United States v. Kowalski

1

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT KOWALSKI, Defendant.

No. 19 CR 226-1

United States District Court, N.D. Illinois, Eastern Division

February 6, 2024

MEMORANDUM OPINION

VIRGINIA M. KENDALL, JUDGE

On March 10, 2023, a jury convicted Robert Kowalski on conspiracy to embezzle and aiding and abetting embezzlement bankruptcy fraud; and tax crimes. (Dkt. 939). Kowalski has since filed numerous post-trial motions, including the two at issue here: a motion for a new trial, (Dkt. 971), and a motion for judgment of acquittal, or in the alternative, a new trial, (Dkt. 993). Kowalski does not challenge the sufficiency of the Government's evidence presented at trial. Instead, he focuses his ire on the allegedly deceitful actions of his standby counsel, a technological mishap involving a Chromebook, and his apparent inability to access and review discovery. For the following reasons Kowalski's motions [971, 993] are denied.

DISCUSSION

A. Motion for a New Trial

“Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” United States v. Foy, 50 F.4th 616 622 (7th Cir. 2022) (quoting Fed. R. Crim. P. 33(a)). A jury verdict is not overturned lightly, however. See United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994). A motion for a new trial is granted only in “the most extreme cases,” United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998), and “only if there is a reasonable possibility that the trial error had a prejudicial effect upon the jury's verdict,” United States v. Maclin, 915 F.3d 440, 444 (7th Cir. 2019). This is not an extreme case.

I. Standby Counsel Steven Shanin and the Chromebook

From the beginning of this case, Kowalski has insisted on representing himself. On March 11, 2019, Judge Gilbert appointed Imani Chiphe to serve as Kowalski's counsel in his criminal case. (Dkts. 13, 14). After the case was transferred to this Court, Kowalski filed a motion to withdraw his appointed attorney, arguing that his bankruptcy proceeding was “inextricably linked” to his criminal case and Chiphe was unqualified to represent Kowalski in both matters. (Dkt. 57 at 3; see also Dkts. 47, 51). The Court corrected Kowalski: Chiphe was not representing him in his bankruptcy proceeding. Rather, Chiphe only informed the bankruptcy court about the status in the criminal case and that Kowalski would be invoking his Fifth Amendment right not to incriminate himself. Thus, the Court denied the motion to withdraw because Kowalski did not have sufficient facts to support it. (Dkt. 64).

On November 10, 2020, Kowalski again filed a motion to allow withdrawal of his Court-appointed counsel and proceed pro se. (Dkt. 167). This time, the Court conducted a Faretta hearing to determine his ability to litigate the case and to warn him of the risks of self-representation. (Dkt. 173). Although granting his motion, the Court found it prudent to have Chiphe serve as Kowalski's standby counsel. (Id.) For a period, Chiphe assisted Kowalski in filing motions and requesting computer and printer access. Then, in a span of a week in April 2021, Kowalski filed two motions to dismiss his standby counsel for ineffective assistance of counsel. (Dkts. 319, 327). He argued that Chiphe and the Federal Defender Program were not forwarding the discovery to Kowalski, filing motions in the wrong court, and possibly colluding with the Government to thwart Kowalski's preparation. (Dkt. 319 at 1-3). The Court denied his motions and reminded Kowalski that he did not have a right to standby counsel and could not argue that Chiphe was ineffective when Kowalski elected to proceed pro se. (Dkt. 335). Afterward, Kowalski's disdain for Chiphe grew to the point where Kowalski refused to work with Chiphe at all and the Court considered providing Kowalski with a new standby counsel. (Dkt. 1071 at 24:19-25:13). On April 15, 2022, the Court appointed Steven Shanin to that role. (Dkt. 701). And soon after, Kowalski's grudge against Shanin began and has been a recurring theme in this case.

To start, Kowalski argues that Shanin “abdicated his role as a well recognized [sic] safeguard, a backstop, for the defendant's right to counsel.” (Dkt. 993 at 2). He accuses Shanin of “[c]hoosing petty profiteering of a new upgraded computer at the expense of [Shanin's] duty to assist an accused [Kowalski] fighting for his freedom.” (Id.; see also Dkt. 971 at 4). That “profiteering” refers to the Chromebook incident. In late 2022, Kowalski requested a computer to review discovery in preparation for his trial. Instead of purchasing a new laptop, Kowalski claims that Shanin allegedly misappropriated CJA funds to buy himself a new computer and gave Kowalski an old “2013 model Chromebook.. .one that would never work under any circumstance.” (Dkt. 993 at 3; see also Dkt. 971 at 3, 5). After the first day of trial, the parties attempted to open some discovery files on the Chromebook but ran into technological issues. Seizing that moment, Kowalski writes that the “Chrome Operating System is inherently incompatible with the government's Microsoft Windows operating system based discovery.” (Dkt. 993 at 3). Moreover, Kowalski accuses Shanin and the Government of colluding and engaging “in a candorless [sic] campaign of misinformation” about the Chromebook's functionality. (Id. at 2; see also Dkt. 971 at 8). The Court ordered Shanin to procure a second laptop with Microsoft Windows operating system, but Kowalski asserted that his “pretrial defense preparation cannot occur after trial has begun.” (Dkt. 993 at 4).

Thus, Kowalski contends that his due process^[1]and Faretta rights were violated: “he was tried without having had any opportunity.. .to prepare his defense.” (Id. at 4 (emphasis added); see also Dkt. 971 at 5 (“[T]he failure of standby counsel Shanin to comply with court order precluded any pretrial preparation whatsoever.”)). Shanin's alleged interference left the standby counsel “in sole de facto control of the organization and potential content of the defense,” “preventing [Kowalski] from making or formulating tactical decisions.” (Dkt. 993 at 6; see also Dkt. 971 at 7). Changing targets, Kowalski asserts that the Government's Brady obligations were “absolutely shredded where government tenders millions of electronic documents” but takes active steps to ensure Kowalski could “never gain access” to them. (Dkt. 1219 at 7; see also Dkt. 993 at 4 (“Robert had been denied pretrial access to all discovery material including Brady materials.”); Dkt. 971 at 7 (“Prosecution team ensured.that their Brady discovery material provided would remain hidden in plain view.”)). He “made every effort to prepare a defense and was thwarted in those efforts.” (Dkt. 993 at 6; see also id. at 10 (“During the critical period of pretrial between August 17, 2022 until February 14, 2023[,] an indigent Faretta defendant was deliberately left bereft of any capacity to prepare his defense.”)). Therefore, as a victim of Shanin's and the Government's machinations, Kowalski believes that the Court should have continued the trial date.

Behind this loud rhetoric, Kowalski's position is straightforward: the Court should grant a new trial because (1) he was unable to access and review discovery in preparation for his defense; (2) Shanin interfered with Kowalski's representation; and (3) the Court erred in denying his motions to continue the trial. But here is the rub: there are no facts to support Kowalski's arguments.

a. Discovery

The Court will first address Kowalski's broad assertion that he suffered a due process violation because he was unable to access and review discovery. A scan of the docket's timeline exposes his claims as frivolous and factually baseless:

• On May 7, 2019, the Court issued a protective order governing the discovery production to Kowalski. (Dkt. 50).

• On April 16, 2021, the Government stated that they produced, and re-produced, all electronic and written discovery to date, including Washington Federal's business records and Kowalski's personal records. (Dkt 337 at 9:20-11:5). They further outlined in a letter where Kowalski could find documents in the productions and offered to provide additional assistance. (Id. at 10:7-12). Discovery was being produced on a rolling basis. (Id. at 10:13). Kowalski attested that he had “gone through everything.” (Id. at 11:22).

• On June 24, 2021, the Government informed the Court that they had sent Kowalski all the discovery to date. (Dkt. 377).

• On July 8, 2021, the Government stated that they had re-produced previously tendered discovery, made additional discovery productions, and provided correspondence and summary charts detailing where to locate certain documents and evidence in the productions. (Dkt. 395).

• On July 12, 2021, the Court confirmed that the Government provided an external hard drive and thumb drive containing the above discovery. (Dkt. 401). The Court also requested the Metropolitan Correctional Center (MCC) to provide Kowalski with more computer time in the law library. (Id.)

• On July 26, 2021, the MCC extended Kowalski's law library time to three hours a day and provided him an additional hour in the quarantine unit to review discovery. (Dkt. 415). The Government tendered to Kowalski “a number of paper copies of discovery so he can review things in his cell when he's not allowed computer time.” (Dkt. 423 at 2:24-3:2). An IT specialist also verified that Kowalski could access the hard drive's files. (Dkt. 415).

• On October 1, 2021, the Government stated that since July 2021, Kowalski had at least three hours a day, seven days a week, to use the MCC's designated computers, review discovery, and access other electronic legal materials. (Dkt. 448 at 1).

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