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United States v. Johnson

United States District Court, E.D. North Carolina, Western Division

August 19, 2019



          Robert B. Jones Jr. United States Magistrate Judge.

         This case conies before the court on remand from the district court for conduct of a further hearing pursuant to Faretta v. California, 422 U.S. 806 (1975) regarding Defendant's waiver of his right to counsel [DE-43] and on the Government's motion to terminate Defendant's pro se status [DE-45]. The court held a hearing on August 13, 2019, the date of Defendant's scheduled arraignment. [DE-48], For the reasons that follow, the Government's motion is allowed.

         I. BACKGROUND

         Defendant was indicted by a grand jury for conspiracy to distribute one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 ("Count One") and for possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1) ("Count Two"). [DE-1]. If convicted, Defendant faces a significant term of imprisonment. See Am. Penalty Sheet [DE-38] (indicating the penalty on Count One is not less than ten years' and not more than life imprisonment, and the penalty on Count Two is not less than five years' and not more than 40 years' imprisonment).

         At his initial appearance, Defendant was advised of the charges against him and the maximum penalties, and he indicated he understood them, although he expressed some disagreement regarding the drug quantity alleged in Count One. Defendant was advised of his Constitutional rights, including his right to counsel, and the court appointed counsel to represent him. [DE-15].

         At his detention hearing, Defendant was represented by counsel but expressed a desire to cross-examine the Government's witness. Defendant asked questions, some relevant and some improper, which appeared aimed at disputing the witness's testimony. The court cautioned Defendant that it was advisable for his attorney to question the witness but that he could continue at his own peril, and Defendant's counsel completed the cross-examination. Defendant also spoke in closing, which the court again advised against, and Defendant asserted his membership in the Moorish Science Temple and asked that his First Amendment rights be respected. Defendant's counsel also presented a closing argument. Defendant was detained pending arraignment and trial. [DE-29].

         Defendant's arraignment was set for April 18, 2019, and on March 27, Defendant's counsel filed a motion for Defendant to proceed pro se with standby counsel. [DE-31 ]. On April 8, 2019, the court received a document from Defendant entitled Affidavit of Fact, which discussed his affiliation with the Moorish Science Temple of America and requested that "the Free National Constitution of the United States of America and the Divine Constitution and By-Laws of the Moorish Science Temple of America be upheld and respected." [DE-32]. The court held a hearing on April 18 on Defendant's motion to proceed pro se. [DE-36]. The court found, based on the statements of defense counsel, Defendant's conduct to date in the proceedings, and the court's colloquy with Defendant, that he had waived his right to the assistance of counsel and that his waiver was clear and unequivocal; knowing, intelligent, and voluntary; timely; and not for an improper purpose. [DE-37] at 4-5. The court appointed Defendant's counsel at that time to continue in the role of standby counsel. Id. at 5.

         On June 6, Defendant appeared with standby counsel for his arraignment. [DE-39]. Defendant indicated he filed an Affidavit of Fact, had not received a response from the Government, and wanted the court to order the Government to respond. The court inquired as to the nature of the Affidavit of Fact and what relief, if any, Defendant was seeking from the court. Defendant's response was somewhat unclear; however, the Affidavit of Fact appears to assert that Defendant has been misidentified in this case because he is "Anthony Gabriel Johnson-.E7" and not "Anthony Gabriel Johnson," which he contends is a slave label and deprives him of his Constitutional rights. [DE-32]. The court admonished Defendant that to the extent he was using his pro se status to delay the case or abuse the process his right to self-representation could be revoked. In response to further questioning from the court, Defendant also indicated he wanted an extension of time to file a motion to dismiss. Over the Government's objection, the court allowed an extension to July 11 and continued the arraignment to August 13.

         On June 17, Defendant filed a motion to dismiss, again asserting his identity theory related to his Moorish religion and seeking dismissal due to "fraud and denationalization." [DE-40]. The court denied the motion, finding it to lack a basis in fact or in law. [DE-43] at 2. The court also referenced Defendant's motion to allow him to wear a Moorish fez in court [DE-42] and expressed concern that Defendant was more focused on his courtroom garb than the charges against him at a critical juncture in the case. Id. at 3. The court reminded Defendant of the risks of proceeding without counsel, questioned whether Defendant "knows what he is doing and has eyes wide open in making the choice to represent himself," and remanded the case to the undersigned for a further Faretta hearing at the time of arraignment. Id. at 2-3.

         Defendant filed a second motion to dismiss on June 28 and a motion for miscellaneous relief on August 5, in which he raised the same issues asserted in the prior motion to dismiss. [DE- 44, -46]. The court summarily denied the motions as spurious, incorporated its prior admonishments to defendant regarding his self-representation, and commended the Faretta issue to the undersigned for further consideration. July 2 & Aug. 12, 2019 Text Orders.


         At the August 13 hearing the court heard from Defendant, his standby counsel, and counsel for the Government. The court began the hearing by attempting to ascertain whether Defendant was competent to proceed and understood the purpose of the hearing. When the court addressed Defendant as "Mr. Johnson" and asked him a question, he at first did not answer and then stated that the record should reflect his name is "Johnson-El." The court advised Defendant of his right to appointed counsel and to self-representation and engaged in a Faretta colloquy with Defendant. In response to the court's first question, Defendant again stated that his name was "Johnson-El" and then answered the court's questions. The court advised Defendant of the serious charges and severe penalties he faced if convicted, and Defendant indicated that he understood. The court advised Defendant that he was bound by the Federal Rules of Evidence and Procedure and questioned him as to his familiarity with them. Defendant indicated he had Rules Handbooks and was studying those materials. The court advised Defendant of the risks of self-representation and urged him to avail himself of court-appointed counsel, and Defendant stated that he wanted to continue representing himself. When asked why, Defendant responded that he was not representing himself to argue the charges but rather to argue that he had been improperly identified as "Johnson" rather then "Johnson-El," and the Government was engaged in "fraud and denaturalization." Defendant acknowledged that he had asserted the argument in previous court filings and indicated he would continue to assert it because it was the only argument he had.

         The court next questioned standby counsel regarding his experience with Defendant. Standby counsel stated that he had met with Defendant a few times, discussed the order allowing Defendant to proceed pro se, answered the few questions Defendant had, and advised Defendant as to what he should and should not do to more effectively represent himself. At their most recent meeting on July 23, standby counsel warned Defendant that his spurious filings may interfere with his continued self-representation and tried to focus Defendant on the facts of his case, but Defendant continued to focus on his identity argument. Standby counsel indicated his intent to advise Defendant that his identity-related legal theory would not be relevant at trial, other than for preservation of an appeal, but also stated that he would not be surprised if Defendant persisted with the argument at trial. Standby counsel believed Defendant to be mentally competent and indicated he had reasonable interactions and communications with Defendant.

         The Government argued that Defendant's continued filing of frivolous motions repeating the arguments asserted in the Affidavit of Fact and challenging the court's jurisdiction due to his misidentification forecasted Defendant's intent to continue pressing those arguments. The Government believed Defendant's goal was to obstruct the court proceedings by filing repeated frivolous motions and pointed to Defendant's statement at the hearing that he only intended to address ...

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