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United States v. Nabaya

United States District Court, E.D. Virginia, Richmond Division

April 19, 2017

SHAPAT AHDAWAN NABAYA, also known as Norman Abbott, Defendant.


         This matter comes before the Court on two motions: (1) Defendant Shapat Ahdawan Nabaya's Motion to Dismiss Indictment, (ECF No. 21); and, (2) Nabaya's Motion for Designation of Discovery, Disclosure of Transcripts, and Request for Pretrial Conference[1](the "Motion for Designation of Discovery and Disclosure of Transcripts"), (ECF No. 19).[2] The United States has responded to both motions, (ECF Nos. 25, 26), and Nabaya has replied, (ECF Nos. 27, 28).[3] The Court heard oral argument on April 11, 2017. Accordingly, the matters are ripe for disposition. For the reasons that follow, the Court will: (1) deny the Motion to Dismiss Indictment; and, (2) deny the Motion for Designation of Discovery and Disclosure of Transcripts.

         I. Background[4]

         On April 4, 2017, a Grand Jury sitting in the Eastern District of Virginia returned a two-count indictment (the "Superseding Indictment") against Nabaya.[5] (ECF No. 43.) The Superseding Indictment recounts the history of the various civil lawsuits that serve as the backdrop for the charges now before the Court. (Superseding Indictment ¶¶ 1-20.) Those lawsuits, initiated by Nabaya, followed an Internal Revenue Service ("IRS") levy of Nabaya's retirement pension. (Id.)

         Count One of the Superseding Indictment alleges that Nabaya retaliated against a federal officer by false claim, in violation of 18 U.S.C. § 1521.[6] The United States asserts that Nabaya filed a false and retaliatory mechanic's lien alleging that Wally Stark, an IRS official, unlawfully restrained Nabaya's pension and owed Nabaya $6, 564. Count Two of the Superseding Indictment alleges that Nabaya made a false statement in bankruptcy, in violation of 18 U.S.C. § 152(3).[7] The United States contends that Nabaya falsely stated in a bankruptcy filing that Stark owed him $50, 000 related to a personal injury.

         Nabaya was arrested on February 2, 2017. On February 6, 2017, the parties appeared before the Honorable David J. Novak, United States Magistrate Judge, for Nabaya's detention hearing.[8]

         II. Hearing on the Pretrial Motions

         On April 11, 2017, Nabaya, his then-counsel, and the attorneys for the United States appeared in open court for arraignment on the Superseding Indictment and a hearing on the Pretrial Motions.[9] Before argument commenced, the Court addressed various administrative and procedural matters.

         First, the Court permitted Nabaya's court reporter, Juan Ortega, to sit in on and transcribe the hearing.[10] Nabaya brought the court reporter without notice, even to his own attorneys. The Court admonished Ortega that he could not record the hearing because the Local Criminal Rules of the United States District Court for the Eastern District of Virginia prohibit the recording of judicial proceedings. See Local Crim. R. 53(A) ("The ... operation of tape recorders in the courtroom or its environs, ... during the progress of or in connection with judicial proceedings ... is prohibited."). Nabaya objected to the Court's prohibition on the use of an electronic recording device in the courtroom on First Amendment grounds. Relying on a federal decision that rejected a similar challenge to a court's "Electronics Ban Order, " the Court overruled that general objection. See McKay v. Federspiel, No. 14cvl0252, 2014 WL 1400091, at *5 (E.D. Mich. Apr. 10, 2014) ("[A]lthough the public has a First Amendment right to attend and observe courtrooms, the Supreme Court has explicitly disavowed that the media-and by extension, the public-has a First Amendment right to use electronic equipment in the courtroom.").

         The Court also informed Nabaya and Ortega that any transcript that Ortega produced would not constitute an official transcript of the proceeding. See 28 U.S.C. § 753 ("The transcript in any case certified by the reporter or other individual designated to produce the record shall be deemed prima facie a correct statement of the testimony taken and proceedings had. No transcripts of the proceedings of the court shall be considered as official except those made from the records certified by the reporter or other individual designated to produce the record."). The Court warned Nabaya that, should he represent to any court or court official that his personal transcript was "official, " he would be subject to a contempt citation. The Court advised Nabaya and Ortega that if Ortega wished to appear in the capacity of a court reporter again, Nabaya must request permission by filing. The Court also explained that Ortega would need to acquire specific permission from the Court in order to bring any electronic device into any judicial proceedings.

         Second, the Court addressed Nabaya's request to proceed pro se. Nabaya apprised the Court that his attorneys refused to submit, on his behalf, myriad filings to the Court.[11]Nabaya specifically explained that his attorneys would not advance arguments regarding his status as a sovereign citizen, as well as other claims regarding the Court's jurisdiction and constitutional precepts. A breakdown in communication between Nabaya and his counsel, confirmed by counsel, required the Court to find that then-counsel could not provide adequate representation, even in standby status.

         The Court thoroughly explained to Nabaya the risks associated with proceeding pro se. Despite the Court's warnings, Nabaya elected to waive his right to counsel. The Court found that Nabaya understands the charges against him, the penalties he faces, and the perils of proceeding pro se. The Court then informed Nabaya that it would appoint standby counsel at a hearing on Friday, April 14, 2017. The Court rescheduled that hearing for Wednesday, April 19, 2017. (ECF No.53.)

         Third, the Court overruled Nabaya's request that the undersigned recuse herself. As held by Judge Novak in response to a similar request by Nabaya, "[t]he D.C. Lawsuit does not constitute grounds for the undersigned's recusal, as Defendant 'cannot be allowed to create the basis for recusal by [his] own deliberate actions.'" (April 7, 2017 Mem. Order 3 n.1 (quoting United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990).) "Otherwise, defendants could easily engage in inappropriate judge shopping." (Id. (citing Owens, 902 F.2d at 1156; Jones v. Pittsburgh Nat. Corp., 899 F.2d 1350, 1355-56 (3d Cir. 1990) (finding recusal not required after litigant filed a judicial complaint against presiding judge); United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) ("A judge is not disqualified by a litigant's suit or threatened suit against him."); United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977) ("A judge is not disqualified merely because a litigant sues or threatens to sue him.")).)

         Fourth, after oral argument on the Pretrial Motions, the Court articulated to Nabaya numerous instructions and rules governing decorum in the courtroom.[12] The Court warned Nabaya that failure to comply with these instructions and rules could result in waiver of his right to proceed pro se or waiver of his right to remain in the courtroom during his trial.

         Fifth, the Court admonished Nabaya that his frivolous arguments did not constitute an efficient use of his or the Court's resources. Despite this misuse of resources, the Court allowed Nabaya to speak on his own behalf both when he had counsel and after he terminated the attorney-client relationship. To the extent Nabaya's arguments or "motions" were discernible, the Court ruled on each issue Nabaya raised during this lengthy hearing.[13] The Court indicated that it has been patient with Nabaya's imprudent pretrial strategy, but that frivolous motions and arguments would not be tolerated further. Like all other litigants in this Court, Nabaya must submit any motion pursuant to a rule, with a proper caption, and with reference to applicable law. See Local R. Crim. P. 47(F)(1) ("All motions... shall be accompanied by a written brief setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the movant relies.").

         Finally, the Court arraigned Nabaya on the Superseding Indictment. Because Nabaya refused to acknowledge this Court's jurisdiction over him, he did not respond to the Court's inquiry as to his guilt on both Counts One and Two. The Court entered a not guilty plea on his behalf. His objection to the Court doing so was overruled.

         III. Analysis: Motion to Dismiss Indictment[14]

         Nabaya submits various arguments in support of the Motion to Dismiss Indictment. Nabaya argues that the Court must dismiss Count One for any of four reasons: (1) 18 U.S.C. § 1521 violates the First Amendment to the United States Constitution[15] because Section 1521 restricts speech based on content and must be limited to statements made with "actual malice"; (2) Count One violates the Petition Clause of the First Amendment[16] and the Due Process Clause of the Fifth Amendment;[17] (3) Count One fails to state the essential elements of the crime; and, (4) Count One is duplicitous. Regarding Count Two, Nabaya contends that it fails to state the essential elements of the crime. Nabaya's arguments do not persuade. For the reasons articulated below, the Court will deny the Motion to Dismiss Indictment.

         A. Section 1521 Does Not Violate the First Amendment Right to Free Speech

         The Court will deny the Motion to Dismiss Indictment as it pertains to Nabaya's assertion that Count One violates the First Amendment right to free speech. Nabaya's briefing and amici curiae's arguments in open court suggest two theories underlying this position. First, Nabaya contends that 18 U.S.C. § 1521 violates the First Amendment because it restricts speech based on content. Second, Nabaya argues that § 1521 is impermissibly overbroad.[18] Both arguments fail.

         1. Facial Challenge Standard

         The Court construes Nabaya's challenge as a facial one.[19] The Supreme Court of the United States recognizes two types of facial challenges to a law's constitutionality. Ordinarily, a party "can only succeed in a facial challenge by 'establishing] that no set of circumstances exists under which the [law] would be valid, ' i.e., that the law is unconstitutional in all of its applications." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (first alteration in original) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). But the Supreme Court also recognizes a facial challenge "in the First Amendment context under which a law may be overturned as impermissibly overbroad because a 'substantial number' of its applications are unconstitutional, 'judged in relation to the statute's plainly legitimate sweep.'" Id. at 449 n.6 (quoting New York v. Ferber, 458 U.S. 747, 769-71 (1982)). The Court has "provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or 'chill' constitutionally protected speech-especially when the overbroad statute imposes criminal sanctions." Virginia v. Hicks, 539 U.S. 113, 119 (2003) (citation omitted).

         Under either type of challenge, this Court must heed guidance from the Supreme Court, which disfavors facial challenges "for several reasons." Wash. State Grange, 552 U.S. at 450; see also Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (explaining that application of the overbreadth doctrine is done "sparingly and only as a last resort"). Among them, "[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people." Id. at 451 (quoting Ayotte v. Planned Parenthood of K New Eng., 546 U.S. 320, 329 (2006)). "Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither 'anticipate a question of constitutional law in advance of the necessity of deciding it' nor 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."' Id. (citation omitted). Further, facial challenges "raise the risk of premature interpretation of statutes on the basis of factually barebones records.'" Id. at 450 (quoting Sabri v. United States, 541 U.S. 600, 609 (2004)). Bearing these policies in mind, the Court addresses Nabaya's free-speech argument.

         2. Section 1521 Does Not Unconstitutionally Restrict Speech Based on Content

         Nabaya contends that § 1521, as written, impermissibly restricts speech based on content. "'[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" United States v. Alvarez, 132 S.Ct. 2537, 2543 (2012) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (internal quotation marks omitted)). "As a result, the Constitution 'demands that content-based restrictions on speech be presumed invalid... and that the Government bear the burden of showing their constitutionality.'" Id. at 2543-44 (quoting Ashcroft v. ACLU, 542 U.S. 656, 660 (2004)). "[C]ontent-based restrictions on speech have been permitted, " however, "when confined to the few historic and traditional categories [of expression] long familiar to the bar." Id. at 2544 (citation omitted).

         Content-based restrictions have been found permissible in the following categories of speech: "advocacy intended, and likely, to incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; so-called 'fighting words'; child pornography; fraud; true threats; and[, ] speech presenting some grave and imminent threat the government has the power to prevent." Id. (citations omitted). Against this backdrop, the Court finds that the speech purportedly restricted here-Nabaya's false lien (and statements therein) against Stark- could constitute speech integral to criminal conduct. Thus, § 1521 does not unconstitutionally restrict the First Amendment right to free speech based on content.

         The Court begins, as it must, by analyzing the plain language of the statute. Section 1521 provides:

Whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an individual described in section 1114, on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both.

18 U.S.C. § 1521. The plain text of the statute makes clear that it aims to criminalize conduct (the filing of false liens or encumbrances) intended to harm federal employees. The statute does not criminalize all false speech directed at federal employees. The restriction on speech is, at best, incidental. The legislative policy behind the enactment of §1521 confirms this reading:

"Since 2004, there [was] a nationwide increase in the number of filings by prison inmates of unsubstantiated liens and [UCC] financing statements against state or federal officials involved with their incarceration." Jones v. Caruso, 569 F.3d 258, 261 (6th Cir. 2009). Section 1521 was enacted in response to the increasing vulnerability of federal employees as part of the Court Security Improvement Act of 2007. It intends to penalize individuals who seek to intimidate and harass federal employees and officers by filing, attempting to file or conspiring to file false liens or encumbrances. See H.R. Rep. 110-218 (2007), 2007 U.S.C.C.A.N. 827.

United States v. Neal, 776 F.3d 645, 654 (9th Cir. 2015).

         Nabaya, nonetheless, asserts that § 1521 cannot withstand constitutional scrutiny because it punishes the content of those liens: only liens containing false statements are prohibited. While the Court acknowledges that "some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, " Alvarez, 132 S.Ct. at 2544, the First Amendment does not extend so far as to permit conduct intended to harm others just because that conduct includes some element of speech. On that basis, Nabaya's position founders.

         "[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.'" Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 62 (2006) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)). In fact, "words can in some circumstances violate laws directed not against speech but against conduct." R.A. V. v. St. Paul, 505 U.S. 377, 389 (1992) (explaining that a "valid basis for according differential treatment to even a content-defined subclass of prescribable speech is that the subclass happens to be associated with particular * secondary effects' of the speech, so that the regulation is 'justified without reference to the content of the ... speech'" (quoting Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)); see also Smithfield Foods, Inc. v. United Food & Commercial Workers Int7 Union, 585 F.Supp.2d 789, 803 (E.D. Va. 2008) ("[I]t is clear that the 'First Amendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose.'" (quoting United States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982)).

         As explained in Alvarez, courts have found limitations on false speech permissible in at least three contexts in which the regulation implicated fraud or speech integral to criminal conduct: "[F]irst, the criminal prohibition of a false statement made to a Government official, 18 U.S.C. § 1001; second, laws punishing perjury; and third, prohibitions on the false representation that one is speaking as a Government official or on behalf of the Government, see, e.g., § 912; § 709." Alvarez, 132 S.Ct. at 2545-46. These limits on speech share the general purpose of '"maintain[ing] the general good repute and dignity of... government... service itself."' Id. at 2546 (alterations in original) (quoting United States v. Leopwitch, 318 U.S. 702, 704 (1943)).

         Here, § 1521's effect on speech is similarly incidental to its primary purpose: regulating criminal conduct intended to affect government service.[20] Section 1521 does not criminalize the filing of false liens or encumbrances simply because they contain false statements. Instead, the statute regulates conduct (carried out, in part, by written words) intended to harm or intimidate federal employees in the course of their government service. Accordingly, Nabaya does not persuade the Court that § 1521 unconstitutionally restricts speech based on content.

         3. Section 1521 Is Not Impermissibly Overbroad

         Alternatively, Nabaya argues that § 1521 "presents 'a substantial risk that application of the provision will lead to suppression of speech.'" (Reply Mot. Dismiss Indictment 5, ECF No. 27 (citation omitted).) As "[t]he overbreadth claimant, " Nabaya "bears the burden of demonstrating, 'from the text of [the law] and from actual fact, ' that substantial overbreadth exists." Hicks, 539 U.S. at 122 (quoting New York State Club Ass % Inc. v. City of New York, 487 U.S. 1, 14 (1988)). As noted above, § 1521 primarily affects conduct. This distinction is critical because "'overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment.'" United States v. Morison, 844 F.2d 1057, 1075 (4th Cir. 1988) (quoting Broadrick, 413 U.S. at 615). "[I]n such a case 'the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Id. (quoting Broadrick, 413 U.S. at 615).

         The United States Court of Appeals for the Fourth Circuit has articulated three circumstances in which the overbreadth doctrine may apply in this context:

(1) when 'the governmental interest sought to be implemented is too insubstantial, or at least insufficient in relation to the inhibitory effect on [F]irst [A]mendment freedoms';
(2) when the means employed bear little relation to the asserted governmental interest; and[, ]
(3) when the means chosen by the legislature do in fact relate to a substantial governmental interest, but that interest could be achieved by 'a less drastic means'-that is, a method less invasive of free speech interests.

Morison, 844 F.2d at 1075 (quoting Martin H. Redish, The Warren Court, the Burger Court and the First Amendment Overbreadth Doctrine, 78 NW. U. L. Rev. 1031, 1035 (1983)); see also United States v. Kiriakou, No. I:12crl27, 2012 WL 3263854, at *7 (E.D. Va. Aug. 8, 2012) (applying Morison and rejecting overbreadth claims regarding 50 U.S.C. § 421(a) and 18 U.S.C. § 793(d)).

         Nabaya cannot satisfy any of the circumstances set forth in Morison. First, "the governmental interest sought to be implemented" is not "too insubstantial" or "insufficient" in relation to the statute's effect on First Amendment freedoms. Morison, 844 F.2d at 1075. The statute focuses on the substantial interest of preventing a specific type of harm that government employees could suffer as a result of the filing of false liens or encumbrances. See Neal, 116 F.3d at 653. Nabaya suggests that this would produce the chilling effect of punishing erroneous legal claims made in court because claimants would "fear prosecution under § 1521." (Reply Mot. Dismiss Indictment 5.) His argument, however, ignores that the statute requires the defendant to "know[] or ha[ve] reason to know that such lien or encumbrance is false." 15 U.S.C. § 1521. Not all claims made against federal employees would subject claimants to criminal liability; only those claimants who knew or had reason to know that the lien or encumbrance was false would reasonably fear prosecution. Accordingly, the interest of preventing harm to federal employees outweighs the negligible First Amendment restriction imposed by § 1521.

         Second, the statute protects this interest by prohibiting all persons from using false financial filings intended to harm and intimidate federal employees. See Neal, 116 F.3d at 653. Section 1521 does not seek to achieve its aim through arbitrary means; it targets only conduct directly intertwined with the harm the statute seeks to prevent. Third, the Court sees no less drastic means of protecting federal employees from the filing of false liens or encumbrances against them. Nabaya suggests that, in lieu of prosecuting an individual who has violated § 1521, the Court could simply prohibit credit reporting agencies from reporting on the case or permit the United States to submit a pre-filing injunction. These alternative means would do little to ensure that the law prevents the specific type of harm that government employees could suffer as a result of false filings of liens or encumbrances against them. The Court rejects Nabaya's argument that § 1521 violates the First Amendment's right to free speech.

         B. Section 1521 Does Not Violate ...

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