IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

v. 09-CR-121-S

SHANE C. BUCZEK,

Defendant.

THE GOVERNMENT’S MEMORANDUM OF LAW IN

OPPOSITION TO THE POST-TRIAL MOTION
(DOCKET NO. 143) FILED BY DEFENDANT BUCZEK

THE UNITED STATES OF AMERICA, by and through its attorneys,

William J. Hochul, Jr., United States Attorney for the Western

District of New York, and Mary C. Baumgarten, Assistant United

States Attorney, hereby files this memorandum of law in opposition

to the motion filed by defendant, SHANE C. BUCZEK, asserting that

he received ineffective assistance from his stand-by counsel during

the proceedings. See Docket No. 143. Because the requested relief

is not supported by either the applicable law or the facts of this

case, the government respectfully requests that the motion filed by

defendant BUCZEK be denied in its entirety.

 DOCKET NUMBER 143

I. There is no basis in law or fact to support defendant BUCZEK’s

claim of ineffective assistance of stand-by counsel.

Defendant BUCZEK contends that he did not receive effective

assistance of his court-appointed standby counsel at various points

during the trial proceedings. Specifically, defendant BUCZEK

asserts that his standby counsel ineffectively addressed the

government’s motion in limine seeking to limit the introduction of

evidence to support the defendant’s “good faith” argument and the

jury instruction on that issue, and stemming from what defendant

BUCZEK characterizes as a “conflict of interest” between his stand-

by counsel and the Court, because standby counsel previously was

employed as a law clerk to the Court. See Docket 144.

The government responded to defendant’s motion challenging the

Court’s determination that defendant BUCZEK understood the dangers

and disadvantages of self-representation before for validly waiving

his Sixth Amendment right to counsel, and relies on that analysis

and argument here. See Docket No. 164. The Court continued the

appointment of counsel to assist defendant BUCZEK in a standby

capacity, after defendant BUCZEK sought to represent himself at

trial, based in part, upon the defendant’s strategic choice to

present his “good faith” defense himself. Standby counsel acted in

2
that capacity during the pretrial proceedings, shortly before

trial, and during the trial proceedings before this Court.

It is well-established that there is “no constitutional right

to hybrid representation . . . where [the defendant] shares the

duties of conducting [his] defense with a lawyer.” See United

States v. Morrison, 153 F.3d 34, 36 (2d Cir. 1998), citing United

States v. Schmidt, 105 F.3d 82, 90 (2d Cir.), cert. denied, 522

U.S. 846 (1997). The Second Circuit has held in United States v.

Schmidt, that “without a constitutional right to standby counsel,

a defendant is not entitled to relief for the ineffectiveness of

standby counsel.” See United States v. Morrison, 153 F.3d at 36.

Certainly, it might be appropriate, in limited circumstances,

for a court to consider a claim of ineffective assistance of

standby counsel if the title of “standby counsel” was just that, a

title, and the record demonstrated that standby counsel was in fact

acting as counsel for a criminal defendant throughout the

proceedings. See United States v. Morrison, 153 F.3d at 36.

However, in Morrison, the Second Circuit declined to examine the

conduct of standby counsel on a claim of ineffective assistance of

counsel although that standby counsel examined and cross-examined

some witnesses, and gave the defense summation. Id. In this case,

however, standby counsel was just that, a resource that defendant

3
BUCZEK consulted at various stages of the proceedings, which is

amply reflected in the record. Defendant BUCZEK retained all of

his rights to represent himself, gave his opening statement,

conducted cross-examination of the witnesses called on behalf of

the government, argued motions, objected during the proceedings,

called his own witnesses, conducted direct examination of those

witnesses, and gave his closing argument to the jury. Defendant

BUCZEK’s conduct throughout the proceedings repeatedly reaffirmed

that he was representing himself. “Having chosen to represent

[himself], [he] may not now be heard to complain that [his] own

shortcomings spell out some sort of constitutional deprivation.

See United States v. Morrison, 105 F.3d at 89-90. Thus, there is

no need for this Court to examine the effectiveness of defendant

BUCZEK’s standby counsel.1 Id.

1
Not surprisingly, the duties of standby counsel “are
considerably more limited than the obligations of retained or
appointed counsel.” See United States v. Morrison, 105 F.3d at 90,
citing Tate v. Wood, 963 F.2d 20, 26 (2d Cir. 1992). Even if this
Court were to determine that it was appropriate to assess the
effectiveness of the assistance of standby counsel, even in the
context of trial counsel, that examination inescapably would lead
to a determination that standby counsel’s assistance throughout the
proceedings was effective. See Strickland v. Washington, 466 U.S.
668, 687 (1984). While the undersigned was not privy to the
confidential discussions between defendant BUCZEK and counsel, the
record reflects that standby counsel conferred with defendant
BUCZEK throughout the proceedings, including during examination of
the witnesses, argument of motions, and during argument of numerous
objections. Simply because the defense strategy adopted by
defendant BUCZEK was unsuccessful, as were his attempts to
introduce evidence that properly was limited in the motion in
limine, that does not constitute ineffective assistance of counsel.
Id. This particularly so when the advocacy is reviewed in a

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 Defendant BUCZEK also contends that a conflict of interest

existed concerning his standby counsel, because his standby counsel

previously was employed as a law clerk by this Court. The position

of the Government remains the same, that the fact that appointed

standby counsel previously was employed as a law clerk does not

create a conflict of interest. Further, this Court examined that

issue and reexamined that issue with defendant BUCZEK, and

thereafter properly concluded that no conflict of that issue

exists. See, e.g., Docket No. 158, pp. 7-9 (Transcript from July

19, 2010 status conference).

Further, while the undersigned was not present during the

proceedings before the Honorable H. Kenneth Schroeder, Jr., United

States Magistrate Judge, it is my understanding that the issue

concerning the prior employment of standby counsel was explored

fully with defendant BUCZEK when standby counsel accepted the

assignment as standby counsel on August 20, 2009. See Docket No.

34. The record belies any claim of defendant BUCZEK that he was

unaware that his appointed standby counsel previously was employed

as a law clerk by this Court. See Docket No. 143, pp 8-11. To

that end, the government refers this Court to the pertinent portion

of the transcript from the August 20, 2009 proceeding before the

deferential light, as opposed to “the 20/20 lens of hindsight.”

See Strickland, 466 U.S. at 689.

5
Honorable H. Kenneth Schroeder, Jr., United States Magistrate

Judge, set forth below:

THE CLERK: United States District Court for the

Western District of New York is now in
session. The Honorable H. Kenneth
Schroeder, Junior presiding.

MJ SCHROEDER: Be seated please.

THE CLERK: This is United States vs. Shane Buczek,

docket number 08-CR-54, docket number
09-CR-121, and docket number 09-CR-141.
Today's proceeding is scheduled for a
bail reviewing hearing. For the
Government, Assistant United States
Attorney George Burgasser on behalf of
Anthony Bruce. Assistant Federal Public
Defender Brian Comerford is present with
the defendant. And Scott Kawski is
present for Probation.

MJ SCHROEDER: Good afternoon.

MR. COMERFORD: Good afternoon.

MR. BURGASSER: Good afternoon, Your Honor.

MJ SCHROEDER: First order of business I want to

address, Mr. Comerford, were you able to
get any guidance on your being able to
represent Mr. Buczek in 08-054?

MR. COMERFORD: I am, Judge. I spoke with Judge Skretny's

chambers and he has no problem with my
representing Mr. Buczek in this case.

MJ SCHROEDER: All right. And you've explained to Mr.

Buczek your history?

MR. COMERFORD: Judge, we haven't discussed that.

MJ SCHROEDER: Let me just tell you, Mr. Buczek, that at

one point in his legal career, his young
legal career, Mr. Comerford was a law
clerk with the Honorable William M.

6
 Skretny, the United States district judge
to whom this case is assigned. He served
in that capacity for a couple of years
before moving over to the Public
Defender's Office. He was in no way
involved with any of your cases, but when
the case in 08-CR-054 was initiated, he
was still employed in Judge Skretny's
chambers, but did not work on that case.
So to be perfectly safe and have full
transparency, we wanted everyone to be
aware that Mr. Comerford was a law clerk
for Judge Skretny when 08-CR-54 began. I
trust that does not cause you any
concern, Mr. Buczek?

THE DEFENDANT: No, Judge. I respect your counsel in

terms of that.

MJ SCHROEDER: I'm not counseling you because I can't

give you advice, but I will merely state
for the record that I know of no legal
impediment that would prevent Mr.
Comerford from representing you based on
the fact that he was not in any way
involved in 08-CR-54 while he was Judge
Skretny's law clerk.

THE DEFENDANT: Okay.

MJ SCHROEDER: All right?

THE DEFENDANT: Judge, I do have a question. I'm just

curious –

MJ SCHROEDER: Maybe you ought to ask that question

through your attorney Mr. Comerford.

THE DEFENDANT: All right, I'll ask later.

MJ SCHROEDER: No, no, put the question to Mr. Comerford

so that --

MR. COMERFORD: We're all set, Judge.

MJ SCHROEDER: All right. Anything you want to ask, Mr.

Comerford, or say? Address?

7
 MR. COMERFORD: No, Your Honor. We have completed the
financial affidavit. We went through it
last time in the lockup following court.
I still need to, I guess, execute the
financial affidavit. I just want to make
sure there's no outstanding issues with
Mr. Buczek before we do that.

MJ SCHROEDER: All right.

MR. COMERFORD: Judge, I have a signed financial

affidavit that I would like to bring up
to the Court.

* * *

See Docket No. 34, pp. 2-4. Thus, in addition to the discussion

this Court has had with defendant BUCZEK concerning the prior

employment of standby counsel, that issue fully was addressed by

Magistrate Judge Schroeder before standby counsel was assigned.

Based upon the thorough discussion of this issue with defendant

BUCZEK, as demonstrated in the record, and in light of the well-

established authority rejecting a challenge to the effectiveness of

standby counsel, such as that mounted by defendant BUCZEK, this

Court should deny the motion seeking relief pursuant to Strickland

v. Washington, 466 U.S. 668 (1984) (Docket No. 143), in its

entirety.

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 CONCLUSION

Based upon the foregoing, the motion of defendant BUCZEK

(Docket No. 143), seeking a new trial and vacatur of the jury

verdict, should be denied in its entirety.

DATED: Buffalo, New York, August 20, 2010.

Respectfully submitted,

WILLIAM J. HOCHUL, JR.

United States Attorney

BY: s/MARY C. BAUMGARTEN

Assistant United States Attorney
United States Attorney’s Office
Western District of New York
138 Delaware Avenue
Buffalo, New York 14202
716-843-5864
Mary.Catherine.Baumgarten@usdoj.gov

9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

v. 09-CR-121-S

SHANE C. BUCZEK,

Defendant.

CERTIFICATE OF SERVICE

I hereby certify that on August 20, 2010, I electronically

filed the foregoing THE GOVERNMENT’S MEMORANDUM OF LAW IN

OPPOSITION TO THE POST-TRIAL MOTION (DOCKET NO. 143) FILED BY

DEFENDANT BUCZEK with the Clerk of the District Court, and I mailed

the foregoing, by the U.S. Postal Service, to the following

participant:

Shane C. Buczek
7335 Derby Road
Derby, New York 14047

s/KEA D. RUSCH