United States v. Danny L. Mullins, Jr. — Opinion and Order, Western District of Virginia (Document 801)

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A seven-page Opinion and Order filed May 16, 2022 as Document 801 in United States of America v. Danny L. Mullins, Jr., Case No. 1:21CR00024-018 (Case 1:21-cr-00024-JPJ-PMS), in the U.S. District Court for the Western District of Virginia, Abingdon Division, by Judge James P. Jones. It elaborates on oral rulings of May 12, 2022 on appointed counsel Linda G. Willis's Motion to Withdraw as Counsel and the defendant's Motion to Remove Current Counsel and to Proceed as a Pro Se Litigant. The court finds the request for self-representation timely, clear and unequivocal, and knowing, intelligent, and voluntary, and designates Willis as standby counsel limited to procedural matters. It denies the defendant's oral motion to be released from detention pending trial.

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“United States v. Danny L. Mullins, Jr. — Opinion and Order, Western District of Virginia (Document 801).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/opinion-and-order-danny-l-no-1-21-cr-00024-dkt-801-694f0d3a97/, SHA-256 f1150e05d4f2ae5ca1a911026f95b34ccb5d57cdbb966822a479c761ecbb88e8.

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Case 1:21-cr-00024-JPJ-PMS Document 801 Filed 05/16/22 Page 1 of 7 Pageid#: 6702

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION

UNITED STATES OF AMERICA )
)
) Case No. 1:21CR00024-018
)
v. ) OPINION AND ORDER
)
DANNY L. MULLINS, JR., ) JUDGE JAMES P. JONES
)
Defendant. )

Daniel J. Murphy, Assistant United States Attorney, Abingdon, Virginia, for
United States; Linda G. Willis, Bedford, Virginia, for Defendant.

This Opinion and Order elaborates on the oral rulings made by the court on

May 12, 2022, on the Motion to Withdraw as Counsel filed by appointed counsel,

Linda G. Willis, as well as the defendant’s Motion to Remove Current Counsel and

to Proceed as a Pro Se Litigant.

The defendant, Danny L. Mullins, Jr., is the last of 23 persons charged by

Indictment returned April 28, 2021, charging crimes relating to the submission of

fraudulent applications for government unemployment benefits because of the

COVID-19 pandemic. All of the other defendants have either gone to trial or pled

guilty.

From the beginning, the defendant has asserted his innocence, claiming that

he was entitled to such benefits, although he in fact never received them. John E.
Case 1:21-cr-00024-JPJ-PMS Document 801 Filed 05/16/22 Page 2 of 7 Pageid#: 6703

Jessee, a member of the court’s Criminal Justice Act panel, was appointed for the

defendant after his arrest. On May 26, 2021, the magistrate judge directed that the

defendant be evaluated for competency by a local licensed clinical psychologist, but

the psychologist later reported that the defendant had refused to meet with him.

Accordingly, on July 12, 2021, the magistrate judge committed the defendant to the

custody of the Bureau of Prisons for a psychiatric or psychological examination.

By written report dated December 27, 2021, received by the court on January

5, 2022, a forensic psychologist with the Bureau of Prisons reported that in her

opinion the defendant was competent to stand trial. The defendant was returned to

this court and on January 11, 2022, after a hearing, the magistrate judge agreed.

The defendant was unable to get along with his court-appointed lawyer and

on several occasions the attorney asked that he be relieved. Finally, on the attorney’s

third motion in this regard, the magistrate judge, by order of February 2, 2022,

permitted attorney Jessee to withdraw. Attorney Linda G. Willis was appointed in

his place. In order to adequately prepare for trial, attorney Willis moved for a

continuance, which was granted, and the trial was reset by the court to begin August

9, 2022.

The government offered a plea agreement to the defendant under Federal Rule

of Criminal Procedure 11(c)(1)(C), which, if accepted by the defendant and the

court, would likely have resulted in a sentence of time served. The defendant

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Case 1:21-cr-00024-JPJ-PMS Document 801 Filed 05/16/22 Page 3 of 7 Pageid#: 6704

rejected the plea offer, and the present motions were filed by attorney Willis and the

defendant.

Motion for Self-Representation.

As recently noted,

The right for a defendant to represent himself has long been
acknowledged in the federal courts. Faretta v. California, 422 U.S.
806, 813 (1975). However, before a defendant is permitted to assert
this right, “he should be made aware of the dangers and disadvantages
of self-representation, so that the record will establish that he knows
what he is doing and his choice is made with eyes open.” Id. at 835
(internal quotation marks and citation omitted). The United States
Court of Appeals for the Fourth Circuit has stated that the applicable
standard for self-representation is that the defendant’s assertion of the
right must be “(1) clear and unequivocal; (2) knowing, intelligent and
voluntary; and (3) timely.” United States v. Bush, 404 F.3d 263, 271
(4th Cir. 2005).

United States v. Jaqu, No. 3:19-CR-302-JMC, 2021 WL 1268377, at *1 (D.S.C. Apr.

6, 2021). In the present case, in light of the current August trial date, I find that the

request is timely. The defendant’s assertion of this right is certainly clear and

unequivocal. Based on my review of the record, and my extended colloquy with the

defendant at the Faretta hearing, I find that his request is knowing, intelligent, and

voluntary.

The defendant is 50 years old. He reports that he had a normal childhood and

attended regular classes in school but dropped out of high school in the 10th grade.

He later received his GED and has since attended technical school for building trades

and welding. He has a lengthy work history, as well as an extensive criminal history,
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Case 1:21-cr-00024-JPJ-PMS Document 801 Filed 05/16/22 Page 4 of 7 Pageid#: 6705

including assaults, forgery, identity theft, and drug crimes. He was on state

supervised probation at the time of his arrest in this case.

According to the evaluation conducted at the Bureau of Prisons, the defendant

has a self-reported history of mental health treatment between 2000 and 2005 by

medication with antidepressants but he denied any psychiatric hospitalizations. He

advised the evaluator that he identified himself as manic-depressive, but “ha[s]

learned to deal with this issue without medication.” Report 4, ECF No. 576. The

evaluator found that the defendant’s “thought processes were rational, coherent, and

organized” and “devoid of delusional content.” Id. at 5. He received a psychiatric

consultation at the Bureau of Prisons, but the psychiatrist advised that “medications

did not appear indicated.” Id.

The Bureau of Prisons report further noted that the defendant “displayed an

ability to communicate adequately” and is “capable of understanding his options and

making rational choices among them.” Id. at 8. Moreover, according to the

evaluator, “[t]he defendant appears to have the reasoning capability to choose

between alternatives when important decisions are at stake.” Id.

My observations of the defendant in court proceedings do not lead me to any

conclusions contrary to the evaluation report. While it may be correct that “the

ability to stand trial without counsel requires a level of [mental] competence that

exceeds that required to stand trial with counsel,” United States v. Roof, 10 F.4th

-4-
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314, 362 (4th Cir. 2021), petition for cert. docketed, No. 21-7234 (U.S. Mar. 1,

2022), I find that the requisite competency exists here. One may certainly question

the wisdom of the defendant’s decision to represent himself, but I am obligated to

accept that decision under the circumstances of this case.1 I have appropriately

warned the defendant of the dangers of self-representation and assured myself that

“the defendant knows the charges against him, the possible punishment[,] and the

manner in which an attorney can be of assistance.” United States v. King, 582 F.2d

888, 890 (4th Cir. 1978).

Appointment of Standby Counsel.

When a defendant chooses to represent himself, the court may appoint standby

counsel to assist him. See McKaskle v. Wiggins, 465 U.S. 168, 184 (1984). I have

determined to appoint standby counsel for the defendant. The defendant’s present

counsel, Linda G. Willis, has agreed to this limited status.

It is understood that “the pro se defendant is entitled to preserve actual

control over the case he chooses to present to the jury.” Id. at 178. Standby counsel’s

1
“A trial court evaluating a defendant’s request to represent himself must traverse
a thin line between improperly allowing the defendant to proceed pro se, thereby violating
his right to counsel, and improperly having the defendant proceed with counsel, thereby
violating his right to self-representation.” Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir.
1995) (en banc) (internal quotation marks, alterations, and citations omitted).

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role is to do what the defendant requests and the court permits, without interfering

with the defendant’s right to self-representation. The court has “broad discretion to

guide what, if any, assistance standby, or advisory, counsel may provide to a

defendant conducting his own defense.” United States v. Lawrence, 161 F.3d 250,

253 (4th Cir. 1998). In this case, particularly because the defendant has made clear

that he does not need or trust a lawyer’s advice as to substantive issues, I will limit

standby counsel’s role to purely procedural matters at trial, as well as assisting in

any pretrial issues, such as obtaining the attendance of defense witnesses, if and

when such advice or assistance is expressly requested by the defendant.2

Request to be Released on Bond.

Mullins has been in custody since his arrest on April 2, 2021. He requests

that he be released on conditions in order to allow him to better prepare for trial. In

ordering his detention, the magistrate judge found that the “clear and convincing

evidence show[ed] that the defendant is a danger to the community or others if

released pending trial in that there are no conditions or combinations of conditions

by which the defendant will abide.” Order 1, Apr. 14, 2021, ECF No. 18. This

finding was supported by detailed factual determinations, none of which have been

2
It is held that a defendant cannot bring an ineffective assistance of counsel claim
based on standby counsel’s actions or inactions since there is no constitutional right to
standby counsel. United States v. Oliver, 630 F.3d 397, 413–14 (5th Cir. 2011) (citing
cases).
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called into question. The issues at the defendant’s trial are unlikely to be

complicated or prolonged. He fully understands the nature of his defense and has

the assistance of standby counsel, if needed, to obtain any relevant witnesses or other

evidence. Accordingly, I will not remove his present detention.

Conclusion.

For the reasons stated, it is ORDERED as follows:

1. The Motion to Withdraw as Counsel, ECF No. 792, is GRANTED IN

PART and DENIED IN PART. Attorney Linda G. Willis is terminated as

regular counsel, and instead is designated as standby counsel with the

duties as described herein. If at any time attorney Willis is uncertain of

her obligations hereunder, she may apply to the court on an ex parte basis

for the court’s direction;

2. The defendant’s Motion to Remove Current Counsel and to Proceed as a

Pro Se Litigant, ECF No. 791, is GRANTED;

3. The defendant’s oral motion to be released from detention pending trial is

DENIED; and

4. The Clerk shall send a copy of this Opinion and Order to the defendant at

his place of confinement.

ENTER: May 16, 2022

/s/ JAMES P. JONES
Senior United States District Judge
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