United States v. Hakim

• Decision Date: 22 August 2018
• Docket Number: CRIMINAL ACTION FILE NO. 1:18-cr-126-MLB-AJB
• Parties: UNITED STATES OF AMERICA v. SALEEM HAKIM, Defendant.
• Court: U.S. District Court — Northern District of Georgia

UNITED STATES OF AMERICA v. SALEEM HAKIM, Defendant.

CRIMINAL ACTION FILE NO. 1:18-cr-126-MLB-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

August 22, 2018

UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

Defendant Saleem Hakim is charged by way of a criminal information with three counts of wilfully failing to file a tax return, in violation of 26 U.S.C. § 7203. He has chosen to proceed pro se.¹ He has filed several pretrial motions. [Docs. 14, 14-1 though 14-4, 17, and 18]. The Court heard argument on the motions at the pretrial conference. The undersigned RECOMMENDS that the motions be DENIED.

ECF No. Doc. 14

His first motion is styled "Notice of Demand in the Form of a Motion to Dismiss (With Prejudice) for Egregious Prosecutorial Conduct / Counter-claim." [Doc. 14]. It contains a number of nonsensical allegations commonly filed in both criminal and civil cases by so-called "sovereign citizens," allegations that courts repeated have rejected as no more than gibberish. See United States v. Cartman, No. 1:10-CR-512-01-JEC, 2013 WL 2445158, at *2 (N.D. Ga. June 5, 2013), aff'd, 607 Fed. Appx. 888 (11^th Cir. Apr. 8, 2015); see also Hartmann v. Schauer, No. 16-CV-3970 (PJS/BRT), 2017 WL 3575851, at *1 (D. Minn. Aug. 18, 2017) ("Hartmann's complaint is largely incoherent, full of the sort of irrelevant, out-of-context legal gibberish common to tax protesters and adherents of the 'sovereign citizen' movement."); E-Yage Bowens v. Adams, No. 4:16CV495-RH/GRJ, 2016 WL 6133842, at *1 (N.D. Fla. Oct. 18, 2016) ("The objections are rife with gibberish sometimes associated with an alleged 'sovereign citizen.' "); United States v. Perkins, No. 1:10-CR-97-1-JEC-LTW, 2013 WL 3820716, at *2 (N.D. Ga. July 23, 2013) ("In proceedings, the observant sovereign-citizen defendant clings doggedly to the sovereign-citizen script, which the record in this case reveals to be tedious and mind-numbingly repetitious. Any colloquy with the court is usually characterized by frequent interruptions by the defendant, who attempts to talk over the judge. For the most part, the defendant's statements to the Court are gibberish."), aff'd, 787 F.3d 1329 (11^th Cir. 2015); United States ex rel. Goldsmith v. Schreier, No. CIV. 12-4155, 2012 WL 4088858, at *4 (D.S.D. Sept. 17, 2012) (citing cases). In his motion, Defendant also makes broad conclusory allegations unsupported by any facts, for example, see, e.g., section titled "Concealment of Evidence," [Doc. 14 at 6], that are insufficient to warrant discussion, much less dismissal of the charges. See United States v. Brown, No. CR 210-31, 2011 WL 703603, at *1 (S.D. Ga. Feb. 22, 2011) ("Defendant's unsubstantiated and conclusory allegations . . . simply do not justify dismissal of Defendant's indictment."), aff'd, 462 Fed. Appx. 918 (11^th Cir. Mar. 22, 2012); United States v. Rose, No. CRIM. 06-00092-CG, 2006 WL 2575195, at *1 (S.D. Ala. Sept. 6, 2006) (denying motion to dismiss where the motion made only general and conclusory statements about why the indictment was deficient and failed to cite any legal support for those general allegations). Cf. United States v. Rodriguez, 414 F.3d 837, 842 (8^th Cir. 2005) (conclusory allegations of falsehood are insufficient for dismissal of indictment based on false testimony presented to grand jury); United States v. Comosona, 614 F.2d 695, 697 (10^th Cir. 1980) ("Conclusory allegations of prejudice, otherwise unsupported in the record, do not constitute valid grounds for dismissal of the indictment.").

Despite these glaring deficiencies and Defendant's illogical arguments, the Court has considered Defendant's pro se status² and attempted to discern from Defendant's motions his specific complaints that can capable of cogent discussion. First, many of these complaints concern Defendant's claim that he is not the defendant but rather some representative of the defendant, separate and apart from him. [Doc. 14 at 2, 3, 5, 7; see also Doc. 19 ("Notice of the Authorized Representative's Special Appearance on the Record for Pretrial Conference")]. Defendant's attempt to construe himself as some other person or a separate corporate or other entity under the Uniform Commercial Code ("U.C.C.") by notations such as "ens legis," has no basis in law. Merely spelling a name in uppercase letters or only lowercase letters, reversing the order of one's name, or spewing irrelevant Latin phrases, do not create a different person or create an "artificial entity" or a corporation under the law. Most importantly, Defendant's writings and statements do not negate the allegations of the Information or that the Information has been validly filed. Further, Defendant's claiming that his name is copyrighted or trademarked and that therefore the Government cannot name him in the Information charging that he committed various crimes, or that he is entitled to relief because his name with a trademark symbol refers to a corporation while his name with a copyright symbol refers to him as an individual, is simply ridiculous verging on the irrational. Praileau v. Fischer, 930 F. Supp. 2d 383, 393 (N.D.N.Y. 2013); see also Ausler v. United States, 545 F.3d 1101, 1104 (8^th Cir. 2008) (holding that criminal defendant's claim that his name was copyrighted and that the Magistrate Judge was not authorized to use the name in court proceedings was "frivolous on its face" and the copyright claim was "purely imaginary"); Jordan v. United States, No. 1:07-CV-45 (WLS), 2007 WL 3005326, at *4 (M.D. Ga. Oct. 12, 2007) ("[The defendant's] assertions of the applicability of the Uniform Commercial Code, his personal sovereignty, and his copyright to his name are incorrect, irrelevant, and immaterial to his criminal prosecution, conviction and sentence."); Gibson v. Crist, No. 307CV274/MCR/EMT, 2007 WL 2257522, at *1 (N.D. Fla. Aug. 6, 2007) (holding that plaintiff's allegation of copyright or trademark infringement against Defendants for their use of his name is clearly frivolous); Peters v. Beard, No. 4:06-0935, 2006 WL 2174707, at *3 (M.D. Pa. June 13, 2006) (dismissing plaintiff's complaint as frivolous where, as here, plaintiff claimed that department of corrections personnel used his copyrighted name without permission). Cf. 17 U.S.C. § 102; 37 C.F.R. § 202.1 (names are not proper subject matter for copyright protection). Also, Defendant may not use commercial law theories based on the U.C.C., such as the "lack of a signed contract[]," [Doc. 14 at 7], to attack this prosecution. See Harris v. Wands, 410 Fed. Appx. 145, 147-48 (10^th Cir. Feb. 1, 2011) (rejecting U.C.C. arguments in challenge to conviction and sentence); Sprueill v. United States, Nos. 1:12CV208, 1:10CR381-1, 2013 WL 1811760, at *2 (M.D.N.C. Mar. 28, 2013) ("Petitioner apparently seeks to discharge his criminal judgment using terms and instruments generally associated with commercial law involving creditors and debtors. However, this is not a valid means of collaterally attacking his criminal judgment or sentence.") (citing Harris, 410 Fed. Appx. at 147) (R&R), adopted, 2013 WL 1800057 (M.D.N.C. Apr. 29, 2013); United States v. Mitchell, 405 F. Supp. 2d 602, 603-05 and n.4 (D. Md. 2005) (holding that "the use of all capital letters in the caption of an indictment is irrelevant to the issue of subject matter jurisdiction," and also discussing the origins of this and similar baseless arguments increasingly asserted in criminal cases).

In any event, as the Court explained at the pretrial conference, in order to convict Defendant of violating 26 U.S.C. § 7203, the Government must prove beyond a reasonable doubt three elements, that: (1) the taxpayer was required to file an income tax return; (2) the taxpayer failed to file such return; and (3) the taxpayer's violation was willful, United States v. Goetz, 746 F.2d 705, 707 (11^th Cir. 1984). Part of the Government's burden in any criminal case is that it must prove the identity of the Defendant as the person who committed the alleged crime. United States v. Ayala, 345 Fed. Appx. 421, 423 (11^th Cir. Sept. 1, 2009) (citing 11th Cir. Pattern Jury Instructions (Criminal), Special Instructions § 3 (2003)). Thus, to the extent that Defendant is claiming that somehow the Information is invalid because it does not establish his identity, that claim is a matter for trial and a pretrial motion to dismiss is not the proper way to assert his contention that the wrong person is charged in this case.

Just as important, the law in this Circuit is clear: in ruling on a motion to dismiss an indictment or information for failure to state an offense, the court is limited to reviewing the face of the indictment or information and, more specifically, the language used to charge the crimes. United States v. Sharpe, 438 F.3d 1257, 1263 (11^th Cir. 2006) (citing United States v. Critzer, 951 F.2d 306, 307 (11^th Cir.1992)). A court may not "dismiss an indictment . . . on a determination of facts that should have been developed at trial." Id. (quoting United States v. Torkington, 812 F.2d 1347, 1354 (11^th Cir. 1987)); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5^th Cir. 1978) (on a motion to dismiss the indictment the district court must not pierce the pleadings or make a premature resolution of the merits of the allegations). This is because "[t]here is no summary judgment procedure in criminal cases."

Nor do the rules provide for a pre-trial determination of sufficiency of the evidence. Moreover, this court is constitutionally barred from ruling on a hypothetical question. The sufficiency of a criminal indictment is determined from its face. The indictment is sufficient if it charges in the language of the statute.

[A]n indictment must be sufficiently specific to inform the defendant of the charge against him and to enable him to plead double jeopardy in any future prosecution for the same offense. An indictment satisfies these

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