MEMORANDUM

MILTON I. SHADUR, Senior District Judge.

It is truly extraordinary in any federal action, civil or criminal, for no fewer than four judges to have had to deal with a case in the course of its existence, in consequence of the case's original random assignment followed by three random reassignments. And "extraordinary" is a gross understatement of the way in which to characterize the unique situation in which the third of those judges (in this instance this Court) has stepped out of the case on the very day that it had been set for trial—indeed, even as the courtroom deputy had gone to the jury room to collect the venire.1 Because of that uniqueness, it seems appropriate to recount the circumstances before memorializing in written form this Court's oral Section 294(b) decision.

This Court first inherited this then two-year-old case when its colleague William Hibbler stepped away from the case only a few days before his untimely death.1 Its first step of course was to review the case's background. In doing so this Court learned that the prelude to the indictment here—an indictment that charges Ahmad Bey's failure to appear to serve a two-year sentence that had been imposed in another criminal case—originally stemmed from her unwise appeal of an overly lenient three-month custodial sentence imposed by another of this Court's colleagues, Honorable Wayne Andersen, after she had been convicted on several counts of bankruptcy fraud in a trial in which she had represented herself. That sentence was reversed and vacated on the government's cross-appeal, and it was then supplanted by a two year sentence that was ultimately upheld after further appellate proceedings. It was Ahmad Bey's failure to comply with the court-ordered reporting date to serve that two-year sentence that triggered the current indictment.

Although it certainly appeared that Ahmad Bey's initial appeal in that other case had represented bad judgment on her part, this Court originally assumed simple bad judgment to be the explanation, rather than perhaps being an example of what has been her persistent and stubborn wrongheadedness that she has since demonstrated throughout this Court's handling of the case. Accordingly, when this Court also saw that after Ahmad Bey was apprehended in the other case (in December 2009, a full year after her designated December 8, 2008 surrender date) she had not only served that two-year sentence but had also been retained in custody in the present case for a meaningful period of time,2 it suggested at an early status hearing that Ahmad Bey might wish to consider the possibility of a guilty plea because the ensuing sentencing decision under 18 U.S.C. §3553(a)(a decision always reached after considering the advisory Sentencing Guidelines) would seem likely to produce a light sentence—perhaps even just "time served."

Ahmad Bey rejected that suggestion out of hand, and her reaction suggested to this Court that her motivation might possibly stem from her desire not to have a second criminal conviction on her record. It therefore suggested to her and to her appointed standby counsel Michael Falconer3 that if such was the case, she might want to consider the possibility of a plea under North Carolina v. Alford, 400 U.S. 25 (1970), which would not entail her pleading guilty to the current offense but would permit a prompt sentencing with the same likely result. Neither Ahmad Bey nor attorney Falconer was familiar with that old (but still viable) precedent, so this Court provided each with the name and citation of the case. Something less than two weeks later Ahmad Bey came back with another flat out (and unexplained) rejection of that obviously constructive suggestion.

Those were the first instances in which this Court demonstrated the approach that it has persistently sought to pursue throughout its tenure in the case—one of honoring and respecting Ahmad Bey's entitlement to represent herself (a constitutional right confirmed by the seminal decision in Farretta v. California, 422 U.S. 806 (1975)), while also providing her with possible input, based in the law applicable to the case, that might be used by her to curb what seems to be a will toward self-destruction. Those efforts, which Ahmad Bey has chosen to rebuff consistently for reasons best known to her, have continued right up to the present.

For example, during the pretrial voir dire conference earlier this month, this Court suggested that Ahmad Bey ought to arrange for wearing street clothes rather than an orange jumpsuit during the trial, to minimize the possibility that any prospective juror or actual juror might prejudge the current case on the premise that her being held in pretrial custody was an indication that she was guilty of the offense charged here. Ahmad Bey flat-out rejected that suggestion as well, asserting that she neither needed nor wanted any assistance from anyone.

One other (and even more poignant) example: When the parties submitted their proposed exhibits shortly before the trial date, this Court sustained Ahmad Bey's objection to the government's Ex. 1, a copy of the indictment in the bankruptcy fraud case before Judge Andersen. It did so on the ground that the nature of that earlier case was really not relevant to the failure-to-surrender charge in the current case and, moreover, because the jury's exposure to the charge there would create the kind of potential for unfair prejudice with which Fed. R. Evid. 403 is concerned.

On the morning of the day set for trial, this Court suggested a closely-related further step in Ahmad Bey's entitlement to a fair trial by stating that it would not honor either side's suggestions for voir dire questions about bankruptcy or bankruptcy fraud, with no mention of the nature of Ahmad Bey's earlier conviction to be made in the course of either side's opening statement. In that respect this Court called attention to the Supreme Court's decision in Old Chief v. United States, 519 U.S. 172 (1997) and proposed that an appropriate stipulation could confirm the fact of Ahmad Bey's earlier conviction (which was not in dispute), not only without specifying the offense involved but also by simply referring to the also-undisputed two year custodial sentence that she ultimately received in that case.4 Although the government agreed to such a measure, even to the extent of redacting the copy of the indictment that would go back to the jury room, together with copies of the Court's jury instructions and the exhibits, for their deliberation. Once again Ahmad Bey swiftly and flatly rejected the suggestion without even considering how it would serve her interests.

Between the time of the original North Carolina v. Alford suggestion recounted earlier and the two very recent examples just described dating back a few days, this Court has consistently essayed the difficult task of monitoring the proceedings in this case in a manner fully protective of—and in repeated instances going an extra step to protect—Ahmad Bey's right to a fair trial.5 It was in that context that on the morning of the scheduled trial, just after Ahmad Bey had spurned the Old-Chief-based suggestion that this Court had made for her benefit, that standby counsel Falconer handed to this Court Ahmad Bey's "Motion to Recusal Trial Judge" that she had filed the preceding evening, a motion asserting that this Court has a "personal bias and prejudice against the defendant, Deborah Ahmad Bey, and therefore, could not preside at the trial with the required degree of detached impartiality."

Not to put too fine a point on it, that motion has again presented Ahmad Bey's warped lack of understanding of the matters that are and are not relevant to the present case. Ironically, what that motion really reflects is Ahmad Bey's self-bias that has fueled her unremitting refusal to accept the rules of law that apply to and govern this case. This latest distorted submission by Ahmad Bey has unwittingly but unquestionably reconfirmed the wisdom embodied in the often-quoted aphorism from Alexander Pope's Essay on Criticism pt. II, line 359:

All looks yellow to the jaundic'd eye.

For example, Ahmad Bey's numerous proposed exhibits focus to a large extent (if not indeed wholly) on aspects of the proceedings that led up to the imposition of the two year sentence that forms the gravamen of the current charge that she failed to appear to serve her court-ordered sentence on the court-ordered date set for that surrender. That being so, the entire prelude to the imposition of the sentence and the setting of its surrender date constitutes a digression that does not pass the relevance test.

Even worse, in substantial part the motion is predicated on outright lies—for example, with its statement that during the June 13 voir dire conference this Court "reiterated his resentment in defendant representing herself and not accepting his Alford Plea and then directed the government to imply the threat of ten years' incarceration." To demonstrate the contrast between Ahmad Bey's skewed version and what really took place during the June 13 voir dire conference, two excerpts from the transcript of that conference are attached.

First, as to the notion of this Court's purported "resentment" at Ahmad Bey's exercise of her constitutional right of self representation, the Ex. 1 excerpt was the product of this Court's having observed from the case docket that Judge Kendall had confirmed that right, as this Court had repeatedly reconfirmed—indeed emphasized—during its own handling of the case. Because this Court had not of course been involved in the case at the time and did not have immediate access to any transcript before Judge Kendall, it wished to reconfirm Ahmad Bey's desire for self-representation in the appropriate way—so it faithfully followed the detailed procedure presented in Section 1.02 of the Federal Judicial Center's Benchbook for U.S. District Court Judges (6th ed. Mar. 2013). And as for any purported "resentment" as to Ahmad Bey's not accepting an Alford plea, attached Ex. 2 puts the lie to that mischaracterization.

There is no need to proceed with further chapter-and-verse examples of the personal abuse contained in the ill-conceived motion, which this Court quickly denied as groundless. It is of course understandable, and certainly permissible, for a pro se litigant unlettered in the law to voice respectful disagreement with a judge's legal rulings, even though such disagreement stems from that litigant's mistaken beliefs as to the operative rules of law. But it is really intolerable when those mistaken beliefs manifest themselves in unwarranted personal abuse, as in Ahmad Bey's ill-considered and ill-conceived motion.

It was at that point that this Court announced its decision that essentially found that enough was enough (or perhaps more accurately that enough was too much), and accordingly announced its exercise of its prerogative under Section 294(b) to withdraw from the case. That determination is confirmed in written form here and has already been implemented by this District Court's Executive Committee.

EXHIBIT-1

THE COURT: My fault. I saw a reference on the record to Ms. Bey having been present and Judge Kendall having made the necessary inquiries that established her entitlement to go forward, as is her constitutional right, to represent herself rather than through counsel.

I don't have a transcript of that, and so at the risk of repetition I just want to go through the questions that are involved in that and just make sure just as a matter of record that it is appropriate. So let me go down the line and to the extent that this is, Ms. Ahmad Bey, deja vu all over again, I hope that you will be patient with that. It is simply that I want to make sure about something that we have always been treating, all of us, as established.

So the first thing that I want to do is to let you know, as I have made plain a number of times, that you have the constitutional right to go in either one of two directions. One, to be represented by a lawyer at every stage of the proceedings and two, alternatively to represent yourself, which the United States Supreme Court has confirmed.

On the question of counsel, the first alternative, if you are not able to afford a lawyer, the Court of course has the right and the obligation to appoint one without cost. You are familiar with the nature of the offense which is being charged with failure to report for service of the sentence that had previously been imposed on you.

So let me just first ask Ms. Bey to reconfirm, think, if you understand your right to have an attorney. So let's start out with that. Do you?

MS. AHMAD BEY: Yes.

THE COURT: And the next question, which I am quite sure I know the answer to but I think it is useful again to repeat, do you wish to obtain counsel?

MS. AHMAD BEY: No.

THE COURT: And that includes not only retaining counsel, but do you wish to have the Court appoint counsel for you?

MS. AHMAD BEY: No,

THE COURT: Now, Miss Ahmad Bey, have you ever studied law?

MS. AHMAD BEY: No.

THE COURT: Have you ever represented yourself in any other criminal case?

MS. AHMAD BEY: In the first proceeding represented myself —

THE COURT: Okay.

MS, AHMAD BEY: — under Judge Andersen.

THE COURT: Yes. So you understand that you are charged with the crime that I have described in summary form. I didn't mean to do it in detail. But it says —

MS. AHMAD BEY: Right, but I don't have a copy of the indictment either. Not that I didn't have one.

THE COURT: Really?

MS. AHMAD BEY: I just couldn't find it when I was going through all of my stuff.

THE COURT: Well, I just had one photocopied, and I will make sure that you get one photocopied.

MS. AHMAD BEY: Thank you.

THE COURT: Now you understand if you are found guilty of the the crime, the Court will have to impose a special assessment of $100.00 and it could sentence you to the period of time that under the law is provided for such failure. And Mr. Podliska, do you want to just inform the defendant as to the consequence, both in terms of the potential maximum sentence, the potential maximum fine and also the potential for supervised release.

MR. PODLISKA: Yes, your Honor, if I may have just one moment.

THE COURT: Sure.

MS. AHMAD BEY: Judge, can we waive that?

THE COURT: What?

MS. AHMAD BEY: Can we waive that?

THE COURT: No, I don't think so.

MS. AHMAD BEY: Okay.

THE COURT: I want to make sure that this —

MS. AHMAD BEY: Okay.

THE COURT: This may be belt and suspenders, but remember I was not there, and the idea of going back to make sure that it is done —

MS. AHMAD BEY: Yes, sir.

THE COURT: — doesn't really substitute for spending a few minutes, and important minutes, on that subject.

MS. AHMAD BEY: All right.

THE COURT: Yes, Mr. Podliska.

MR. PODLISKA: Yes, your Honor The maximum punishment, your Honor, given the underlying conviction here, would be a term of imprisonment of five years and fine of up to a quarter of a million dollars.

THE COURT: And provision for possible supervised release after any sentence of confinement?

MR. PODLISKA: Yes. I don't have that before me, your Honor. I do believe it would be a period of approximately three years of supervised release that would follow any period of imprisonment. There is also a statutory enhancement that may apply to this offense, your Honor, under Section 3147 which makes it a — there is an additional period of imprisonment that can be imposed for a person convicted of an offense while on release. And that sentence could be up to ten years, your Honor, and doesn't provide for a fine. It does provide for a sentence of imprisonment, in addition to any sentence of imprisonment under 3146.

THE COURT: That could be consecutive to the five years?

MR. PODLISKA: Yes. In fact, it requires that that term of imprisonment is imposed under Section 3147, that that term of imprisonment must be consecutive to any term of imprisonment imposed for the violation of 3146.

THE COURT: Okay. Do you understand that that is what Congress has set as the ceiling that could apply if you are convicted of this offense?

MS. AHMAD BEY: Do you understand that that is what I am fighting, the statute?

THE COURT: I know that.

MS. AHMAD BEY: Okay. All right.

THE COURT: But I am talking about the statute that is charged in the indictment.

MS. AHMAD BEY: I believe that is incorrect, but —

THE COURT: Now you also understand that there are advisory Sentencing Guidelines that could have an effect on your sentence if you are found guilty?

MS. AHMAD BEY: Yes.

THE COURT: And further do you understand that if you represent yourself, you are on your own? I have, as you know, put Mr. Falconer in the position in which he is standby counsel to the extent that you wish to make use of his services. But when I say you are on your own, being on your own also includes the extent to which you decide whether you want to make use of his services or not to assist you in connection with, for example, some of the technical aspects or other aspects of a trial.

Do you recognize that?

MR. FALCONER: Judge, can I — I don't see the parameters as me essentially being second chair in the case. It is not like I am a secondary lawyer and she is the primary lawyer. And I am —

MS. AHMAD BEY: He doesn't do anything.

MR. FALCONER: I think the parameters should be I am standby in case she gets in trouble at trial and she needs to ask a question.

THE COURT: That is what I said. I will put it a different way. The choice, to the extent in which she wants to call on you, for any assistance and that you are here. That is what "standby" means. You are not — you have no obligation, for example, to be forthcoming if you think that Ms. Bey is not handling her defense properly. That is not your function.

MR. FALCONER: Right. But I was looking at it from the other end to say that she has the choice of the extent — she can't make that extent as wide as stepping in as counsel, for example.

THE COURT: She cannot make you her lawyer at that point.

MR. FALCONER: Yes.

THE COURT: When I said she is on her own —MR.

FALCONER: Right.

THE COURT: — that is the concept that I had tried to convey.

MR. FALCONER: Okay.

THE COURT: So there is no misunderstanding about that, right?

MS. AHMAD BEY: Right. In the previous trial I did have people who were sitting at the table with me that were assisting me with the technicalities, of like the relevancy of objections and different things like that. So I had people at the table with me. I don't know if I will be able to do that this time, but I am going to be requesting that the same people who were at the trial before be able to assist me.

THE COURT: Who were those?

MR. FALCONER: Judge Andersen let somebody described as her spiritual advisor sit with her at the table.

THE COURT: Well, I don't have spiritual advisors in my court because I think there is a separation between church and state. And that one certainly applies in my courtroom, spiritual or otherwise.

MR. PODLISKA: That was over the Government's objection, your Honor. And we would be objecting to that in this case.

THE COURT: Yes, I am not granting that. You chose to represent yourself, and you represent yourself. To the extent you may need assistance in connection with mechanical things, things that are of a technical nature, Mr. Falconer is available. But you are also not — both you are not obligated to request his assistance, and second, he is not obligated to provide assistance beyond what I have talked about. A decision to represent yourself is a decision to represent yourself. And the Court is not — nor is the Court your lawyer.

Now I recognize that it may pose difficulties, but that is in the nature of the person's constitutional right of self-representation. I can't tell you, for example, or advise you how you ought to try your case, nor is

Mr. Falconer in a position in which he provides that. You are on your own. Do you understand that?

MS. AHMAD BEY: Yes.

THE COURT: Okay.

Are you familiar with the Federal Rules of Evidence?

MS. AHMAD BEY: Familiar with what?

THE COURT: The Federal Rules of Evidence.

MS. AHMAD BEY: Is that that little book you gave me?

MR. FALCONER: Yeah, they are in there.

MS. AHMAD BEY: Yeah.

THE COURT: You are. Okay. You understand that the rules of evidence determine what evidence may or may not be placed before the jury that may be introduced at trial, and that when you represent yourself you, just as is true of every lawyer in a lawyer-representation case, have to abide by these technical rules and that they are not going to be bent or relaxed for your benefit.

Do you under understand that?

MS. AHMAD BEY: If that is your choice, your Honor.

THE COURT: I beg your pardon?

MS. AHMAD BEY: If that is your choice.

THE COURT: If that is my choice?

MS. AHMAD BEY: Yes.

THE COURT: No, it is not my choice. It is your choice.

MS. AHMAD BEY: Whatever the rule entitles, I am —I agree with it.

THE COURT: Again let's not — nobody is inflicting some result on you. If you decide that you are going to represent yourself —

MS. AHMAD BEY: I am going to represent myself.

THE COURT: — it carries with it the obligation to do everything that is involved that a lawyer would be doing if the lawyer were representing you And that includes living by the rules of evidence and living by the other rules that apply to any court proceeding.

Do you understand that?

MS. AHMAD BEY: Yes.

THE COURT: Are you familiar with the Federal Rules of Criminal Procedure?

MS. AHMAD BEY: Yes.

THE COURT: And you understand that those rules also govern the way that a criminal trial is conducted in the Federal Court, and once again you are bound by those rules and they cannot be bent or distorted or relaxed for your own benefit?

MS. AHMAD BEY: Yes.

THE COURT: Now let me repeat something that I had said earlier in — a couple of times in different contexts, and that is in my opinion a trained lawyer would defend you far better than you can defend yourself. I think that it is not wise for any defendant who is not schooled in the law to seek to represent himself or herself. You have said that you are familiar with the law. But, you know, I can't give you the same kind of quiz that is given, for example, to young lawyers when they get out of law school and they have to pass a bar exam. I can't do that. So I cannot verify the extent of your familiarity with court proceedings. You have of course had prior court experience, and that may assist you, but I am not fully convinced at all that you are familiar with the rules of evidence. And so I have urged you in the past, and I would think that I would be remiss if I did not once again urge you not to try to represent yourself.

You understand that?

MS. AHMAD BEY: Yes, sir.

THE COURT: Now in light of the consequences that may apply if you are found guilty and in light of all the difficulties of representing yourself, is it still your desire to represent yourself?

MS. AHMAD BEY: Yes.

THE COURT: And to give up your constitutional right to be represented by a lawyer?

MS. AHMAD BEY: This is still my desire to represent myself.

THE COURT: And is that a totally voluntary decision?

MS. AHMAD BEY: Yes, it is.

THE COURT: Okay. I then find that the defendant has both knowingly and voluntarily waived the right to counsel and I will therefore permit Miss Ahmad Bey to represent herself.

I have, as you know, designated Mr. Falconer to act as the term "standby counsel," which is different from being, as he has put it more eloquently, second chair in a situation in which you are the primary chair. He is there solely for purposes of assisting in the kind of thing that we have talked about. And accordingly I reconfirm his designation for that purpose.

So now with that out of the way, let me come down and we will all sit around the table and talk about the matter, unless there is something else.

MR. PODLISKA: If I could put just a couple of things on the record as well, your Honor.

THE COURT: Yes.

MR. PODLISKA: We did provide —

THE COURT: Oh, I plan, by the way —

MR. PODLISKA: Oh.

THE COURT: I plan to have Rosemary with us during this period.

MR. PODLISKA: Oh, well, that is fine, your Honor.

THE COURT: Very unusual in connection with any voir dire conference, but I think under the circumstances it would be a mistake not to.

MR. PODLISKA: That is fine.

MR. FALCONER: Judge, I thought we would be farther

MR. PODLISKA: Miss Ahmad Bey insists on living in her own world. She is now talking about how she was released after finishing serving the three-month sentence. The only sentence that she will ever talk about is the three-month sense that she received.

THE COURT: Miss Ahmad Bey, you made the bad judgment, frankly, to appeal from a three-month sentence.

MS. AHMAD BEY: Your Honor, that is not relevant.

THE COURT: Just let me finish if I may. Now it is what made me — I will tell you from day one, when I inherited this case because of concern about your misperception, that is the reason that I raised the issue about the potential use of North Carolina against Alford. Because I understood that you did not wish to be tarred with two convictions rather than one, and I tried to explain that there was a procedure that did not require that and that as I thought of it then, although I hadn't made any calculation, it was very likely that if you were to follow that procedure you would be dealing with a sentence of time served on this offense, and it certainly would have been lighter than what has happened since then.

But that doesn't make it — that doesn't make the three-month sentence and the release from that relevant at all. The — because all of that got overtaken again by your own efforts, by the Government's cross-appeal, by Court