United States District Court, E.D. Michigan, Southern Division
ORDER STRIKING DEFENDANT'S PRO SE FILINGS [67,
J. MICHELSON UNITED STATES DISTRICT JUDGE.
Robinson is charged in a first superseding indictment with
one count of possession of a firearm by a felon after law
enforcement retrieved a .45 caliber semi-automatic handgun
during the execution of a search warrant at Robison's
Flint residence. He is also charged with one count of
conspiracy to distribute cocaine base for conduct alleged to
have occurred from October 2016 through February 20, 2018.
(ECF No. 18.) Robinson is represented by appointed counsel.
Court conducted a final pretrial conference on June 12, 2019.
Immediately prior to the conference, Robinson filed, pro se,
a motion to recuse the Assistant United States Attorney
handling the case (ECF No. 67) and a motion to suppress the
evidence seized as a result of the execution of the search
warrant. (ECF No. 68). There are several issues with the
motions that warrant their denial and/or disregard.
they are untimely. The deadline for filing pretrial motions,
and even motions in limine, expired prior to June 12, 2019.
Robinson is represented by counsel. This District has made
clear that a “Defendant is not entitled to represent
himself while simultaneously represented by counsel. A
criminal defendant has the right to appear pro se or by
counsel, a right protected by both the Sixth Amendment to the
United States Constitution and federal statute . . . This
right, however, is disjunctive; thus a party may ch[o]ose
either to represent himself or to appear through an
attorney.” United States v. Toufaili, No.
10-20705, 2011 U.S. Dist. LEXIS 8763, *3-5 (E.D. Mich. Jan.
31, 2011) (citations omitted). Thus, “as part of the
latitude accorded district courts managing their dockets,
courts may bar pro se filings by represented parties.”
United States v. Hendrickson, No 13-20371, 2017 U.S.
Dist. LEXIS 144716, *1-2 (E.D. Mich. Sept. 7, 2017) (citing
United States v Agofsky, 20 F.3d 866, 872
(8th Cir. 1994) (finding no error in the court's refusal
to consider pro se motion where defendant was represented by
counsel); United States v Tracy, 989 F.2d 1279, 1285
(1st Cir. 1993) (“A district court enjoys wide latitude
in managing its docket and can require represented parties to
present motions through counsel.”)).
the motions lack merit. Robinson's bond conditions are
not the result of any false statements by the prosecution.
Pursuant to the bail reform act, they are conditions deemed
necessary by the Court to reasonably assure the safety of the
community and Robinson's appearance at court proceedings.
See 18 U.S.C. § 3142. There is no basis to
recuse the prosecutor. And the motion to suppress does not
provide the allegedly deficient search warrant to enable the
court to undertake any meaningful review and analysis. Also,
Robinson's primary argument for suppression is that the
officers failed to leave a copy of the affidavit in support
of the search warrant. But this failure does not require
suppression. As another court in this Circuit has explained,
Rule 41(f) does not require officers to leave at the premises
a copy of the affidavit supporting the search warrant. Rule
41(f) requires the officer executing the warrant to
“leave a copy of the warrant and receipt at the place
where the officer took the property.” Fed. R. Crim. P.
41(f)(3)(B). This rule merely requires officers to leave a
copy of the warrant and a receipt for the property taken. The
rule does not, however, require officers to leave a copy of
the affidavit supporting the search warrant.
Finally, even if Rule 41(f) requires officers to leave a copy
of the affidavit at the premises, the officers failure to do
so in this case does not necessitate suppression of the
evidence. A violation of Rule 41(f), such as failure to leave
at the premises an attachment to the warrant, does not
mandate suppression of the evidence. Frisby v. United
States, 79 F.3d 29, 31-32 (6th Cir. 1996). In construing
Rule 41(d), the precursor to Rule 41(f), the Sixth Circuit
recognized that, “although the procedural steps
enumerated in Rule 41(d) are important and should not be
disregarded, they are ministerial and ‘absent a showing
of prejudice, irregularities in these procedures do not void
an otherwise valid search.'” Id. at 32
(quoting United States v. McKenzie, 446 F.2d 949,
954 (6th Cir. 1971)). In the instant case, the officers'
failure to leave a copy of the affidavit did not prejudice
[defendant] in any way: the search would have occurred the
same whether a copy of the affidavit was left at
[defendant's] premises or not. Other than this technical
violation, the search of [defendant's] premises was
valid. Accordingly, the officers failure to leave a copy of
the affidavit does not warrant suppression of the seized
United States v. Lawson, No. 04-137, 2004 U.S. Dist.
LEXIS 27853, *13-15 (E.D. Tenn. Dec. 1, 2004.) Robinson's
motion likewise fails to demonstrate any prejudice flowing
from a failure to leave the affidavit. The warrant itself
would have identified for Robinson the places to be searched
and the items to be seized.
the meritless, tardy, pre-trial motions filed pro se by a