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United States v. Girod

United States District Court, E.D. Kentucky, Central Division, Lexington

May 22, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
SAMUEL A. GIROD, Defendant/Movant.


          Danny C. Reeves United States District Judge.

         Defendant Samuel Girod, a self-described Amish farmer, manufactured and sold in interstate commerce products called Chickweed Healing Salve, TO-MOR-GONE, and R.E.P. Following a three-day trial beginning February 27, 201');">17, a jury convicted him of various offenses, including failing to register with the Food and Drug Administration, introducing misbranded drugs into interstate commerce, witness tampering, and failing to appear. He was sentenced to 72 months' imprisonment, to be followed by three years of supervised release. [Record No. 1');">141');">1] The United States Court of Appeals for the Sixth Circuit affirmed the conviction on appeal.

         Girod has now filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2555 and the Court has performed a preliminary review of the motion in accordance with Rule 4 of the Rules Governing 2255 Proceedings. Because it plainly appears that Girod is not entitled to relief, this collateral proceeding will be dismissed.


         A federal grand jury indicted Girod in October 201');">15, charging him with eight counts of introducing misbranded products into interstate commerce in violation of 21');">1 U.S.C. §§ 331');">1(a) and 333(a)(2); one count of failing to register with the Food and Drug Administration (“FDA”) in violation of 21');">1 U.S.C. §§ 331');">1(p) and 333(a)(2); one count of conspiring to prevent FDA officers from discharging their duties in violation of 1');">18 U.S.C. § 372; and one count of witness tampering in violation of 1');">18 U.S.C. § 1');">151');">12(b)(2)(A). Girod retained attorney Charles McFarland prior to his initial appearance on November 2, 201');">15. However, McFarland filed a motion to withdraw on April 9, 201');">16, reporting that Girod had terminated the attorney-client relationship. Girod advised McFarland that he would be representing himself going forward and requested that McFarland withdraw from the case as soon as possible. [Record No. 43]

         A United States Magistrate Judge scheduled a hearing on McFarland's motion to withdraw, and Attorney Michael Fox appeared as court-appointed stand-by counsel. The Court suggested that Girod take several days to consider self-representation, and offered to conduct an additional hearing at a later date, but Girod insisted on proceeding with his decision that day. The Court then recessed for an hour, during which time Girod met with attorney Fox regarding his desire to proceed pro se.

         Upon reconvening, the magistrate judge conducted a Faretta hearing, in which he

asked whether Defendant had legal training, whether he had represented himself in a criminal proceeding before, whether he understood the charges against him and the serious penalties he faced if convicted, whether he understood that the Court could not assist him at trial, and whether he understood the various Federal Rules and that the Court would be under no obligation to relax application of the Rules to a pro se defendant, among many other questions. The Court, referencing all phases of the case (discovery, trial, sentencing, if applicable), also warned Defendant about the disadvantages of representing himself.

[Record No. 46]. See Faretta v. California, 422 U.S. 806 (1');">1975).

         The magistrate judge determined that Girod “[knew] what he was doing in choosing to proceed pro se and made his decision with his ‘eyes wide open' to the consequences and alternatives.” The Court, however, strongly cautioned Girod that his decision to represent himself was a “poor calculation.” Despite Girod's objection to the appointment of stand-by counsel, the Court appointed attorney Fox in that limited role. [Record No. 46]

         Girod then proceeded with a series of frivolous filings, mostly based on “sovereign citizen” arguments. These filings included a motion to dismiss the indictment, which the Court denied on June 24, 201');">16. [Record No. 70] Girod promptly filed a notice of appeal from the non-appealable order. And when Girod did not attend a status conference on August 26, 201');">16, the Court issued a warrant for his arrest. Girod remained a fugitive until he was eventually taken into custody on January 1');">12, 201');">17. His bond was revoked and a jury trial was scheduled for February 27, 201');">17.

         The federal grand jury returned a superseding indictment on February 2, 201');">17, which charged Girod with failing to appear at the status conference in violation of 1');">18 U.S.C. § 31');">146(a)(1');">1) in addition to all of the previous charges. [Record No. 90] Girod was arraigned on the superseding indictment on February 6, 201');">17. Despite the Court's repeated admonishment about the perils of proceeding pro se, Girod reaffirmed his desire to represent himself. [Record No. 1');">107');">1');">107, p. 4] Noting that the case had changed slightly due to the addition of the failure to appear charge, the Court asked the defendant whether he needed additional time to prepare for trial. Girod responded that he did not. Id. at 1');">10');">p. 1');">10.

         Despite his earlier assertion to the contrary, Girod moved for a continuance on February 1');">17, 201');">17, stating that he needed additional time to “come up to speed as how to handle a jury trial.” [Record No. 1');">102] The Court denied this motion, noting that Girod's steadfast desire to represent himself could not be used to disrupt or manipulate the trial process. [Record No. 1');">103]

         During a pretrial conference on February 22, 201');">17, Girod requested a continuance of 90 days in which to learn how to conduct a jury trial. [Record No. 1');">106, p. 8, 1');">10] The government objected to the request, noting that there had already been numerous continuances and prejudice to the government would be severe if the request were granted since it had already made accommodations for several witnesses to travel from out of state to attend the trial. After considering all of these concerns and the straightforward nature of the new charge, the Court denied Girod's oral motion for a continuance.

         A jury trial commenced on February 27, 201');">18. The government's first witness was Nicholas Paulin, a consumer safety officer with the FDA. [Record No. 1');">133');">1');">133, 1');">10');">p. 1');">109');">1');">10');">p. 1');">109] Upon conclusion of the government's ...

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