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United States of America v. Lowell Baisden.

October 11, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
LOWELL BAISDEN. DEFENDANT.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION FOR ACCESS TO

I. PROCEDURAL HISTORY COURTS

(ECF No. 219)

Plaintiff, United States of America, filed its Complaint for Permanent Injunction under sections 7402, 7407, and 7408 of the Internal Revenue Code (26 U.S.C. or I.R.C.) on September 29, 2006, seeking to bar Defendant Lowell Baisden from providing tax advice and preparing income tax returns for others. (ECF No. 1.)

On August 9, 2012, both Plaintiff and Defendant filed motions for summary judgment. (ECF Nos. 209 and 217, respectively). On August 30, 2012, Defendant filed a motion for access to courts pursuant to the Fifth, Sixth and Fourteenth Amendments. (ECF No. 219). On September 18, 2012, Plaintiff filed opposition to the motion for access to courts. (ECF No. 227.) On October 1, 2012, Defendant filed his reply to the opposition. (ECF No. 233.)

Defendant's motion for access to courts is deemed submitted and is now before the Court for ruling.

II. ARGUMENT

Defendant Baisden contends that the Bureau of Prisons ("BOP") Program Statement and Taft Correctional Institution ("TCI") policy allow the warden to approve legal furloughs. He has been informed his legal furlough application(s) have been denied by the warden. He requires legal furloughs from TCI to access documents and information which are stored at his home in Bakersfield California and which are needed to oppose Plaintiff's motion for summary judgment and also to enable him to appear at hearings and trial in this matter. He claims denial of furloughs deprives him of rights to due process, self-representation, and confrontation of witnesses against him. He seeks an order from the court allowing legal furloughs from TCI.

Plaintiff opposes the proposed furloughs, arguing that Defendant is a flight risk and that there is no good cause for granting furloughs.

Defendant argues in his reply that he meets the furlough eligibility criteria in the BOP Program Statement; he is not a flight risk; only he can locate and retrieve the needed documents; and Plaintiff's failure to meet and confer prior to its summary judgment motion prevented him from seeking a continuance of the dispositive motion deadline. He includes in his reply a request that this matter be stayed until he is released from BOP custody in 2014.*fn1

III. ANALYSIS

A. Sixth Amendment Self Representation and Access to Courts

The Sixth Amendment guarantees a defendant the right to represent himself in criminal proceedings, Faretta v. California, 422 U.S. 806, 834-36 (1975) and that right includes access to law books, witnesses, and other tools necessary to prepare a defense. Taylor v. List, 880 F.2d 1040, 1047 (9th Cir. 1989); Milton v. Morris, 767 F.2d 1443, 1446-47 (9th Cir. 1985).

The Sixth Amendment is meant to assure fairness in the adversary criminal process, and a defendant's Sixth Amendment right to counsel attaches when the government initiates adversarial proceedings against him. United ...


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