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United States v. Qazi

United States District Court, D. Nevada

June 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
OMAR QAZI, Defendant.

          ORDER (MOT RECONSIDER - ECF NO. 289) (RQST FOR EVID HRNG - ECF NO. 290)

          PEGGYA. LEEN UNITED STATES MAGISTRATE JUDGE.

         Before the court is Defendant Omar Qazi's pro se Motion to Reconsider Order (Dkt. #271) (ECF No. 289), and Request for Evidentiary Detention Hearing (ECF No. 290). It was filed as one document, but the clerk's office docketed it as two different motions because it asks for two different forms of relief. The motion was referred to the undersigned by the district judge on March 15, 2017. See Minute Order in Chambers (ECF No. 301). After reviewing the motion, the district judge found that it is really a request to reconsider the undersigned's order detaining Qazi rather than a request to reconsider the district judge's earlier order. The same day the matter was referred, the court set the matter for hearing for March 24, 2017. See Minute Order in Chambers (ECF No. 302).

         BACKGROUND

         Defendant Omar Qazi (“Qazi”) is charged in an Indictment (ECF No. 1) returned January 20, 2015, with felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Qazi was in state custody and a Writ of Habeas Corpus ad Prosequendum (ECF No. 5) was therefore issued February 10, 2015, to bring him to federal court. Qazi appeared for an initial appearance and arraignment and plea on February 24, 2015. See Minutes of Proceedings (ECF No. 13). The Federal Public Defender's Office was appointed as defense counsel, Qazi pled not guilty and the matter was set for trial on April 27, 2015. Id. The government moved for detention and, because Qazi was in state custody, defense counsel submitted the matter without further argument. Qazi declined to interview with Pretrial Services, but a report was prepared outlining the information available through records checks and criminal history records. The court detained Qazi as a risk of non-appearance, and as a danger to the community.

         On July 24, 2015, Qazi filed a motion to proceed pro se and for the court to conduct a Faretta hearing. (ECF Nos. 27, 28). Judge Ferenbach, the magistrate judge assigned to his case, set the matter for hearing on August 5, 2015, the same day as the calendar call conducted by the district judge. At calendar call, the district judge continued the trial date “pending the ruling on the motion for the defendant to represent himself.” See Minutes of Proceedings (ECF No. 33). The district judge found, pursuant to 18 U.S.C. § 3161(h)(7)[1], that the ends of justice served by continuing the trial outweighed the best interests of the public and the defendant in a speedy trial. Id. The matter was continued for a status conference until the following day. Id. Judge Ferenbach conducted a hearing on Qazi's motions, excused government counsel, and conducted a hearing with Qazi and his attorney of record, and denied both motions (ECF Nos. 27, 28). See Minutes of Proceedings (ECF No. 34).

         At the August 6, 2015 status conference before Judge Gordon, the court heard representations regarding the Faretta hearing conducted by Judge Ferenbach. See Minutes of Proceedings (ECF No. 35). Judge Gordon excused government counsel and conducted a second Faretta hearing of Mr. Qazi, after which he granted Qazi the right to represent himself and appointed CJA standby counsel. Id. CJA attorney Jennifer Waldo was appointed as standby counsel for Mr. Qazi in place of the Federal Public Defender for all future proceedings. See Order Appointing Counsel (ECF No. 36).

         After Qazi was granted leave to represent himself, he filed 14 motions, 1 petition for writ of mandamus, and a notice of expert witnesses. See (ECF Nos. 37-52) between August 12, 2015, and August 28, 2015. He also filed an objection/motion to reconsider rulings on a previously filed motion to suppress. See (ECF No. 54).

         On September 17, 2015, Qazi filed another round of Motions (ECF Nos. 68-71), one of which (ECF No. 68) requested reasonable time to prepare a defense, allow adequate legal material, allow religious diet, and adequate medical care. His request for additional law library time was granted. See Order (ECF No. 72).

         On November 5, 2015, Qazi filed an “Objection to Motion to Detain Defendant Pending Trial and to Conduct a Bail and/or Pre-trial Release Hearing” (ECF No. 91) which was referred to the undersigned as the judge who initially ordered him detained. The court reviewed the moving and responsive papers and entered an Order (ECF No. 101) denying his motion to reconsider. The order pointed out that Qazi had a detention hearing at his initial appearance and that Qazi had declined to interview with Pretrial Services. The court also found that Qazi had not met his burden of showing that new information existed that was not known to him at the time of the detention hearing that had a material bearing on the issue of whether there are conditions of release that would reasonably assure his appearance as required, and ensure the safety of any other person and the community. Id.

         Qazi filed an Objection to the court's order (ECF No. 106), and a Motion to Vacate the Order Denying his Motion to Reopen (ECF No. 107). In an order entered February 24, 2016, Judge Gordon granted Qazi's request to interview with Pretrial Services. See Order (ECF No. 150). Qazi was interviewed and a report was prepared dated March 2, 2016.

         On March 15, 2016, standby counsel Jennifer Waldo filed a Motion to Place on Calendar for a Status Hearing to Appoint Legal Counsel (ECF No. 161) which Judge Ferenbach set for hearing. At the hearing on March 23, 2016, Judge Ferenbach addressed Qazi and his standby counsel, and granted the request to appoint Ms. Waldo as CJA counsel. See Minutes of Proceedings (ECF No. 170) and Order (ECF No. 171).

         On May 26, 2016, Judge Gordon set a hearing on Qazi's motion to reconsider the undersigned's order denying Qazi's objection to his detention order and motion to vacate. After hearing arguments of counsel, the motions were denied. See Minutes of Proceedings (ECF No. 182).

         Qazi filed a second motion to proceed pro se and for the court to conduct a Faretta canvas (ECF Nos. 204, 205) on September 20, 2016. Another hearing was held, a Faretta canvas was conducted, his request to represent himself was granted, and substitute standby counsel, Lance Hendron, was appointed. See Minutes of Proceedings (ECF No. 208) and Order Appointing Counsel (ECF No. 209).

         Another Motion to Reopen Detention Hearing with Due Process Concerns was filed on October 21, 2016 (ECF No. 219), which was referred to the undersigned. Qazi's pro se motion argued, among other things, that circumstances had changed since his initial detention because he had been in custody awaiting trial for a prolonged period of time. The court reviewed the moving and responsive papers and denied the motion. The written Order (ECF No. 232) denying the motion to reopen noted that Qazi had been in custody awaiting trial for a prolonged period of time because the parties stipulated to multiple extensions of the motions deadline and trial dates for various reasons, and most recently at a calendar call Judge Gordon conducted October 11, 2016. The court considered the motion and again found that he had not met his burden of showing that new information existed that was not known at the time of his initial detention hearing that had a material bearing on the issue of whether there are conditions of release that would reasonably assure his appearance as required, and the safety of any other person and the community, and therefore denied the motion. See Order (232) entered October 27, 2016.

         Qazi continued to file many pretrial motions after the October 11, 2016 calendar call. Judge Gordon granted Qazi's request for appointment of a paralegal to assist him in trial preparation with his scheduled trial date. See Order (ECF No. 275) entered January 3, 2017. Proposed voir dire, jury instructions, a statement of the case, the witness list, and an exhibit list were filed by Qazi. See (ECF Nos. 276-280). At a calendar call held January 3, 2017, the court ruled on several outstanding motions. Specifically, Judge Gordon granted Qazi's motion in limine to exclude other bad acts evidence under Fed.R.Evid. 404(b), and affirmed Judge Ferenbach's report and recommendation, granting in part Qazi's motion to suppress as it related to his incriminating statements. See Minutes of Proceedings (ECF No. 281). At calendar call standby counsel, Mr. Hendron, and paralegal, Mr. Logia, raised concerns regarding the issuance and service of subpoenas. Id. Mr. Qazi indicated he had filed a notice of expert which the court had not yet received. Id. A copy was provided to the court and government counsel and Judge Gordon directed that it be filed. Id.

         The government objected to the timeliness of the notice of expert, and Judge Gordon continued the trial to allow the government time to review Qazi's notice of expert. Id. The calendar call was continued to the following day, January 4, 2017. The government filed a Notice of Appeal (ECF No. 282) of Judge Gordon's oral order regarding the motion to suppress and motion in limine on January 4, 2017. At the continued calendar call, the government notified the court of its appeal of his decision on the motion to suppress and motion in limine. See Minutes of Proceedings (ECF No. 284). Mr. Qazi made an oral request to reconsider his detention in light of the government's appeal. The court advised Mr. Qazi he could file a new motion to consider pretrial detention. Id. Calendar call was continued until Thursday, January 5, 2017. See Minutes of Proceedings (ECF No. 288). Judge Gordon indicated that a new order regarding trial would be issued when the Ninth Circuit issued its decision of the government's appeal.

         The current motion was filed January 23, 2017, (ECF Nos. 289, 290), and referred to the undersigned on March 15, 2017.

         The court set the motions for hearing on March 24, 2017. Alexandria Michael appeared on behalf of the government, and Qazi appeared in custody representing himself with standby counsel Lance Hendron. Qazi requested that his mother be allowed to testify as she was present in the courtroom. He also indicated that he wanted to call the mother of his child, Leslie Lance, and had expected her to be present, but that she was not. Over the government's objection, the court allowed Qazi to question his mother, Gloria Qazi, on the record. Government counsel was afforded an opportunity to cross-examine. Ms. Michael stated she was not expecting witness testimony and was not fully prepared to cross-examine, but questioned Ms. Qazi. See Minutes of Proceedings (ECF No. 305). The court advised Qazi that it did not have a copy of the Pretrial Services Report Judge Gordon ordered, and would request a copy. The court inquired of counsel for the government what its position was concerning the sentencing guideline range for the offense charged given the amount of time that Qazi had already been in custody. Government counsel stated her position that, if convicted, Qazi was facing substantial additional time in custody. Qazi disputed the government's sentencing guideline calculation, and stated that his own research indicated that if convicted, he would be looking at between 24 and 27 months. At the conclusion of the parties' arguments, the court gave government counsel until March 31, 2017, to file a supplemental brief, and gave Qazi until April 7, 2017, to file a response indicating a written order would be issued. Id. Qazi vehemently objected to allowing further briefing and demanded to be released immediately. His subsequent conduct is described below.

         The court has now reviewed and considered all of the moving and responsive papers, and the arguments of counsel and Mr. Qazi at the hearing, as well as the testimony of Gloria Qazi.

         DISCUSSION

         I. The Parties' Positions

         A. Qazi's Motion

         The motion to reconsider and request for an evidentiary detention hearing stated the requests were “based upon new and substantial changed conditions.” The most significant change relied upon by Qazi was the government's appeal of Judge Gordon's order granting Qazi's motion to suppress statements due to insufficient Miranda warnings. Qazi argues that pursuant to the Fifth, Sixth, and Eighth Amendments to the United States Constitution and the Bail Reform Act, he should be released pending trial on his own recognizance, or bail, and/or any less restrictive conditions established by this Court in accordance with and pursuant to 18 U.S.C.A. § 3142(b)(c) and (h).

         The motion relates the procedural history of his prior efforts to have his detention reconsidered, and points out that in the government's response to one of his motions (ECF No. 178), the government conceded that he was not subject to a rebuttable presumption. Government counsel indicated that she had listened to the audio recording of the February 24, 2015 initial detention hearing, and that neither the government, nor the court, mentioned that Qazi was subject to a rebuttable presumption although the written Order (ECF No. 14) stated he was. The government argued that this appeared to be an unintentional clerical error misinterpreting the court's statement.

         In the current motion, Qazi argues that Judge Gordon's ruling on his motion to suppress statements was based on sound legal authority, and that the government is trying to manipulate the court's rightful ruling by arbitrarily appealing, causing him undue hardship. Qazi contends that the appeal was taken in bad faith, and that the court should “consider the government's weight of evidence against the accused after the Court's proper ruling to suppress evidence.” Qazi points out that he has proclaimed his innocence since the beginning and reiterates that he is innocent. He argues that because he had been in custody for 730 days at the time this motion was filed, continuing his pretrial detention further violates his substantive due process rights. Specifically, he argues that his fundamental right to be free from involuntary confinement without due process of law has been violated and that the court should weigh the opposing government interests against the curtailment of liberty that his confinement entails.

         Qazi cites United States v. Salerno, 41 U.S. 739 (1987) in support of his motion. He acknowledges that in Salerno, the Supreme Court held that the provisions of the Bail Reform Act of 1984 authorizing pretrial detention were constitutionally valid. However, the Supreme Court did not express a view about the point at which detention in a particular case might become excessively prolonged, and therefore punitive. Qazi also relies on Judge Weinstein's decision in United States v. Gallo, 653 F.Supp. 320, 338 (E.D.N.Y. 1986) to support his arguments. There, Judge Weinstein found that an initial denial of bail should not prejudice a defendant petitioning for release on a later date on due process grounds. Judge Weinstein's decision found that the length and burden of detention must be a significant factor in the court's balancing of safety and due process concerns.

         Qazi also argues that the legislative history of the 1984 Bail Reform Act reveals that the legislators had no real basis for concern that some pretrial detainee might languish in pretrial confinement for a prolonged period since the Speedy Trial Act of 1974 provided for commencement of trial within 90 days of arrest. Qazi asserts that the only reason Congress did not include a similar 90-day limitation on detention in the 1984 Bail Reform Act is because the Justice Department convinced the Legislature that it was unnecessary since the Speedy Trial Act was already in place and would ensure the same result. Qazi cites references to the Congressional Record to support his position.

         The motion also argues that an allegation of dangerousness unrelated to the federal charges is not a sufficient basis for detention. Qazi asserts that the Fifth, Sixth and Eighth Amendments to the Constitution prohibit an accused from being punished prior to an adjudication of guilt in a proceeding conducted in accordance with due process of law. He reiterates that he did not waive his speedy trial right and that the ...


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