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United States of America v. Elisha Riggleman

January 9, 2013

UNITED STATES OF AMERICA
v.
ELISHA RIGGLEMAN



The opinion of the court was delivered by: R. Clarke VanDervort United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

On December 17, 2012, the undersigned received a letter from Defendant (Document No. 252.) insisting once again pro se as he has repeatedly throughout these proceedings that Special Assistant United States Attorney Debbie Stevens, a Bureau of Prisons attorney, is not qualified and does not have authority to represent the United States in prosecuting him in this matter.*fn1 In this correspondence, Defendant states as follows:

You need to read 28 C.F.R. § 600.1, 28 C.F.R. § 600.3 and 28 U.S.C. § 543, special counsel; go to the research reference, and it refers to 28 C.F.R. § 600.1. Also see 28 U.S.C. § 593. You will see that Debbie Stevens being a government employee is what makes her illegal to be appointed as a SAUSA. You stated in earlier hearings that the government appoints local state prosecutors as SAUSA. That much is true and legal just as long as he/she is not a government employee. And especially when Debbie Stevens works with the victim of the crime. This alone is a conflict of interest as she is seeking a personal outcome of this case. 28 C.F.R. § 600.1 states that before the Attorney General will appoint a special counsel, there must be a conflict of interest or extraordinary circumstances. There is none. If so, show it. What reason is there to appoint a special counsel when there is reg[ular] Assistant U.S. Attorney such as John File.

Defendant indicates further that he and his attorney disagree on the issue whether Ms. Stevens qualifies and has authority to represent the United States in this matter and states that his attorney "tried to deceive me by telling me that 28 C.F.R. § 600.1 and 28 C.F.R. § 603 is over Bill Clinton's case. WRONG! Part 603 of 28 C.F.R. is Bill Clinton's case, and Part 600, 28 C.F.R. applies to Debbie Stevens. Even 28 U.S.C. § 543 special attorney reference research refers to Part 600."

By Order filed on December 18, 2012, the undersigned regarded Defendant's letter as a Motion to Disqualify Ms. Stevens and set the matter for hearing on Thursday, January 3, 2013, having held a telephone conference with counsel to assure their availability on that date. (Document No. 251.) The undersigned also stated that the following Motions which Defendant had filed pro se would be considered to the extent that they pertained to the issue presented by Defendant's letter and the undersigned was authorized to do so: Motion for Judicial Review of FOIA Attached (Document No. 225.); Motion to Have New Appointed Attorney File Pretrial Motions and Suppression/Impeachment Motions (Document No. 227.); Motion to Dismiss Indictment for Violation of the Federal Speedy Trial Act (Document No. 247.); and Motion to Recuse the undersigned (Document No. 249.). By Order filed on December 19, 2012 (Document 253.), United States District Judge Berger denied Defendant's pro se Motions and letters construed as Motions (Document Nos. 242, 243, 245, 247, 248 and 249.) because "[t]he Defendant has been represented by counsel throughout the proceedings herein. This Court has repeatedly ruled that the Court need not consider pro se motions filed by a criminal defendant who is represented by counsel."

On December 27, 2012, counsel for Defendant filed a Motion to Adopt Pro Se Motions (Document No. 254.) Defendant's counsel adopted as his own the Motions which the undersigned identified in the December 18, 2012, Order -- Document Nos. 225, 227, 247 and 249. Respecting Defendant's Motion for Judicial Review of FOIA (Document No. 225.), Defendant's counsel states that Ms. Stevens has produced and will produce documents evidencing her appointment as a Special Assistant United States Attorney, and when she does, "it can very well be that the bases for this motion is moot."*fn2 Respecting Defendant's Motion to Have New Appointed Attorney File Pretrial Motions and Suppression/Impeachment Motions (Document No. 227.), Defendant's counsel requests that the Motion be considered upon the allegation that "Ms. Stevens was an improper person to conduct grand jury proceedings." Defendant's counsel adopts Defendant's Motion to Dismiss Indictment for Violation of the Federal Speedy Trial Act (Document No. 247.). Respecting Defendant's Motion to Recuse the undersigned (Document No. 249.), Defendant's counsel requests that the Motion be considered "insofar as the motion requests that the Court remove Ms. Stevens from the prosecution of this case because Ms. Stevens' appointment, among other things, has the appearance of impropriety in that Ms. Stevens works at the same prison where the defendant is incarcerated and is in a position to control the defendant's life in the institution and she has, at a minimum, a working relationship with the officers and staff at FCI Beckley." Finally, respecting the letter which the undersigned has deemed a Motion to Disqualify Ms. Stevens, Defendant's counsel states two grounds for Ms. Stevens' disqualification: (1) Ms. Steven's appointment "under 28 U.S.C. § 543 is invalid because the United States Attorney has not shown that there is a conflict of interest for his office or other extraordinary circumstances that would cause his staff not to be able to prosecute the case."and (2) there is an appearance of impropriety insofar as Ms. Stevens "has a personal interest in the case because she works with the victim of the alleged crime and . . . Ms. Stevens works for, and is paid by, the agency for which the crime was allegedly committed against."

On January 2, 2013, copies of documents evidencing Ms. Stevens' appointment as a Special Assistant United States Attorney for the period from March 20, 2004, through March 15, 2013, were filed under the Certification of Domestic Records of Regularly Conducted Activity of Ms. Sharon Wilson, custodian of records for the United States Attorney's Office for the Southern District of West Virginia. (Document No. 256.)

On January 3, 2013, the undersigned was informed that Defendant's attorney was ill and could not attend the hearing as scheduled. By Order filed that day, the undersigned rescheduled the hearing for January 8, 2013. (Document No. 257.) Also on January 3, 2013, Defendant filed a Motion to Suppress All Evidence Put Together by (SAUSA) Debbie H. Stevens pro se, and the Motion was referred to the undersigned. (Document No. 258.) Because Defendant's pro se Motion to Suppress raises the same issue to be considered at the January 8, 2013, hearing -- whether Special Assistant United States Attorney Stevens has been and is qualified to represent the United States in these proceedings -- the undersigned notified counsel by Order filed on January 4, 2013, that the Motion would be considered along with the others then. (Document No. 265.) By Order also filed on January 4, 2013, District Judge Berger denied Defendant's pro se Motion to Suppress. (Document No. 268.)

On January 8, 2013, Defendant's counsel filed his Second Motion to Adopt Pro Se Motions (Document No. 270.) adopting Defendant's pro se Motion to Suppress (Document No. 258.) as his own. Defendant's counsel states that "[i]t is the Defendant's position that counsel for the government was improperly appointed and has no legal authority to present his case to the grand jury and, therefore, the indictment should be dismissed. Counsel for the Defendant also adopts the pro se Defendant's argument that there is a conflict of interest, or appearance of a conflict of interest, for the SAUSA to be prosecuting the Defendant when the SAUSA works with and has close contacts with the reported victim of the crime. Counsel for the Defendant also adopts, for the sake of argument, the pro se Defendant's argument that legal items and legal research were taken from his cell, without a Court order and without authority ...


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