Submitted: April 7, 2017
from United States District Court for the Southern District
of Iowa - Des Moines
SMITH, Chief Judge, SHEPHERD, and FENNER,  District Judge.
FENNER, District Judge.
J. Prucha was charged with conspiracy, mail fraud, producing
child pornography, distribution of Xanax to persons under the
age of 21, producing child pornography while required to
register as a sex offender, and attempting to tamper with
witnesses. His trial commenced on February 22, 2016. On the
third day of trial, Prucha moved to proceed pro se for the
fourth time. The district court denied Prucha's motion. At
trial, a jury found Prucha guilty on all counts. Prucha now
directly appeals the district court's order denying him
leave to proceed pro se. We affirm.
months leading to trial, Prucha filed several pro se motions.
His first set of pro se motions was filed on November 10,
2015 and included a motion to proceed pro se and a request
for a hearing regarding access to discovery requests. On
December 14, 2016, a magistrate judge held a hearing on these
motions. Following an ex parte discussion with the court and
defense counsel, Prucha withdrew his motion to proceed pro
se. The court then clarified what discovery was available to
Prucha, noting that he cannot himself have access to certain
discovery under the law. The court further granted
Prucha's request to allow a private investigator access
to him without presence of counsel.
that month, Prucha filed a second motion to proceed pro se
and to establish a plan for discovery. Prucha admitted he had
reviewed discovery but wanted free access to the discovery to
"check and re-check" it. A second hearing before
the magistrate judge was held and Prucha again withdrew his
motion to represent himself.
February 22, 2016, the trial commenced with jury selection.
After jury selection had concluded, the clerk's office
docketed Prucha's third written motion to proceed pro se.
He outlined the discovery issues addressed by the magistrate
judge and alleged that defense counsel had not done
everything he wanted him to do, despite the fact that his
prior discovery requests had been provided. He stated that
"he has a slightly better defense proceeding pro se as
he himself knows most of the answers the witnesses will
provide and can impeach them when necessary with other
witnesses['] testimony engraved in the defendants [sic]
memory and documents." He further stated that he planned
to request to proceed pro se "for some time."
next morning, the district court addressed Prucha's
motion to proceed pro se. Through counsel, Prucha stated that
he was not seeking a continuance at that time, but wanted to
know "when he can ask to be his own lawyer during the
course of the trial once the jury is sworn." The court
informed him that he could ask at any time through defense
counsel. Prucha then withdrew his motion to proceed pro se.
on the third day of trial, Prucha moved to proceed pro se for
the fourth time. This occurred just before the government was
going to show damaging evidence to the jury. When asked why
he wanted to represent himself, Prucha first said it was
because "everything is in my mind and he's just not
getting all of the questions out that I would like to get
out. I write them down and they still don't make it
out." He then went on to complain about his access to
discovery. The district court twice asked Prucha if he was
prepared to represent himself, to which he responded, "I
haven't seen all the discovery." The court denied
his request to proceed pro se. It is from this denial that
Prucha seeks review.
did not renew the motion during the remainder of the trial.
In fact, the next day, Prucha wrote what he stylized as a
"notice to the court." He explained that his first
three motions to proceed pro se were filed to ensure he
received access to discovery and conceded they had been
addressed by the court. He differentiated his fourth motion
to proceed pro se by contending defense counsel was
inadequate at trial. However, he did not renew his motion to
proceed pro se. Rather, Prucha stated that he would like to
hire new counsel.
testified at length during the trial. A jury returned a
guilty verdict on all counts on March 1, 2016. Prucha was
allowed to represent himself at his sentencing with defense
counsel remaining as stand-by counsel. The court sentenced
Prucha to 840 months' imprisonment on June 23, 2016.
Prucha timely filed his notice of appeal on June 29, 2016,
arguing the court's denial of his fourth motion to
proceed pro se violated his rights to self-representation.