United States District Court, E.D. Virginia, Richmond Division
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(the "Motion for Designation of
Discovery and Disclosure of Transcripts"), (ECF No.
19). The United States has responded to
both motions, (ECF Nos. 25, 26), and Nabaya has replied, (ECF
Nos. 27, 28). 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.
April 4, 2017, a Grand Jury sitting in the Eastern District
of Virginia returned a two-count indictment (the
"Superseding Indictment") against
Nabaya. (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
One of the Superseding Indictment alleges that Nabaya
retaliated against a federal officer by false claim, in
violation of 18 U.S.C. § 1521. 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). The United States contends that Nabaya
falsely stated in a bankruptcy filing that Stark owed him
$50, 000 related to a personal injury.
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 on the Pretrial Motions
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. Before argument commenced, the Court
addressed various administrative and procedural matters.
the Court permitted Nabaya's court reporter, Juan Ortega,
to sit in on and transcribe the hearing. 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.").
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.
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.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.
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.)
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.")).)
after oral argument on the Pretrial Motions, the Court
articulated to Nabaya numerous instructions and rules
governing decorum in the courtroom. 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.
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. 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.").
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.
Analysis: Motion to Dismiss Indictment
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 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 and the
Due Process Clause of the Fifth Amendment; (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
Section 1521 Does Not Violate the First Amendment Right
to Free Speech
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. Both arguments fail.
Facial Challenge Standard
Court construes Nabaya's challenge as a facial
one. 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).
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.
Section 1521 Does Not Unconstitutionally Restrict Speech
Based on Content
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
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.
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.
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
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)).
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)).
§ 1521's effect on speech is similarly incidental to
its primary purpose: regulating criminal conduct intended to
affect government service. 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.
Section 1521 Is Not Impermissibly Overbroad
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).
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
(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
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. §
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 §
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.
Section 1521 Does Not Violate ...