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United States of America v. Robert L. Nelson

April 29, 2011


The opinion of the court was delivered by: Judge Conner


Presently before the court are five requests (Docs. 226, 227, 230, 236, 237) and six motions for various relief (Docs. 225, 228, 229, 231, 232, 235), filed pro se by defendant Robert Nelson. For the reasons set forth below, the court will deny all requests and motions.

I. Background

Defendant Robert Nelson ("Nelson") was indicted on July 1, 2009. (See Doc. 1). Originally, Nelson received court-appointed counsel to prepare his defense, however, Nelson was dissatisfied with his representation. (Doc. 14). Between the time of his indictment and the date set for commencement of trial, the court appointed three different attorneys to represent Nelson. Nelson found fault with all three, alleging that they were assisting the government in concealing and altering evidence of purported outrageous government misconduct. On November 5, 2010, after removing Nelson's third court-appointed counsel, the court ordered Nelson to proceed pro se and scheduled trial for December 6, 2010. (Doc. 166). On the morning trial was set to commence, Nelson decided to plead guilty to the three-count superseding indictment. (See Docs. 195, 196).

Ten days later, on December 16, 2010, Nelson filed a motion to withdraw his guilty plea. (Doc. 202). The court conducted a hearing on the motion on February 10, 2011, and by Memorandum and Order of the court dated March 11, 2011, the court denied Nelson's motion to withdraw his guilty plea. (Doc. 219). In an abundance of caution for the defendant's rights, on March 14, 2011, the court appointed a fourth counsel for Nelson for sentencing purposes only. (Doc. 220).

Nelson filed a pro se notice of appeal on March 21, 2011. (See Doc. 224). Nelson's fourth counsel, Laurence Kress, Esquire, entered his appearance on behalf of Nelson for the appeal. The Third Circuit Court of Appeals, noting that Nelson's appeal is premature, stayed the appeal pending sentencing and entry of final judgment of conviction by this court. United States v. Nelson, No. 11-1746 (3d Cir. 2011). Nonetheless, the Third Circuit requested various transcripts in anticipation of the appeal.

In addition to filing the notice of appeal, from March 21st to March 25th, Nelson filed the eleven requests and motions presently before the court. (Docs. 225, 226, 227, 228, 229, 230, 231, 232, 235, 236, 237). The requests and motions include: a motion for stay of execution (Doc. 226), a motion for arrest of judgment/new trial (Doc. 225), motions for extensions of time (Docs. 232, 235), motions and requests to preserve phone records and investigative notes (Docs. 228, 230, 231), requests for transcripts (Docs. 227, 229, 236), and a request for a certificate of necessity. (Doc. 237). On April 6, 2011, Nelson's counsel requested transcripts of virtually all the hearings held in this case. (Docs. 238, 239).

II. Discussion

The court notes at the outset that Nelson is currently represented by counsel, and has been since March 14, 2011. (Doc. 220). Accordingly, the court may deny all of Nelson's pro se requests and motions, filed without the assistance of counsel, on that basis alone. See United States v. D'Amario, 268 F. App'x 179, 180 (3d Cir. 2008) ("The Constitution does not confer a right to proceed simultaneously by counsel and pro se . . . ."); see also United States v. Vampire Nation, 451 F.3d 189, 206 n.17 (3d Cir. 2006). The court will, however, briefly address the merits of the various requests and motions.

A. Requests for Transcripts

Nelson requests transcripts of numerous proceedings held before this court in order to prepare his appeal. (See Docs. 227, 237). Nelson also requests that this court forward these transcripts to the Third Circuit "in original form." (Doc. 229). Nelson's counsel has since filed transcript purchase order requests for the same transcripts with both this court and the Third Circuit. (See Docs. 238, 239; see also United States v. Nelson, No. 11-1746, Orders of April 4, 2011, and April 6, 2011). Nelson's requests are redundant, and, therefore, denied.

B. Motions for Extension of Time

Nelson requests addition time to file supplemental issues for his arrest of judgment/new trial motion. (Doc. 232). There is no basis for Nelson's arrest of judgment/new trial motion, see Part II.D infra, thus, an extension of time to brief that motion is unwarranted, and denied. Additionally, Nelson requests an extension of time to file his appeal. (Doc. 235). He asserts that he intends to seek an interlocutory appeal of this court's order denying his motion to withdraw guilty plea and that he believes this court should recuse itself based upon bias and prejudice. (Id. ΒΆΒΆ 3, 4). The court will deny this motion for three reasons. First, Nelson has already filed an appeal, and that appeal is docketed with the Third Circuit. See United States v. Nelson, No. 11-1746 (3d Cir.). Second, Nelson has also submitted to this court a request for a certificate of necessity. (See Doc. 237; infra Part II.E). ...

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