USA v. Eklund

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LOUIS HOLGER EKLUND,
Defendant.
Case No. 3:18-cr-00035-SLG-MMS
ORDER REGARDING MOTION TO DISCHARGE STANDBY COUNSEL
Before the Court at Docket 389 is defendant Louis Holger Eklund’s pro se filing
entitled “Objection & Showing of Severe Incompetence of Standby Counsel, Lance
Christian Wells, & Motion for an Order for Lance Christian Wells to Withdraw from this
Case Due to Ineffective Assistance of Counsel.” No response from the government is
necessary.1
In January 2020, Mr. Holger requested that he be allowed to represent himself.
After conducting a Faretta inquiry, the Court granted the motion and appointed Mr. Wells
(who had been representing Mr. Holger) to act as standby counsel. Mr. Holger has
expressed dissatisfaction with Mr. Wells, and the instant motion seeks an order
withdrawing Mr. Wells from acting as standby counsel.2
1 See Docket 197 (text order stating that “the government need not respond to any filing by the
defendant unless the Court orders a response.”).
2 Docket 389 at 4.
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Order Re Motion to Relieve Standby Counsel
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This Court has the authority to order standby counsel over a defendant’s
objection.3 The right to self-representation is not “‘a license not to comply with relevant
rules of procedural and substantive law,’ and a trial court may terminate self-
representation where a defendant ‘deliberately engages in serious and obstructionist
misconduct.’”4 Based on observations of Mr. Holger both in his writings to the Court and
in his courtroom behavior on and off the record, the Court has considerable concern about
Mr. Holger’s ability and willingness to comply with this Court’s orders during trial both as
to the scope of permissible evidence and argument and as to the conduct expected of
him in the courtroom.5 “The right of self-representation is not a license to abuse the
dignity of the courtroom”6 and can be forfeited if a defendant is not “able and willing to
abide by rules of procedure and courtroom protocol.”7
The Court will retain Mr. Wells as standby counsel in this case for three reasons:
First, Mr. Wells is available to facilitate Mr. Holger’s review of discovery while he is in
custody.8 Second, Mr. Holger will have an experienced attorney to consult with regarding
3 Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir. 2005) (citing Faretta v. California, 422 U.S.
806, 834 n.46 (1975)).
4 Cooks, 395 F.3d at 1080 (quoting Faretta v. California, 422 U.S. 806, 834 n.46 (1975)).
5 See United States v. Flewitt, 874 F.2d 669, 674 (9th Cir. 1989) (defendant’s pretrial activity can
be relevant “if it affords a strong indication that the defendants will disrupt the proceedings in the
courtroom”); Hatten v. Yates, Case No. CV 06-3751-DMG, 2011 WL 6941698, at *14 (C.D. Cal.
June 15, 2011) (finding trial court’s decision to revoke defendant’s pro se status reasonable “in
light of the significant record of petitioner’s disruptive and hostile pleadings and courtroom
behavior, and refusal to obey the trial court’s repeated admonitions”).
6 Faretta, 422 U.S. at 834 n.46.
7 McKaskle v. Wiggins, 465 U.S. 168, 173 (1984). See United States v. Engel, 968 F.3d 1046,
1050–51 (9th Cir. 2020) for a discussion of courtroom behavior that can trigger revocation of
self-representation.
8 See Docket 384 (“Order Regarding Motion to Compel Standby Counsel to Produce
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Case No. 3:18-cr-00035-SLG-MMS, United States v. Eklund
Order Re Motion to Relieve Standby Counsel
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appropriate behavior in court, which may increase the odds of Mr. Holger being allowed
to continue to represent himself and will “relieve the judge of the need to explain and
enforce basic rules of courtroom protocol.”9 Third, this case has been pending since
March 2018 with Mr. Holger detained in custody, and Mr. Holger has expressed that he
would like to have a trial as soon as possible; if the Court finds cause during trial to revoke
Mr. Holger’s pro se status, it will have standby counsel who can step in to complete the
trial and avoid the delay of having new counsel prepare for trial.10
Mr. Wells represented Mr. Holger in this case prior to Mr. Holger’s request to
represent himself. The Court has also observed Mr. Holger and Mr. Wells together in the
courtroom. Mr. Wells is the local attorney best suited to serve as standby counsel in this
case because he is the most familiar with this case and because of his observed ability
to work with Mr. Holger in the courtroom.
Of course, so long as Mr. Holger retains his pro se status, he need not make use
of standby counsel if he so chooses.
Evidence”).
9 Savage v. Estelle, 924 F.2d 1459, 1462 (9th Cir. 1990). Accord Frantz v. Hazey, 533 F.3d 724,
740 (9th Cir. 2008) (“[S]tandby counsel may assist in two ways: (1) ‘in overcoming routine
procedural or evidentiary obstacles to the completion of some specific task, such as introducing
evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete,’
and (2) by ‘help[ing] to ensure the defendant’s compliance with basic rules of courtroom protocol
and procedure.’”) (quoting McKaskle v. Wiggins, 465 U.S. 168, 183 (1984)).
10 Faretta, 422 U.S. at 834 n.46 (stating that courts may appoint standby counsel over the
defendant’s objection “to be available to represent the accused in the event that termination of
the defendant’s self-representation is necessary.”); Engel, 968 F.3d at 1051–52 (noting that after
the trial court revoked the defendant’s pro se status during trial, standby counsel stepped in and
cross-examined government witnesses until the court reinstated the defendant’s pro se status);
United States v. Mack, 362 F.3d 597, 599 (9th Cir. 2004) (noting that it was “regrettable” that no
standby counsel was appointed for an “obstreperous” and “contemptuous” pro se defendant
because no one was available to step in as counsel when the defendant was excluded from the
courtroom during trial).
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Case No. 3:18-cr-00035-SLG-MMS, United States v. Eklund
Order Re Motion to Relieve Standby Counsel
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In light of the foregoing, IT IS ORDERED that the motion at Docket 389 is DENIED.
DATED this 9th day of December, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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