Order — No. 1:21-cr-00216 (Dkt. 136, W.D. Tex.)

Summary

An order in United States v. Michael Fullerton, No. 1:21-CR-00216-RP, in the U.S. District Court for the Western District of Texas, Austin Division, signed May 1, 2023 by Magistrate Judge Dustin M. Howell. It denies the defendant's Motion for Appointment for New Counsel or Mediation (Dkt. 124) and his appointed attorney's motion to withdraw (Dkt. 129), which the Government opposes (Dkt. 128). The order recounts the procedural history, starting with an Information filed October 27, 2021 charging 11 counts related to alleged fraud in connection with the Paycheck Protection Program, and a trial date of May 30, 2023. It states that the Government estimated a change of counsel could delay trial by 6-10 months, and that the Court is not convinced the attorney-client relationship is beyond repair.

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“Order — No. 1:21-cr-00216 (Dkt. 136, W.D. Tex.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/order-no-1-21-cr-00216-dkt-136-w-d-tex-a1b5b06ca5/, SHA-256 9e56683270e0f4fb4c71b6fa0db51ec71e0f24ce4adb5baf6bf89121752979cb.

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

UNITED STATES OF AMERICA, §
Plaintiff §
§
v. § No. 1:21-CR-00216-RP
§
(1) MICHAEL FULLERTON, §
Defendant §

ORDER

Before the Court are Defendant Michael Fullerton’s Motion for Appointment

for New Counsel or Mediation, Dkt. 124, along with a corresponding motion filed by

his (second) appointed attorney, James Young, Dkt. 129. The Government opposes

the motions. Dkt. 128. The District Court referred the motions to the undersigned for

disposition. After holding a hearing, the Court has determined that the motions

should be denied.

Before addressing the concerns expressed in the motions, a quick summary of

the relevant procedural background is warranted:

• October 27, 2021: Information filed charging Fullerton with 11 counts
related to fraud alleged in connection with the Paycheck Protection
Program. Fullerton was representing himself at this point, though he
had been represented by David Botsford prior to the charges being filed.
Dkt. 1.

• November 1, 2021: Assistant Federal Public Defender Horatio Aldridge
is appointed as standby counsel. Dkts. 9, 10.

• November 23, 2021: The Federal Public Defender is appointed to
represent Fullerton. Dkt. 22. Assistant Federal Public Defender Jesus
Salinas then appears. Dkt. 25.

1
• September 2022: Mr. Salinas moves to withdraw citing a breakdown in
trust with his client. Dkt. 79. Fullerton joined the request, citing various
alleged shortcomings on his attorney’s part. Dkt. 84. The undersigned
set the motion for hearing, Dkt. 82, and granted the motion after holding
that hearing. Dkt. 88. The Court permitted Mr. Salinas to withdraw and
appointed James Young, Fullerton’s present counsel, to take his place.
Id. At the hearing and in the order, the Court advised Fullerton that
“future requests for new appointed counsel will not be well-taken” and
that “the U.S. Court of Appeals for the Fifth Circuit has observed that
‘a persistent, unreasonable demand for dismissal of counsel and
appointment of new counsel … is the functional equivalent of a knowing
and voluntary waiver of counsel.’” Id. (quoting United States v. Moore,
706 F.2d 538, 540 (5th Cir. 1983)).

• December 13, 2022: The District Court granted Fullerton’s motion for a
continuance and set his case for trial on May 30, 2023 (four weeks and
one day from the date of this order).

• April 2023: Fullerton filed the present motion, asking for a new
appointed attorney, Dkt. 124; his attorney subsequently moved to
withdraw, Dkt. 129.

Fullerton’s motion once again cites a litany of grievances against his appointed

counsel, mirroring his filing regarding Mr. Salinas. At the hearing, Fullerton

expressed his concerns that, among other things, his counsel had not met with him

regularly enough, did not appear to be ready or willing to proceed to trial, had not

disclosed all of the discovery received from the government, and did not appreciate

the importance of various financial records he had transmitted to his attorney.1 The

Government responded that Fullerton’s filings demonstrate that Young has been

responsive, and while they may disagree on strategy, that alone does not represent

1 Fullerton also resorted to ad hominem attacks on his attorney, accusing him of being
“dishonest” and “lying” to the Court. The Court admonished Fullerton at the hearing that
such unfounded attacks would not be tolerated. The Court warns Fullerton that further ad
hominem attacks and accusations may subject him to sanctions. See, e.g., Merkle v. Gragg,
No. CV SA-19-MC-740-XR, 2019 WL 6327584, at *12 n.3 (W.D. Tex. Nov. 26, 2019)).
2
good cause to remove an attorney, especially when the parties are so close to trial, as

they are in this case. See Dkt. 128, at 3-4. The Government estimated at the hearing

that granting Fullerton’s motion at this stage could delay trial by 6-10 months, given

the complexity of the financial transactions involved.

The undersigned agrees with the Government. It is clear that Fullerton and

his present attorney have disagreed on strategy to date. But at the hearing, both

Fullerton and his attorney expressed a willingness and desire to go to trial. Based on

those representations, the undersigned is not convinced that the attorney-client

relationship in this case is beyond repair, and that substituting an attorney yet again,

at this late stage of the case, would not only prejudice the Government but likely

Fullerton himself. Moreover, based on Fullerton’s conduct in this case, the

undersigned is confident that this cycle would just repeat itself again if a new

attorney were to be substituted.

For all of these reasons, the undersigned DENIES Fullerton’s motion for new

counsel and his attorney’s motion to withdraw, Dkts. 124, 129.

SIGNED May 1, 2023.

DUSTIN M. HOWELL
UNITED STATES MAGISTRATE JUDGE

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