M. HANNAH LAUCK, District Judge.
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
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.
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.
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.
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.
First, the Court permitted Nabaya's court reporter, Juan Ortega, to sit in on and transcribe the hearing.
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.
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.
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.
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
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.
Facial Challenge Standard
The Court construes Nabaya's challenge as a facial one.
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 N. 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
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:
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:
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 Int'l 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 "`maintainpng] 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.
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'n, 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:
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. 1:12cr127, 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, 776 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, 776 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 the Petition Clause
The Court will deny the Motion to Dismiss Indictment to the extent it contends that §1521 violates the Petition Clause of the First Amendment, applied to the United States through the Due Process Clause of the Fifth Amendment. Nabaya argues that § 1521 punishes him for filing suits against the government in violation of the Petition Clause. Nabaya overstates the protections afforded him under the Petition Clause.
The Petition Clause of the First Amendment guarantees "the right of the people ... to petition the Government for a redress of grievances." This right, however, "does not provide blanket immunity for unlawful conduct." Thome v. Bailey, 846 F.2d 241, 244 (4th Cir. 1988). Addressing the validity of liens against the United States in a case seeking declaratory and injunctive relief, the United States District Court for the Southern District of Georgia explained:
United States v. Barker, 19 F.Supp.2d 1380, 1384 (S.D. Ga. 1998).
Adopting the reasoning of Barker, the Court cannot find that the Petition Clause gives individuals, such as Nabaya, carte blanche to sue government employees, especially in the manner proscribed by § 1521. Indeed, "there is no First Amendment right to harass, intimidate, and attempt to extort federal officials," and "there is no such right to use `liens' with no basis in fact or law to pursue such improper purposes." Id. Ultimately, "where defendants have exhausted all the remedies that due process allows, they cannot turn to terror tactics in an effort to force public officials to change their minds." Id. at 1384-85. Section 1521 does not violate the First Amendment's Petition Clause.
Counts One and Two Each State an Offense
The Court will deny the Motion to Dismiss Indictment for failure to state an offense. Nabaya submits that both counts fail to state an offense "[b]ecause legal claims cannot qualify as false statements of fact." (Mot. Dismiss Indictment 8, ECF No. 21.) In essence, Nabaya argues that the Superseding Indictment alleges the falsity of a legal claim, which, by its nature, cannot be proven false. Nabaya's hyper-technical argument fails.
Motion to Dismiss Indictment Legal Standard
"A motion to dismiss the indictment tests whether the indictment sufficiently charges the offense set forth against the defendant." United States v. Brandon, 150 F.Supp.2d 883, 884 (E.D. Va. 2001), aff'd, 298 F.3d 307 (4th Cir. 2002). The Federal Rules of Criminal Procedure require that an indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). The United States satisfies this requirement when the indictment alleges each essential element of the offense along with sufficient additional facts to allow the indictment to be used as proof to bar subsequent prosecutions for the same offense. United States v. Duncan, 598 F.2d 839, 848 (4th Cir. 1979). The facts alleged should also be sufficiently detailed to apprise the defendant of the charge against him so that he may prepare his defense. Id. To warrant dismissal of an indictment, the defendant must demonstrate that the allegations in the indictment, even if true, would not state an offense. United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004).
The Superseding Indictment Tracks the Elements Required to Establish Guilt Under Both Statutes
(Superseding Indictment ¶ 22.) Paragraph 22 plainly outlines the essential facts of Count One in a sufficiently detailed manner that apprises Nabaya of the charge against him so that he may prepare his defense.
(Superseding Indictment ¶ 24.) Paragraph 24 also plainly details the facts necessary to apprise Nabaya of the charge against him.
Nabaya, nonetheless, contends that both counts fail to state an offense. First, on Count One, Nabaya argues that, by alleging that he made a "claim that Stark ... unlawfully restrained his pension and owed [him] $6,564.00," the Superseding Indictment omits any allegation of a "false statement of fact," which must be proven to establish guilt under § 1521. Second, on Count Two, Nabaya contends that, by claiming that he "falsely alleg[ed] that Wally Stark owed [him] $50,000 related to personal injury," the Superseding Indictment fails to apprise Nabaya of a "false declaration," which must be proven to establish guilt under 18 U.S.C. § 152(3). On both counts, Nabaya submits that the United States alleges "legal claims" as "facts." Nabaya's argument does not persuade.
Whether Stark restrained Nabaya's pension unlawfully, and whether Stark owed Nabaya $50,000 for personal injury, while mixed questions of law and fact, can still be proven true or false. In fact, a jury would need to make those largely factual determinations at trial in order to convict Nabaya on either or both counts. To hold otherwise would provide criminal defendants, like Nabaya, an opportunity to challenge every crime charged against them on the grounds that a "fact" upon which the United States relies constitutes a "legal claim." For example, a defendant charged with possession of a firearm as an illegal alien, in violation of 18 U.S.C. § 922(g), could seek to dismiss the indictment on the basis that proving the "fact" of his or her legal status required the resolution of a legal question (i.e., whether he or she was an illegal alien).
The United States Does Not Assert "Duplicitous" Crimes in Count One
The Court will deny the Motion to Dismiss Indictment on the grounds that Count One alleges duplicitous crimes. The Fourth Circuit defines duplicity
Id. (citation omitted). A single offense that can be committed by alternative means, however, is not necessarily duplicitous, meaning duplicative. See Fed. R. Crim. P. 7(c). Further, "[a] duplicitous count is not to be dismissed unless it causes prejudice to the defendant." Kamalu, 298 F. App'x at 254 (citing United States v. Sturdivant, 244 F.3d 71, 75 (2d Cir. 2001)). "Where the indictment `fairly interpreted' alleges a `continuing course of conduct, during a discrete period of time,' the indictment is not prejudicially duplicitous." United States v. Davis, 471 F.3d 783, 790 (7th Cir. 2006).
Nabaya argues that Count One alleges alternative elements rather than to alternative means. He rhetorically asks: "Does the lien violate the law because it was itself `false,' or because it contained false statements? Did it contain false or fictitious or fraudulent statements? Was the particular false/fraudulent/fictitious statement that Mr. Stark had restrained the pension unlawfully, or was it that he owed Mr. Nabaya money, or both?" (Mot. Dismiss Indictment 13 (citation omitted).) According to Nabaya, the United States has armed itself with twelve different theories on which to pursue conviction. (Id. at 14.) The Court disagrees.
In spite of Nabya's concentrated parsing of the United States' allegations, a fair reading of the Superseding Indictment plainly alleges a single theory of Nabaya's criminal liability under Count One, of which the Superseding Indictment adequately apprises Nabaya. "Because `[t]he line between multiple offenses and multiple means to the commission of a single continuing offense is often a difficult one to draw,' the `decision is left, at least initially, to the discretion of the prosecution.'" United States v. Moazzeni, 908 F.Supp.2d 748, 751 (E.D. Va. 2012) (quoting Davis, 471 F.3d at 790). Count One does not join prejudicially duplicitous offenses that warrant dismissal. The Court will deny Nabaya's Motion to Dismiss Indictment.
IV. Analysis: Motion for Designation of Discovery and Disclosure of Transcripts
The Court will deny Nabaya's Motion for Designation of Discovery and Disclosure of Transcripts. In the Motion for Designation of Discovery and Disclosure of Transcripts, Nabaya submits two requests: (1) that the Court compel the United States to designate portions of discovery as evidence in accordance with Federal Rule of Criminal Procedure 12(b)(4); and, (2) that the Court authorize disclosure of transcripts of instructions given to the Grand Jury. For the reasons stated below, the Court will deny both requests.
Rule 12(b)(4) Does Not Require the United States to "Preview" its Case-in-Chief
Nabaya's request that the United States "give notice of [its] intent to use (in its evidence-in-chief at trial) any evidence that [he] may be entitled to discover under Rule 16" extends beyond the text of Rule 12(b)(4)(B). That Rule provides:
Fed. R. Crim. P. 12(b)(4). The Advisory Committee's note to Rule 12(b)(4) indicate that the fundamental purpose of the Rule is to ensure that a defendant "can make his motion to suppress prior to trial" by "requesting] the government to give notice of its intention to use specified evidence which the defendant is entitled to discover under [R]ule 16." Fed. R. Crim. P. 12(b)(4) advisory committee's note to 1974 amendment (emphasis added). In view of the Rule's plain language, as well as the purpose as set forth by the Advisory Committee, the Honorable T.S. Ellis III, United States District Judge, has identified two limits that circumscribe the relief available to defendants invoking Rule 12(b)(4):
United States v. Ishak, 277 F.R.D. 156, 160 (E.D. Va. 2011) (citations omitted). The Court finds Judge Ellis's reasoning persuasive.
If Nabaya seeks to obtain notice from the United States of evidence the United States intends to offer in its case-in-chief, Nabaya's request must identify, with specificity, the evidence he may wish to suppress. Id; see Fed. R. Civ. P. 12(b)(4). He cannot make an across-the-board request that the United States disclose all evidence it intends to use at trial. Absent a more tailored request, the Court must deny Nabaya's request under Rule 12(b)(4).
B. Nabaya Has Not Demonstrated a Particularized Need for the Disclosure of Grand Jury Transcripts
Nabaya invokes Federal Rule of Criminal Procedure 6(e)(3)(E)(ii)
A party seeking disclosure of grand jury materials under Rule 6(e) must make a "strong showing of particularized need" for those materials. United States v. Sells Eng'g, Inc., 463 U.S. 418, 443 (1983) ("We have consistently construed [Rule 6(e)] ... to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted."); see also United States v. Nguyen, 314 F.Supp.2d 612, 616 (E.D. Va. 2004) ("Because grand jury proceedings are entitled to a strong presumption of regularity, a defendant seeking disclosure of grand jury information under Rule 6(e)(3)(E)(ii) bears the heavy burden of establishing that `particularized and factually based grounds exist to support the proposition that irregularities in the grand jury proceedings may create a basis for dismissal of the indictment.'" (citation omitted) (emphasis added)).
Recognizing that the presumption of secrecy and regularity given to grand jury proceedings applies to requests similar to Nabaya's, courts have repeatedly rejected requests for the instructions provided to a grand jury. See, e.g., United States v. Morad, No. 13-101, 2014 WL 68704, at *2 (E.D. La. Jan. 8, 2014) ("[The Defendant's] bald assertion that the United States failed to properly instruct the grand jury on this subject is insufficient to overcome the presumption of regularity that attaches to grand jury proceedings."); United States v. Chalker, No. 12-0367, 2013 WL 4547754, at *6 & n.7 (E.D. Pa. Aug. 27, 2013) ("Since the Government's Indictment is not based on an improper theory of wire fraud, and is facially valid, Defendant has failed to demonstrate a particularized need for the requested disclosures."); United States v. Singhal, 876 F.Supp.2d 82, 99 (D.D.C. 2012) ("Where, as here, the Indictment is facially valid and defendants' claims do not justify dismissal of the Indictment, defendants have not established any particularized need for the grand jury instructions to be disclosed.").
Despite this authority, Nabaya cites no law beyond Rule 6 itself in his Motion for Designation of Discovery and Disclosure of Transcripts and otherwise provides no basis for his request. In his Reply, Nabaya contends that he demonstrates a particularized need for the transcripts in view of the Superseding Indictment's "obvious and glaring defects." (Reply Mot. Designation of Disc, and Disclosure of Ts. 4, ECF No. 28.) Of course, the Court has already rejected Nabaya's technical argument regarding the so-called "distinction between legal claims and statements of facts." (Id. at 2.) Accordingly, the Court sees no basis for disclosing grand jury transcripts on an already-resolved facial challenge to the sufficiency of the Superseding Indictment. See United States v. McDonnell, 3:14cr12, ECF No. 175 (E.D. Va. May 20, 2014) ("Review of facially valid indictments either for insufficient evidentiary support or for the sufficiency of the prosecutor's presentation would run counter to the whole history of the grand jury institution." (citations omitted)); see also Chalker, 2013 WL 4547754, at *6; Singhal, 876 F. Supp. 2d at 99. The Court will deny the Motion for Designation of Discovery and Disclosure of Transcripts.
For the foregoing reasons, the Court will deny the Motion to Dismiss Indictment and the Motion for Designation of Discovery and Disclosure of Transcripts.
An appropriate Order shall issue.
RULES GOVERNING DECORUM IN THE COURTROOM
When appearing in the United States District Court for the Eastern District of Virginia, unless excused by the presiding judge, all counsel or any person in the courtroom shall abide by the following:
The standards set forth above are minimal, not all-inclusive, and are intended to supplement, not supplant or limit, the ethical obligations of counsel under the Rules of Professional Conduct, and the obligations of any party seeking to appear pro se. The Court may at any time announce and enforce additional requirements or prohibitions, or may excuse compliance with any one or more of these standards.
18 U.S.C. § 1521.
18 U.S.C. § 152(3).
Thus, Nabaya's endeavor, in the first instance, to dismiss his case pursuant to Article I, § 10 of the United States Constitution, seemingly because that constitutional provision limits the powers of the states through the Contracts Clause, the Import-Export Clause, and the Compact Clause, utterly founders. Any contention by Nabaya that he can cast off this Court's jurisdiction because he has not "contracted" to it misreads the law entirely: that constitutional provision in no way speaks to this Court's jurisdiction to hear the criminal charges brought against Nabaya.
Second, Nabaya's claim that the Court lacks jurisdiction under the Uniform Commercial Code ("UCC") equally fails. The UCC is a uniform set of laws regarding sales and other commercial transactions that harmonizes those laws, through adoption, across state lines. Nothing supports Nabaya's argument that the UCC provides a basis, under contract principles or otherwise, for him to reject this Court's jurisdiction in his criminal case.
Finally, Nabaya's reference to 28 U.S.C. § 3002(15), which, under that statutory scheme, defines the United States, in part, as "a Federal corporation," does not divest this Court of jurisdiction. Section 3001 et seq. governs procedures for federal debt collection, not this criminal case. Nothing in that provision supports any claim, contract-based or otherwise, that Nabaya sits beyond the jurisdiction of this Court.
The Court has repeatedly advised Nabaya that these sovereign citizen arguments have no basis in fact or law. Moreover, the Court has warned—and does so again—that continued pursuit of frivolous or already-denied theories could be so disruptive as to risk a finding of contempt or the loss of his right to proceed pro se. See Indiana v. Edwards, 554 U.S. 164, 171 (2008) (noting that the right of self-representation "is not absolute"); see also Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (concluding that "[t]he right of self-representation is not a license to abuse the dignity of the courtroom" or "a license not to comply with relevant rules of procedural and substantive law" and that "serious and obstructionist conduct" can result in the termination of pro se status); United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir. 2000) (noting that "[t]he right [to self-representation] does not exist ... to be used as a tactic for delay, for disruption, for distortion of the system, or for manipulation of the trial process").
The Supreme Court "reject[s] the `view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea.'" Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993) (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968)). "Thus, a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment." Id. Stated more broadly, "violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection." Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984) (emphasis added).
Congress passed § 1521 in order to protect federal employees from harm that exists entirely separate from any expression that Nabaya or others might claim their filings intend to convey. Tellingly, Nabaya does not identify what he intended to convey through the conduct that gave rise to the Superseding Indictment. Were it articulated, however, the Court has little doubt that such expression could be divorced from the regulated conduct (i.e., the filing of false liens or encumbrances) and communicated through other, legal means.
The Fourth Circuit explained that holding otherwise would "discourage defendants from exercising their rights to testify, without substantially benefiting the administration of justice." Id. at 323. Not only are such policy implications absent here, whether Nabaya "claim[ed] that Stark had unlawfully restrained his pension and owed him $6,564.00" contains factual content susceptible to a determination of its truthfulness.