No. 795.) The November 16, 2010 Order implicitly recognized that Kaczynski's counsel adopted Kaczynski's pro se Notice of Appeal by addressing the merits of Kacsynski's request for a stay pending appeal. Therefore, the government's Motion to Strike Notice of Appeal is DENIED.

20101124

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