USA v. Hardison

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 3:25-CR-48-TAV-DCP
)
BRYAN HARDISON, 	)
)
Defendant. 	)
MEMORANDUM OPINION AND ORDER
Before the Court is defendant’s objection [Doc. 69] to the Order entered by United
States Magistrate Judge Debra C. Poplin [Doc. 60], which denied defendant’s pro se
Motion for Emergency Hearing to Investigate and Get a Better Understanding of Duties of
Elbow Counsel [Doc. 55].
For this Court to overturn a magistrate judge’s decision on non-dispositive pretrial
matters, the party seeking reversal must show that the magistrate judge’s decision was
“clearly erroneous or contrary to law.” 	28 U.S.C. § 636(b)(1)(A). 	A factual finding is
clearly erroneous if the Court “is left with the definite and firm conviction that a mistake
has been committed.” Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 219 (6th Cir. 2019)
(internal citations omitted). 	A legal conclusion is contrary to law if “it fails to apply or
misapplies relevant statutes, case law, or rules of procedure.” 	Id. (internal citations
omitted).
On September 24, 2025, defendant filed his pro se motion [Doc. 55], requesting a
hearing to clarify the role of elbow counsel. 	In support of this request, defendant stated
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that he had asked his elbow counsel to “obtain all of the Rule 16 discovery [that he] asked
for in [his] Notice of Request” [Id. at 1]. However, elbow counsel only brought him copies
of the search warrant, the supporting affidavit, and one of their email correspondences [Id.].
Otherwise, elbow counsel told defendant that her duties were limited and that “she did not
have to view pole camera footage with [him]” [Id.]. 	In the remainder of his motion,
defendant listed the information he sought from elbow counsel [Id. at 2–4].
In her Order on defendant’s pro se motion, Judge Poplin reiterated that on
September 11, 2025, the Court conducted a Faretta hearing in which it advised defendant
on the risks and perils of self-representation, advised defendant that he would be better off
proceeding with counsel, and informed defendant that the rules of procedure and evidence
would not be relaxed for him as a pro se litigant [Doc. 60, pp. 1–2]. As noted by Judge
Poplin, defendant agreed that he understood such consequences and still wished to
represent himself [Id. at 2]. Judge Poplin further recalled that the Court reviewed the role
of elbow counsel with defendant at the hearing and a discussion of such role was included
in the Court’s September 15, 2025, Memorandum and Order [Id. (citing Doc. 51)].
In addition to the discussion of elbow counsel already had, Judge Poplin also
observed that elbow counsel’s role as to discovery is to “provide [d]efendant with the
discovery disclosed by the [g]overnment” and not to “seek out additional information[] [or]
explain the legal import of discovery” [Id.]. 	Moreover, Judge Poplin stated that elbow
counsel could provide defendant with copies of documents filed in the record before
defendant began representing himself, but elbow counsel need not provide defendant with
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copies of documents already mailed to him [Id.]. Lastly, Judge Poplin informed defendant
that he must file a motion if he desires a transcript of any proceeding [Id.]. 	Ultimately,
given the Court’s prior explanations of the duties of elbow counsel [Docs. 50, 51] and the
further explanation of these duties in relation to discovery, Judge Poplin denied defendant’s
pro se motion [Doc. 60, p. 2].
In his objection, defendant argues that Judge Poplin’s “finding” was clearly
erroneous because he “is just requesting to know from the Court the extent of [elbow
counsel’s] duty” to effectively represent himself [Doc. 69, p. 1]. Defendant also objects to
“the Judge not saying what the law is contrary to [the] clearly establish[ed] law” of
Marbury v. Madison, 5 U.S. 137, 177 (1803), which defendant quotes for the proposition
that it is the duty of the judicial department to say what the law is [Id. at 2]. In support of
this objection, defendant contends that Judge Poplin’s “bald” assertion about the perils of
self-representation “does not address what the law is pertaining to [ ] elbow counsel’s duty”
[Id.]. Furthermore, defendant appears to assert that his questioning of elbow counsel’s role
indicates that he did not knowingly and voluntarily waive his 6th Amendment right to
counsel [Id.]. In addition to his objection, defendant also requests a hearing “to get a better
understanding of elbow counsel’s duties” [Id. at 3].
Beginning with defendant’s submission that he is “just requesting to know” the
extent of elbow counsel’s duty, the Court finds that Judge Poplin explained in detail the
role of elbow counsel to defendant at the Faretta hearing [Doc. 50], in her September 15,
2025, Memorandum and Order [Doc. 51], and in her October 1, 2025, Order [Doc. 60] in
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which she denied defendant’s pro se motion [See Doc. 55]. Specifically, in the September
15, 2025, Memorandum and Order, Judge Poplin explained that elbow counsel could assist
in overcoming routine procedural or evidentiary obstacles in the completion of a specific
task and could help ensure that defendant complies with the basic rules of courtroom
protocol and procedure [Doc. 51, p. 4 (citing McKaskle v. Wiggins, 465 U.S. 168, 183–84
(1984))]. Judge Poplin also informed defendant that elbow counsel could, upon his request,
provide him technical assistance in presenting the defense and preserving the record for
appeal [Id. at 5]. 	And, as discussed previously, Judge Poplin’s October 1, 2025, Order
gave defendant further explanation as to the role of elbow counsel when it comes to
discovery [Doc. 60, p. 2]. Given these previous explanations and discussions of the role
of elbow counsel, the Court cannot conclude that Judge Poplin’s “finding” is clearly
erroneous or contrary to law.
Moving on, defendant asserts that Judge Poplin did not address the law pertaining
to elbow counsel’s duties in her October 1, 2025, Order despite her obligation to do so
[Doc. 69, p. 2]. 	However, Judge Poplin addressed such law in her September 15, 2025,
Memorandum and Order [See Doc. 51 (citing Wiggins, 465 U.S. at 178, 183–84; Faretta
v. California, 422 U.S. 806, 834 n.36)]. And Judge Poplin incorporated this law into her
October 1, 2025, Order, noting again that “elbow counsel’s role is primarily administrative
and focused on procedure” and that “elbow counsel is not obligated to provide legal advice
on substantive issues” [Doc. 60, p. 2 (citing Doc. 51, pp. 4–5, 5 n.6)]. The Court also notes
that, even if Judge Poplin’s Order did not incorporate previously discussed law, such
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absence is not contrary to law because “the role of standby counsel falls within the
discretion of the district court.” 	United States v. Pouncy, No. 23-20262, 2025 WL
2251650, at *1 (E.D. Mich. Aug. 6, 2025) (internal quotation marks and citation omitted).
Lastly, defendant appears to contend that his lack of understanding as to elbow
counsel’s duties indicates that he did not knowingly and voluntarily waive his 6th
Amendment right [Doc. 69, p. 2]. “[B]efore a defendant may be deemed to have validly
waived the right to counsel, he must be warned specifically of the ‘dangers and
disadvantages of self-representation.’” 	United States v. Powell, 847 F.3d 760, 774 (6th
Cir. 2017) (quoting Faretta, 422 U.S. at 835). 	The Sixth Circuit has instructed district
courts to “ask the defendant a series of questions drawn from, or substantially similar to,
the model inquiry set forth in the Bench Book for United States District Judges.” United
States v. McBride, 362 F.3d 360, 366 (6th Cir. 2004). Additionally, this model inquiry is
to be followed by “a strong admonishment that the court recommends against the defendant
trying to represent himself or herself.” United States v. Williams, 641 F.3d 758, 767 (6th
Cir. 2011).
These instructions by the Sixth Circuit do not include an obligation to inform a
defendant who seeks to waive his right to counsel about the possibility of appointing elbow
counsel. And logically so as “[a] criminal defendant who elects to proceed pro se has no
right to standby counsel.” Moore v. Edwards, No. 23-3844, 2024 WL 1636585, at *4 (6th
Cir. Apr. 1, 2024) (citations omitted); accord Hackett v. Bracy, No. 4:21-CV-2337, 2024
WL 3793928, at *27 (N.D. Ohio Apr. 19, 2024), report and recommendation adopted, No.
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4:21-CV-2337, 2024 WL 3791901 (N.D. Ohio Aug. 13, 2024) (noting that the Supreme
Court in McKaskle did not mandate that courts appoint standby counsel). Thus, any lack
of understanding as to the role of elbow counsel does not implicate defendant’s waiver of
his right to counsel. Accordingly, when the Court advised defendant on the risks and perils
of self-representation using the litany provided in United States v. McDowell, 814 F.2d
245, 251 (6th Cir. 1987) and the Bench Book for United States District Judges and
recommended to defendant that he would be better off proceeding with counsel [Doc. 50;
Doc. 51, pp. 3–4; Doc. 60, pp. 1–2], defendant was properly warned of the dangers and
disadvantages of proceeding pro se as is needed for the knowing and voluntary waiver of
one’s 6th Amendment right to counsel. In turn, the Court finds that Judge Poplin’s Order
[Doc. 60] was not clearly erroneous or contrary to law.
In 	total, 	for 	the 	reasons 	explained, 	defendant’s 	objection 	[Doc. 	69] 	is
OVERRULED, and his request for a hearing is DENIED. Judge Poplin’s well-reasoned
decision [Doc. 60], which is hereby incorporated by reference, remains in effect as the
ruling of this Court.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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