United States v. Shapat Nabaya ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAPAT AHDAWAN NABAYA, a/k/a Norman Abbott,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:17-cr-00003-MHL-1)
Submitted: February 28, 2019 Decided: March 22, 2019
Before GREGORY, Chief Judge, and DUNCAN and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alex F. Kochanowski, Cincinnati, Ohio, for Appellant. G. Zachary Terwilliger, United
States Attorney, Alexandria, Virginia, Gabrielle M. Michalak, Assistant United States
Attorney, Jessica D. Aber, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shapat Ahdawan Nabaya was convicted following a jury trial of retaliating against
a federal officer by false claim, 18 U.S.C. § 1521 (2012), and false statement in
bankruptcy, 18 U.S.C. § 152(3) (2012). The district court imposed an upward variance
sentence of 71 months’ imprisonment on the § 1521 offense and 60 months on the § 152
offense, to run concurrently. We affirm.
The Government presented evidence that Nabaya had failed to pay income taxes
as early as 2007. In 2012, in order to collect on the overdue tax liability, the Internal
Revenue Service notified Nabaya of its intent to levy on his pension. After receiving no
response to this notice, in January 2013, the IRS levied on Nabaya’s pension. Revenue
Officer Wally Stark issued to Nabaya a notice of intent to levy. Nabaya thereafter
contacted Stark, who reduced the amount of the monthly garnishment and attempted to
work with Nabaya to develop a payment schedule.
Nabaya began hand delivering and mailing letters to Stark “at least weekly”
threatening to sue him and other government employees and asserting that the IRS had no
rights against him. In one of these letters, Nabaya threatened to hang Stark and stated
that he “had enough rope to hang every employee at the IRS as well.” These letters
continued from the date of the release of the levy in April 2013 until Stark retired in July
2016. Nabaya filed numerous lawsuits against Stark personally, alleging that Stark
wrongfully levied on his pension. He also challenged the levy in tax court. All these
lawsuits were dismissed as meritless, and the District Court for the Eastern District of
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Virginia enjoined Nabaya from filing future lawsuits in federal court against federal
employees challenging the levy.
In May 2013, Nabaya filed a mechanic’s lien against the real and personal
property of Wally Stark, representing that Stark owed Nabaya $6,564 for having
unlawfully restrained Nabaya’s pension. The filing of this lien and Nabaya’s numerous
lawsuits against Stark form the basis for the charge of retaliation against a federal officer
by filing a false claim. On August 17, 2016, Nabaya filed an involuntary bankruptcy
petition against Stark in the bankruptcy court for the Eastern District of Virginia. He
alleged, under penalty of perjury, that Stark owed him $50,000 for a personal injury
based on Stark having improperly and illegally levied his pension. The bankruptcy court
dismissed the bankruptcy case on September 22, 2016. The filing of this petition is the
basis for the charge that Nabaya filed a false statement in bankruptcy.
Nabaya elected to represent himself and he presented numerous motions to the
court, which the court determined were meritless and often nonsensical. The court
thereafter ordered a psychological evaluation to determine whether Nabaya was
competent to stand trial. See 18 U.S.C. § 4241(a) (2012). The doctor who conducted this
evaluation concluded that Nabaya was capable of forming a rational understanding of the
court proceedings and had the ability to recognize the danger of self-representation.
Based on this report, the district court did not abuse its discretion in finding Nabaya
competent. See United States v. Moussaoui, 591 F.3d 263, 291 (4th Cir. 2010).
Nabaya contends that the district court erred by not ordering additional
competency testing when he persisted in presenting arguments that the court had rejected
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as nonsensical and meritless. However, because Nabaya’s behavior and arguments did
not change from the time of the psychological evaluation through the end of the criminal
proceedings, the district court did not abuse its discretion by failing to require additional
competency evaluations. See id. The district court had the opportunity to observe
Nabaya’s conduct throughout the trial, which remained consistent with the psychologist’s
opinion that Nabaya was “intentionally choosing non-traditional defense strategies.”
Also, Nabaya was intelligent, communicative, read case law, and was able to weigh and
apply abstract ideas. The fact that Nabaya persisted in his erroneous arguments does not
compel the conclusion that he was legally incompetent to stand trial. See United States v.
Jonassen, 759 F.3d 653, 660 (7th Cir. 2014) (“adherence to bizarre legal theories,
whether they are sincerely held or advanced only to annoy the other side, does not imply
mental instability or concrete intellect so deficient that trial is impossible”) (internal
quotations and citation omitted). We conclude that the district court was within its
discretion in declining to order further competency testing of Nabaya. See United States
v. Banks, 482 F.3d 733, 743 (4th Cir. 2007) (holding that district court is in “superior
position to adjudge the presence of indicia of incompetency”); United States v. West, 877
F.2d 281, 285 n.1 (4th Cir. 1989) (finding no abuse of discretion where district court
denied motion for competency determination where the district court had “observed and
talked with [the defendant] at numerous prior hearings, [and] found no reasonable cause
to believe he was unfit to stand trial”).
Counsel also questions whether the district court erred by permitting Nabaya to
represent himself. The right to self-representation “must be preserved even if the court
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believes that the defendant will benefit from the advice of counsel.” United States v.
Singleton, 107 F.3d 1091, 1095-96 (4th Cir. 1997). “An assertion of the right of self-
representation . . . must be (1) clear and unequivocal; (2) knowing, intelligent and
voluntary; and (3) timely.” United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir.
2000). Our review of the record leads us to conclude that Nabaya’s request to represent
himself was clear, unequivocal, and adamant. See Fields v. Murray, 49 F.3d 1024, 1029
(4th Cir. 1995) (recognizing that court evaluating request for self-representation “must
traverse a thin line” between violating defendant’s right to representation and improperly
denying right to self-representation, and therefore requiring waiver of right to counsel to
be clear and unequivocal) (internal quotation marks and alteration omitted). The district
court advised Nabaya numerous times that it was not in his best interest to proceed pro
se. However, Nabaya unequivocally stated, “I’m going to represent myself. I don’t want
counsel.” We find no error by the district court in determining that Nabaya’s decision to
proceed pro se was knowing and voluntary. See Faretta v. California, 422 U.S. 806, 835
(1975) (requiring right to self-representation to be honored if voluntary and “made with
eyes open”) (internal quotation marks omitted). Moreover, the court provided standby
counsel for Nabaya, although this safeguard is not constitutionally required. See United
States v. Beckton, 740 F.3d 303, 307 (4th Cir. 2014). To the extent that Nabaya
challenges the hybrid representation that resulted from the appointment of standby
counsel, the district court acted well within its discretion in providing standby counsel.
See United States v. Lawrence, 161 F.3d 250, 253 (4th Cir. 1998) (holding that district
court has broad discretion as to parameters of standby counsel’s role). Moreover, Nabaya
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made frequent use of standby counsel, seeking advice during his opening statement,
cross-examination of witnesses, closing argument, and at sentencing.
Nabaya challenges the constitutionality of 18 U.S.C. § 1521, which proscribes the
filing of a false lien or encumbrance against the real or personal property of any officer or
employee of the United States as retaliation for their performance of official duties. The
filing of a such a lien subjects the actor to criminal liability if the actor “know[s] or ha[s]
reason to know that such lien . . . is false.” 18 U.S.C. § 1521. The First Amendment
does not preclude liability for false statements that involve “legally cognizable harm
associated with [the] false statement.” United States v. Alvarez, 567 U.S. 709, 719 (2012)
(plurality opinion). “[F]alse statements are not immunized by the First Amendment right
to freedom of speech.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743
(1983). Thus, § 1521 does not amount to an unconstitutional restriction on content.
Nabaya also contends that the statute is overbroad and punishes legal claims made
in error. A statute is overbroad under the First Amendment if it “prohibits a substantial
amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008).
However, false statements are not protected speech. Bill Johnson’s Restaurants, 461
U.S. at 743. We conclude that Nabaya has failed to meet his burden of showing that the
statute is overly broad. See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580
(1998).
Nabaya next argues that the district court erred by admitting evidence of Nabaya’s
prior lawsuits against Stark. He argues that the prior lawsuits were “filed in good-faith
[and] reflected a lack of understanding of the law,” and “[t]he only purpose of
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introducing the prior lawsuits was to taint the jury against the Appellant, ensuring that the
jury would view the Appellant as a ‘bad guy’ and convict based upon said opinions.”
A district court should exclude relevant evidence when “its probative value is
‘substantially outweighed’ by the potential for undue prejudice, confusion, delay or
redundancy.” United States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997) (quoting Fed. R.
Evid. 403). “Prejudice, as used in Rule 403, refers to evidence that has an undue
tendency to suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.” Id. (internal quotation marks omitted). This court applies “a highly
deferential standard of review to such an issue, and a trial court’s decision to admit
evidence over a Rule 403 objection will not be overturned except under the most
extraordinary circumstances, where that discretion has been plainly abused.” United
States v. Hassan, 742 F.3d 104, 132 (4th Cir. 2014) (internal quotation marks omitted).
To convict Nabaya for retaliation against a federal officer by false claim, the
Government had to prove that Nabaya filed a false claim against a federal officer
“knowing or having reason to know, that such lien is false.” 18 U.S.C. § 1521. And, to
prove a violation of 18 U.S.C. § 152(3), the Government had to prove that Nabaya made
a false statement in bankruptcy “knowingly and fraudulently.” Id. The district court
appropriately ruled that evidence of the filing of prior lawsuits and the dismissal of those
lawsuits as meritless and frivolous was relevant to show the Nabaya knew or had reason
to know that the claims were false. The court appropriately limited the evidence to
minimize the danger of prejudice to Nabaya. We conclude that this ruling did not amount
to an abuse of the district court’s broad discretion. See Hassan, 742 F.3d at 132.
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Nabaya also challenges the denial of his motion for judgment of acquittal. We
review the district court’s decision de novo, United States v. White, 810 F.3d 212, 228
(4th Cir. 2016), considering “whether, viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. (emphasis and internal quotation marks omitted).
“A defendant challenging on appeal the sufficiency of the evidence bears a heavy
burden.” United States v. Hamilton, 699 F.3d 356, 361 (4th Cir. 2012) (internal quotation
marks omitted). “A conviction will be reversed for insufficient evidence only in the rare
case when the prosecution’s failure is clear.” Id. at 361-62 (internal quotation marks
omitted).
A conviction may be obtained under § 1521, when the defendant
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.
18 U.S.C. § 1521. Nabaya contends that the evidence was insufficient to show that he
knew or had reasons to know that the lien was false and asserts that he believed that Stark
had committed theft by levying funds from Nabaya’s pension.
Similarly, to obtain a conviction under 18 U.S.C. § 152(3), the Government had to
prove that Nabaya “knowingly and fraudulently ma[de] a false declaration, certificate,
verification, or statement under penalty of perjury . . . in or in relation to any case under
title 11.” 18 U.S.C. § 152(3). Here, the Government produced evidence that Nabaya
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filed an involuntary bankruptcy petition against Stark, claiming a debt of $50,000 for
personal injury and claiming that Stark stole funds from his pension. The Government
also presented evidence that Nabaya had filed lawsuits against Stark challenging the
validity of the levy and these actions were dismissed as meritless, thus presenting an
inference that Nabaya knew that his challenge to the levy was false.
Although Nabaya asserts that he believed his claim against Stark was valid, he
offered no evidence of this fact. In fact, Nabaya expressly declined to offer evidence or
testimony. Thus, the only evidence before the jury was the testimony presented by the
Government. We have reviewed the record and conclude that the evidence was sufficient
for the jury to find that Nabaya knew or had reason to know that the mechanic’s lien he
filed against Stark was false, 18 U.S.C. § 1521, and that he filed a false statement in
bankruptcy “knowingly and fraudulently,” 18 U.S.C. § 152(3). Accordingly, the district
court did not err in denying Nabaya’s motion for judgment of acquittal.
The final issue raised in Nabaya’s appeal brief is a challenge to the district court’s
imposition of an upward variance sentence. Nabaya’s advisory Guidelines range was 33
to 41 months. The district court imposed an upward variance sentence after finding that
Nabaya engaged in a pattern of threatening communication to the same victim and other
threats. Nabaya maintains that he was not victimizing Stark, but rather acting in a good
faith belief that he was pursuing his rights. He also asserts that there was no evidence of
actual threats of physical or financial harm to Stark.
This court “‘review[s] all sentences—whether inside, just outside, or significantly
outside the Guidelines range—under a deferential abuse-of-discretion standard.’” United
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States v. Blue, 877 F.3d 513, 517 (4th Cir. 2017) (quoting Gall v. United States, 552 U.S.
38, 41 (2007)). We “must defer to the district court and affirm a reasonable sentence,
even if we would have imposed something different.” United States v. Bolton, 858 F.3d
905, 915 (4th Cir. 2017) (internal quotation marks omitted). “When reviewing a
departure, [this court] consider[s] whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with respect to the extent of the
divergence from the sentencing range.” United States v. Howard, 773 F.3d 519, 529 (4th
Cir. 2014) (internal quotation marks omitted). We find no abuse of discretion by the
district court in imposing an upward variance sentence. The district court properly
calculated the appropriate advisory Guidelines range and gave the parties an opportunity
to argue for an appropriate sentence. The court then applied the sentencing factors and
thoroughly explained its reasons for departing upward from the Guidelines range. We
find no abuse of discretion in the imposition of a 71-month upward variance sentence in
this case.
Nabaya seeks leave to file a pro se supplemental brief and to exceed the page
lengths for such a brief. We grant his motion for leave to file an oversize brief. Nabaya
includes in his brief copies of his motions filed in the district court asserting that (1) the
criminal case should be dismissed because the prosecutors did not provide copies of their
oaths of office demonstrating that they were authorized to represent the United States; (2)
his prosecution was in violation of the First Amendment, and citing 26 U.S.C.
§§ 6103(g)(4)(A), 7345(c) (2012); (3) his right to a speedy trial was violated; (4) he was
subjected to racial discrimination and fraud, and the misuse of federal funds; (5) his
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rights under Brady v. Maryland, 373 U.S. 83 (1963) were violated because he never
received a copy of the statement of the offense filed by the injured party; and (6) the
district court lacked subject matter jurisdiction over the prosecution and lacked personal
jurisdiction over him. He also sought an injunction, asserting that no complaint,
affidavit, court order, or statement of offense was filed against him and he is not guilty of
any offense. We have reviewed the record and conclude that the district court
appropriately denied Nabaya’s motions in which he raised these arguments in the district
court. We note that Nabaya was charged in a superseding indictment, which he
acknowledged receiving and reviewing, and the district court read the entirety of the
superseding indictment to Nabaya during his arraignment. Additionally, Nabaya’s claims
of discrimination are unfounded and unsupported in the record. Thus, although we grant
Nabaya’s motion for leave to file a pro se brief, we find no merit to the arguments raised
therein.
We deny Nabaya’s pro se motions and we affirm Nabaya’s convictions and
sentence. We deny without prejudice counsel’s motion to withdraw. This court requires
that counsel inform Nabaya, in writing, of the right to petition the Supreme Court of the
United States for further review. If Nabaya requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must state that a copy thereof
was served on Nabaya. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
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AFFIRMED
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