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United States v. Nabaya

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

September 5, 2017

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


         This matter comes before the Court following an omnibus hearing addressing, among other issues: (1) Shapat Ahdawan Nabaya's competency; and, (2) Nabaya's forty-four filings that purport to seek dismissal of the criminal charges pending against him. For the reasons stated below and on the record at the conclusion of the August 18, 2017 omnibus hearing, the Court will deny Nabaya's forty-four pretrial filings. (ECF Nos. 59, 61, 62, 64, 65, 66, 69, 70, 71, 73, 76, 91, 94, 97, 98, 99, 100, 101, 102, 103, 104, 108, 109, 111, 112, 114, 115, 116, 117, 121, 127, 129, 131, 134, 135, 138, 139, 140, 144, 145, 146, 147, 151, 153.)

         I. Factual Background

         On 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.)[1] 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.[2]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).[3] 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.[4]

         II. The April 11, 2017 Hearing on Nabaya's First Set of Pretrial Motions

         On April 11, 2017, Nabaya, his then-counsel (the Federal Public Defender (the "FPD")), and the attorneys for the United States appeared in open court for Nabaya's arraignment on the Superseding Indictment and a hearing on two motions: Nabaya's Motion to Dismiss Indictment, (ECF No. 21); and, his Motion for Designation of Discovery, Disclosure of Transcripts, and Request for Pretrial Conference, (ECF No. 19).[5] Before argument commenced, the Court addressed various administrative and procedural matters.

         First, with severe restrictions and on a one-time basis, the Court permitted Nabaya's court reporter, Juan Ortega (who appeared without knowledge of Nabaya's violative conduct), to sit in on and transcribe an unofficial version of the hearing.[6] Second, the Court addressed Nabaya's request to proceed pro se. Nabaya cited concerns about his attorneys' refusal to advance arguments regarding his status as a sovereign citizen, as well as other claims regarding the Court's jurisdiction and constitutional precepts. This breakdown in communication between Nabaya and the FPD required the Court to find that the FPD could not provide adequate representation, even in standby status. The Court thoroughly explained to Nabaya the risks associated with proceeding pro se, and Nabaya elected to waive his right to counsel.[7]

         Third, the Court overruled Nabaya's request that the undersigned recuse herself.[8] Fourth, after oral argument on Nabaya's 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. See Indiana v. Edwards, 554 U.S. 164, 171 (2008); see also Faretta v. California, 422 U.S. 806, 834 n.46 (1975); United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir. 2000).

         Fifth, the Court admonished Nabaya that his frivolous arguments did not constitute an efficient use of his or the Court's resources. Nonetheless, the Court permitted 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.[9] The Court highlighted its patience with Nabaya's imprudent pretrial strategy, but admonished him that frivolous motions and arguments would not be tolerated further. The Court informed Nabaya that, like all other litigants in this Court, he must submit any motion pursuant to a rule, with a proper caption, and with reference to applicable law. See Local Crim. R. 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."). Sixth, 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 and overruled his objection to the Court doing so.

         On April 19, 2017, the Court issued a Memorandum Opinion and Order denying Nabaya's Motion to Dismiss Indictment and Nabaya's Motion for Designation of Discovery, Disclosure of Transcripts, and Request for Pretrial Conference. (ECF Nos. 55, 56.) The Court attached to its Memorandum Opinion a list of "Rules Governing Decorum in the Courtroom" so that Nabaya could have a written reference to the parameters of appropriate in-court conduct.[10]

         III. The April 19, 2017 Status Hearing With Newly-Appointed Standby Counsel

         On April 19, 2017, after the Court issued its opinion regarding the April 11 hearing, the Court held a status hearing, during which it informed Nabaya that William Dinkin, Esquire, had been appointed as his standby counsel. Nabaya resisted that appointment and repeated his desire to represent himself without any assistance. In doing so, Nabaya continually interrupted the Court, disruptively speaking over the undersigned judge and doing so away from the lectern.[11]

         During the April 19 status hearing, Nabaya offered countless nonsensical arguments. He did so even though the Court had previously advised him, by written order and orally, to avoid making frivolous legal arguments.[12] The Court reiterated to Nabaya that his right to represent himself was not absolute and that his obstructionist behavior could risk the loss of that right, as well as a finding that he was in contempt of court. Thus, although the Court had arraigned Nabaya on the Superseding Indictment on April 11, the Court conducted a second arraignment on April 19, in the presence of standby counsel. The Court found a second arraignment appropriate given Nabaya's earlier uncooperative conduct and because a trial date needed to be set with the input of Nabaya's standby counsel.

         The Court asked Nabaya whether he understood the charges against him, and Nabaya did not respond. Instead, he proffered various defenses and advanced additional questionable legal arguments. Nabaya claimed he did not understand the question about whether he wanted to waive a formal reading of the indictment. The Court, in turn, read the Superseding Indictment in its entirety for Nabaya. Nabaya declined standby counsel's offer to view the Superseding Indictment as the Court read it. Nabaya then refused to enter a plea of guilty or not guilty, so the Court entered a plea of not guilty on his behalf. Nabaya objected to the Court doing so and again stated various defenses or other rambling, nonsensical legal arguments.[13] The Court informed Nabaya that he could file a second motion to dismiss, [14] "if he wishes to file one" before May 3, 2017. (Apr. 21, 2017 O. 2-3 (emphasis added), ECF No. 58.)[15] The Court scheduled a jury trial for June 7, 2017.

         IV. Motion to Determine Competency and the Finding of Competence

         Nearly a month after the April 19 status hearing, on May 16, 2017, the Court granted the "Motion of the United States for a Determination of Competency and Memorandum in Support." (ECF No. 63.) The Court informed the parties that it would schedule a hearing to determine the competency of Nabaya after Dr. Evan Nelson, Ph.D, completed and filed a psychiatric report. As a result, the Court continued, generally, the jury trial scheduled for June 7, 2017. The Court further stayed the motions hearing scheduled for May 31, 2017, informing the parties that it would reconsider any motions after it determines whether Nabaya is competent to understand the nature and consequences of the proceeding against him. (ECF No. 89.)

         Dr. Nelson filed the psychiatric report and an addendum psychiatric report on June 28, 2017, and July 6, 2017, respectively. (ECF Nos. 126, 128.) With the reports on file, the Court issued a scheduling order on July 19, 2017, (ECF No. 137), setting the oral hearing on the Motion to Determine Competency for August 18, 2017. At the outset of the August 18, 2017 hearing, the parties agreed that Nabaya had competency to stand trial, and the Court ruled the same.[16]

         V.The August 18, 2017 Omnibus Hearing on Nabaya's Forty-Four Motions

         To allow ample time to consider matters while balancing the need for the efficient administration of justice, the Court ordered that the August 18, 2017 hearing become an omnibus hearing addressing all outstanding pretrial motions and filings in addition to the competency issue above. Between the April 19 status hearing and the August 18 omnibus hearing, in spite of this Court's clear instruction to file one motion to dismiss, Nabaya submitted forty-four filings, [17]including thirty-seven "motions" after the May 3 deadline.[18]The competency issue stood apart mfrom these. Even given this prolix record, the United States responded to nineteen of Nabaya's forty-four filings via separate responses, [19] and responded to twenty-four filings via a Court-permitted omnibus filing.[20]

         Nabaya submitted six of those procedurally defective filings in the ten days before the hearing. These "motions" set forth what Nabaya claimed were violations of the United States' obligations under Brady v. Maryland, 373 U.S. 83 (1963), and requested an expedited hearing on the matter.[21] Despite the barrage of scattershot motions, the United States failed to file a written response to just one filing. (ECF No. 153.) Nabaya had filed that motion on the morning of August 18, 2017, about ninety minutes before the hearing began. Nabaya did not file a reply to any of the United States' responses, and the time to do so has expired.

         The Court postponed the start of the August 18 omnibus hearing so that Nabaya could consult his standby counsel beforehand.[22] When the hearing began, Nabaya expressed a willingness "to be brief, " saying that he wanted to address only ECF Nos. 144, 145, 146, 147, 151, and 153-the last-minute Brady Motions. Nabaya stated that he would rely upon the submitted pleadings for the other thirty-eight filings. In argument, Nabaya conveyed a particular desire to address ECF No. 153, filed the day of the hearing-108 days after the Court's May 3 deadline. Nabaya noted he had given "the state" a copy of the motion, and without objection from the government, the Court allowed him to present argument. Thus, the bulk of the four-hour omnibus hearing concerned Nabaya's forty-four motions viewed through the lens he most recently placed over his sovereign citizen arguments: the eleventh-hour Brady Motions.[23]

         A. Nabaya Presented Nothing Suggesting the that United States Failed to Disclose Brady Evidence

         The Court attempts to characterize Nabaya's non-linear presentation generously, culling a fair reading of his claims from the written Brady Motions and oral arguments he presented by bouncing back and forth among seemingly unrelated topics.

         As to Nabaya's erstwhile Brady claims, like the other arguments he has unsuccessfully raised, Nabaya's understanding of the relevant rules or substantive law extended little beyond referencing a rule or case that did or did not pertain (or sometimes did not exist). Nabaya contended that the United States has withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).[24] In effect, Nabaya attempted to convince the Court that the United States violated the Brady rule because it did not provide evidence that comports with his spurious theories of the case-theories that this Court has repeatedly disavowed. Stated differently, Nabaya resorted to levying disparaging accusations against the United States as a means of repeating frivolous, already-rejected arguments. Nabaya's deliberate efforts to ignore this Court's previous rulings did not go unnoticed.

         Nabaya submitted various exhibits in support of his argument, all of which he could not authenticate and which had no relevance to the case at hand. Nabaya attempted to offer the following:

(1) a document entitled "Brady Policy" that omits any reference to the issuing entity or agency, (Ex. A, ECF No. 156);
(2) copies of licensing oath signed by the Assistant United States Attorneys for the Virginia State Bar ("VSB"), (Ex. CI, ECF No. 156-6; Ex. C2, ECF No. 156-7), and copies of oaths of admission for the federal public defenders in the Eastern District of Virginia, (unmarked exhibit, ECF No. 156-8);
(3) copies of VSB "Mandatory Continuing Legal Education" ("MCLE") records of the prosecuting attorneys, including what appear to be descriptions of courses on Brady responsibilities, (Ex. Bl, ECF No. ECF No. 156-1; Ex. B2, ECF No. 156-2);[25]
(4) copies of ready-to-fill, but blank, template forms for an Application and Affidavit for Search Warrant for a "United States District Court, " (Ex. B3, ECF No. 156-3);
(5) a copy of the first page of the opinion in United States v. O 'Dell, 160 F.2d 304 (6th Cir. 1947), (Ex. B4, ECF No. 156-4); and,
(6) a copy of a document from the Virginia State Corporation Commission ("SCC") certifying that "Internal Revenue Service is not the name of any corporation existing under the laws of Virginia or of a corporation holding a certificate of authority to transact business in Virginia, " (Ex. B5, ECF No. 156-5.)

         Based on this "evidence, " Nabaya urged the Court to dismiss the criminal charges against him. Nabaya invoked procedural mechanisms for dismissal that do not exist.[26] Nabaya also essentially argued that the United States violated the Brady rule because it has not conducted his prosecution in a manner consistent with his frivolous theories of the case. For instance, Nabaya apparently contended that, because no "oaths" or "bonds" (such as Exhibits CI and C2) were included in the 2, 872 discovery documents provided to him, he has shown "material evidence" or a "material fact" of a Brady violation.[27] Nabaya offered no legal authority in support of his claim, and the Court sees none. See Mullins v. Wells Fargo Bank, N.A., No. 3:16cv841, 2017 WL 1202656, at *7 (E.D. Va. March 30, 2017) (characterizing documents requesting oaths of office as being "of no legal import" and "simply nonsensical"); see also infra Section VI.D (rejecting stand-alone "oaths" and "bonds" argument).[28] This Court has overruled Nabaya's "oaths" and "bonds" argument numerous times, and Nabaya's "exhibits" did not persuade the Court to modify the legal reasoning behind its previous decisions. Any failure by the United States to disclose "oaths" and "bonds" cannot undergird a valid Brady claim.

         Similarly, Nabaya argued that Exhibit B3, a template for an Affidavit of Search Warrant, demonstrates improper conduct because-in his mind-the only way the United States could legally levy his pension would be via a summons or warrant from a United States District Court. The absence of such a summons or warrant in the United States' discovery, he seems to contend, demonstrates that the United States engaged in conduct implicating Brady: lodging the levy improperly. Nabaya is wrong.[29] The Internal Revenue Service may employ more than one legal method to impose penalties or fines, and the absence of a summons or warrant is not inconsistent with a proper levy. See Celauro v. I.R.S., 411 F.Supp.2d 257, 264 (E.D.N.Y. 2006). The IRS did not need a summons or warrant from a district court to levy Nabaya's pension, and a Brady claim cannot stand on the failure to disclose something that does not exist.

         Nabaya's arguments also veered to the absurd. Nabaya claimed that the IRS did not exist.[30] To do so, he proffered Exhibit B5, a copy of a Virginia SCC document stating that the "Internal Revenue Service is not the name of any corporation existing under the laws of Virginia or of a corporation holding a certificate of authority to transact business in Virginia." Of course, the IRS is not a Virginia corporation: it is a federal agency. This document does not mean that the IRS does not exist at all The IRS exists as an entity fully cognizable in this federal court. Nabaya's proffered Exhibit B5 does nothing to alter that fact. The United States' supposed failure to inform Nabaya of the IRS's lacking corporate status in Virginia cannot support a Brady claim. Indeed, whether the IRS is a Virginia corporation has no relevance to this case, and the United States had no obligation to disclose it.

         Nabaya submitted other meritless arguments in the Brady Motions but neglected to address them in open court. The Court will not address Nabaya's request for "grand jury minutes, " which it previously denied, (see Apr. 19 Mem. Op. 23-25), or the series of questions directed to the prosecutors and Magistrate Judge Novak, which resemble some sort of criminal interrogatories. Nabaya provided the Court with no basis for submitting those accusatory queries, and the Court finds none. Accordingly, for the reasons stated in open court and in this Memorandum Opinion, the Court will deny Nabaya's Brady motions.[31] (ECF Nos. 144, 145, 146, 147, 151, 153.)

         B. After Denying the Brady Motions, the Court Warned Nabaya to Cease Filing Repetitive and Frivolous Motions

         After highlighting the frivolity of Nabaya's recurring sovereign-citizen arguments, as well as the inapplicability of the rules and cases upon which his Brady Motions were based, [32] the Court warned Nabaya to cease his obvious backdoor attempts to raise the same sovereign-citizen arguments in different guises: here, that of a Brady claim. The Court explained that such a reckless abuse of procedure demonstrated that he did not understand the perils of self- representation and risked termination of las pro se status.[33]

         To ensure that Nabaya is fully prepared for trial, the Court then ordered Nabaya's standby counsel to review-with Nabaya-the actual, relevant evidence provided by the United States within seven days of August 18, 2017.[34] The United States confirmed that it provided Nabaya with documents numbered 1 through 2872.

         VI. Analysis: The Remainder of Nabava's Forty-Four Filings

         In the wake of the August 18 omnibus hearing, the Court questions whether Nabaya actually appreciates the hazards of proceeding pro se. On April 11, Nabaya stated in open court that he understood the nature of the charges against him, the penalties he faces, and the danger of proceeding without counsel. The Court specifically informed Nabaya that, if he elected to proceed pro se, he would do so alone in a complex area of the law in which an attorney's experience and professional training would serve him well. See United States v. Parker, 576 F.App'x 157, 162 (4th Cir. 2014). Since then, Nabaya has continuously communicated his desire to represent himself in this matter. At the same time, however, his haphazard legal strategies indicate a reckless disregard for the consequences of his actions.

         The Court reminds Nabaya that it remains in his best interest to proceed with the assistance of counsel. As the events to date-and the delays caused as a result-have undoubtedly demonstrated, pro se defendants encounter much difficulty when navigating the Federal Rules of Criminal Procedure, applicable and relevant case law, and the Local Criminal Rules of this Court. These difficulties can result in a defendant's failure to utilize defenses or strategies that a lawyer would otherwise employ to strengthen that defendant's presentation. For that reason, if Nabaya now wishes to obtain the assistance of counsel, the Court strongly advises that he do so.

         That being said, whether Nabaya obtains counsel, utilizes standby counsel, or does neither, the Court admonishes him that his relentless bombardment of meritless filings will no longer be tolerated. The Court has afforded Nabaya wide berth, with input from two attorneys from the FPD and, later, standby counsel. But Nabaya has largely rejected that assistance. Nabaya is hereby on notice: this is the last time this Court will attempt to substantively address his repetitive and frivolous sovereign-citizen arguments. Going forward, this case proceeds to trial.

         Below, and for the final time, the Court addresses the seven oft-repeated topics that Nabaya raises in his other thirty-eight filings: (1) subject-matter jurisdiction; (2) personal jurisdiction; (3) procedures or rules only permitted in civil suits; (4) sovereign-citizen theories of recovery; (5) writ of quo warranto; (6) violation of the Speedy Trial Act; and, (7) other ancillary requests.

         A. This Court Has Subject-Matter Jurisdiction

         This Court has subject-matter jurisdiction over Nabaya's criminal case. At least twenty-four of Nabaya's filings appear to challenge the Court's subject-matter jurisdiction to hear the criminal charges brought against him. (See, e.g., ECF Nos. 61, 62, 64, 65, 69, 70, 71, 73, 76, 91, 94, 97, 98, 101, 102, 104, 108, 109, 112, 114, 115, 121, 127, 138.) At the root of Nabaya's argument lies the contention that "this court has not verified and certified subject matter jurisdiction on the record." (See, e.g., Writ of Quo Warranto to Challenge Subject Matter Jurisdiction 4, ECF No. 97.) This baseless argument contravenes the record readily established in this case. Indeed, the Court has repeatedly addressed subject-matter jurisdiction in both open court and in writing. (See, e.g., Apr. 19, 2017 Mem. Op. 6 n.13, ECF No. 55; Apr. 21, 2017 0., ECF No. 58.).

         Again, subject-matter jurisdiction exists because 18 U.S.C. § 3231 provides district courts of the United States like this one with "original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." The Superseding Indictment plainly alleges violations of federal law: (1) that Nabaya retaliated against a federal officer by false claim, in violation of 18 U.S.C. § 1521; and, (2) that Nabaya made a false statement in bankruptcy, in violation of 18 U.S.C. § 152(3). Accordingly, the Court has subject-matter jurisdiction over the criminal case against Nabaya.

         B. This Court Has Personal ...

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