Wednesday, August 9, 2017
UPDATED: US v. HEATHER ANN TUCCI-JARRAF - IDENTITY HEARING 8-8-17
Note: this is the text of the transcript except in cases where I insert red italic text in [square brackets] and one video that was showing in court in partial form (presented here in full form).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
CR NO. 17-531
HEATHER ANN TUCCI-JARRAF ,
TRANSCRIPT OF REMOVAL HEARING
BEFORE THE HONORABLE DEBORAH A. ROBINSON
UNITED STATES DISTRICT MAGISTRATE JUDGE
Friday , August 4 , 2017
For the Plaintiff : Lisa N. Walters , Esq .
U. S . ATTORNEY' S OFFICE
Violent Crimes Narcotics and
555 Fourth Street , NW
Washington , DC 20530
For the Defendant : David Walker Bos , Esq .
FEDERAL PUBLIC DEFENDER FOR THE
DISTRICT OF COLUMBIA
625 Indiana Avenue , NW
Washington , DC 20004
Proceedings recorded by FTR Gold , transcript produced by computer-aided transcription .
BARBARA DE VICO , FOCR, CRR, RMR
(20 2) 354-3118 Room 6509
P R O C E E D I N G S
DEPUTY CLERK : This is Criminal Case 17-531 ,
United States of America v . Heather Ann Tucci -Jarraf .
Lisa Walters for the government , David Bos for the
.defendant . Pretrial officer is Andre Sidbury .
This is an identity hearing on a removal .
MR. BOS: Good morning , Your Honor .
THE COURT: Good morning . Is everyone ready
MS. WALTERS: Yes , Your Honor .
MR. BOS : Your Honor , I do have some representations to make before we get started ,
Your Honor .
THE COURT: Let me ask you to come to the podium , please . I can hear you , but we have a more
accurate record when counsel speaks from the podium. Thank you .
MR. BOS : Thank you , Your Honor . Your Honor , as the Court may recall , the last time we were here informed the Court that Ms. Tucci would be seeking to represent herself in this matter. Since that time I’ve had a chance to meet with Ms. Tucci. It is my understanding that she does still want to go forward with representing herself in this matter . We had discussed the Faretta case and the inquiry that understand the Court would probably be asking Ms.Tucci, and she’s prepared for that inquiry at this time.
THE COURT: Thank you, Mr. Bos. Mr. Bos, while you ' re at the podium , may I ask you to please articulate your view regarding the nature of the inquiry that the Court must undertake.
MR. BOS: Your Honor, it's my understanding what the Court needs to make is a finding that her waiver of counsel is knowing and voluntary; that she's been advised of the dangers of proceeding prose and that she has, I believe the word in Faretta that's used is that she's literate enough to understand the nature of the proceedings . It's quite clear to me that she’s going to meet all those requirements should the Court inquire about
THE COURT: May I ask you, please, for your proffer with respect to what you advised Ms.Tucci-Jarraf of the dangers or perils of representing herself . You've indicated that you did advise her, but are you able to be more specific, please, without intruding upon privileged matters.
MR. BOS : Yes, Your Honor. I explained to her that obviously any statements that she were to use during the nature of this identity proceeding could, in fact, be used against her in the criminal proceeding that's pending in the state of Tennessee . It also could result in her continued incarceration during the pendency of any continuance of the identification hearing in this case. And that the fact that she is not, although she is a trained attorney, she has not practiced in this courthouse ever before . I think she has a pretty good understanding of the legal system, although she is not obviously a member of the bar of D.C. or in the federal circuit.
THE COURT: What is your proffer with respect to the guidance you provided , the assistance you
provided Ms. Tucci-Jarraf regarding the parameters of today's hearing?
MR. BOS : Your Honor
THE COURT: In other words, that the sole purpose of today's hearing is for the Court to make a determination with regard to whether or not she is the person who is the subject of the arrest warrant and the indictment and perhaps to follow up , that in making such finding the Court cannot entertain any discussion from either the government or of Ms. Tucci-Jarraf regarding the merits? What did you advise Ms. Tucci-Jarraf regarding those matters?
MR. BOS : Your Honor, for the record I explained to Ms. Tucci that we would not be able to discuss the merits of the case about whether or not the strength of the government's case concerning the case in Tennessee, whether or not she has any viable defenses at this point , that the only issue for the Court to decide is whether or not she's the entity or individual that the District of Tennessee is seeking and that we would not be able to introduce evidence on any other issue except for the identification issue.
THE COURT: What is your proffer with respect to whether Ms. Tucci-Jarraf acknowledged your statement regarding the advice?
MR. BOS : She did acknowledge my advice, Your Honor.
THE COURT: --or assistance regarding the purpose of today's hearing?
MR. BOS : Yes, she understands that this is an identity hearing today and that this is not a trial on
the merits or any pretrial motions in connection with the charges that are pending now in the District of Tennessee .
THE COURT: Should the Court grant Ms. Tucci-Jarraf's request or more properly , should the Court accept her waiver of counsel, what will your role be? In other words, will you serve as stand-by counsel, or will it be your request to be permitted to withdraw?
MR. BOS: Your Honor , I think that that's a decision that would be best left for Ms. Tucci to make: I am certainly an officer of the Court , and I've been initially assigned to the case by the Court . I am here today. I can be here for the hearing today. If it turns out that she --well, let me back up.
I've explained to her that she certainly has every right t o represent herself in this case , but the
Court certainly has the right and the authority to appoint stand-by counsel.
Now, whether or not one, she accepts that stand-by counsel and two, whether or not she wants to
have stand-by counsel to be me , I don ' t think given my conversations with her that I can tell you what , what my position is . My position is what my client wants me to do. So if it turns out that the Court wants to appoint stand-by counsel but my client wants someone other than me, then I would ask the Court to appoint new counsel for, or new stand -by counsel for Ms. Tucci.
If it turns out that Ms. Tucci is satisfied with me as stand-by counsel, I'm ready , willing and able
to serve in that capacity.
THE COURT: Very well. That was the Court's next question. Are you prepared to serve as stand-by counsel.
MR. BOS: Yes, if that is my client's wish. THE COURT: With all the qualifications that
you just articulated.
MR. BOS : Yes, Your Honor. THE COURT: Very well. Thank you very much, Mr. Bos.
MS. WALTERS: Good morning , thank you, Your Honor. Your Honor, the government concurs with the defense counsel's request for an inquiry and specifically the specific parameters of what the Court should inquire. And once the Court makes a decision, the government is prepared to turn over Jencks as discussed at the last hearing.
THE COURT: And are you speaking of Jencks with respect to the witness who will be the first
witness you call?
MS. WALTERS: That's correct, Your Honor. And also the government exhibits for the identity hearing today.
THE COURT: Very well. Thank you very much, Ms. Walters. Bear with me, please, while I confer with the deputy clerk . (Discussion held off the record .)
[GREY NOISE FILLS THE COURTROOM WHILE SHE SPEAKS INTO AN INTERCOM]
THE COURT: It appears that there is no form utilized by this Court for the inquiry of the sort that
the parties contemplate . We will take a very brief recess while the Court determines the full extent of
what must be memorialized in order to determine that Ms . Tucci-Jarraf's waiver of her right to counsel is a knowing and voluntary waiver and satisfies the constitutional requirements.
MR. BOS : That's fine, Your Honor. I have just one scheduling issue. Would it be possible, I have a 10:30 status before Judge Moss that should take no more than five minutes just to set a new date. So perhaps if we can reconvene in say half an hour, that would at least allow me to not hold back from Judge Moss on a relatively short matter.
THE COURT: Thank you very much, Mr. Bos.
Ms. Walters, do you have other commitments this morning?
MS. WALTERS: Other than the 11:00 before Your Honor here, no, Your Honor .
THE COURT: Very well . Thank you very much. We will resume no later than 30 minutes from now. Mr. Bos, if you believe your matter will be completed, your matter before Judge Moss will be completed prior to that, please return, please, and reach out to Ms . Walters .
MR. BOS: Your Honor, I'll go up there right now. If we can get called more quickly, I'll get back
THE COURT: Very well. And perhaps the deputy clerk here can assist by making a call to her
MR. BOS: That's fine, Your Honor .
THE COURT: Very well. Thank you. In the meantime, Ms. Tucci -Jarraf, please return with the
DEPUTY CLERK: Okay. Re-calling criminal case year 2017-531-M. United States versus Heather Ann
THE COURT: Thank you. Is there anything further, Mr. Bos, before the Court proceeds?
MR. BOS: No, Your Honor .
THE COURT: Ms. Walters?
MS. WALTERS: No, Your Honor.
THE COURT: Very well. The Court during the recess had an opportunity to review Faretta v. California , 422 United States 806 and Mccaskey v . Wiggins, 465 U. S . 168. Having done so, we will proceed with a determination with respect to the extent to which Ms. Tucci-Jarraf's waiver of counsel as described by you, Mr. Bos , is knowing and voluntary.
As a preliminary matter, I will ask whether you wish to be heard, Mr. Bos, or you, Ms. Walters,
concerning whether you, Ms. Walters, may wish to excuse yourself during any portion of this inquiry if it is the case, Mr. Bos, that you have a concern that privileged information may inadvertently be elicited.
MR. BOS: I do not, Your Honor.
THE COURT: You do not have such request? You do not
MR. BOS: We do not believe that privileged information will be revealed at this point. I don't have a request for the government to step outside.
THE COURT: Can we agree then that if it appears that that is likely to occur, you will somehow
alert us and you , Ms . Walters , will then excuse yourself?
MS. WALTERS: Yes, Your Honor.
THE COURT: Can we agree on that protocol?
MR. BOS: Certainly, Your Honor.
THE COURT: Very well.
Now, Ms. Tucci-Jarraf, I will ask you and Mr. Bos to come to the podium, please.
Now, Ms. Tucci-Jarraf, I will ask you to please face the Deputy Clerk of Court to be sworn , and
then we'll proceed.
THE DEFENDANT: Withstanding identification correction of being the source of all that is, I swear to state the truth .
THE COURT: Thank you. Now, good morning. You have heard Mr. Bos' representations regarding your request. I will hear directly from you at this time.
THE DEFENDANT: Thank you, ma'am.
THE COURT: Of course.
THE DEFENDANT: To be able to answer any questions that you may have, I just wanted to confirm
because I have no ability to confirm whether this, the notice of filing, I just wanted to confirm with
Your Honor that it is on the record, that Mr. Bos has made.
THE COURT: It is.
THE DEFENDANT: Okay. I may proceed, please. Ask your questions.
THE COURT: Very well . Mr . Bos stated in your presence that it is your request that you represent
yourself. I need to hear that from you, however .
THE DEFENDANT: Mr. Bos has gone over explicitly with me regarding being represented by an attorney, being represented on behalf of myself as pro se , and I went over the circum , which was representing
and presenting as self pro per. It is my choice here today to go forward as self pro per.
THE COURT: Do you have an understanding that you have a right to appointed counsel if you are unable to retain counsel?
THE DEFENDANT: I'm aware that based on the notice which was a, it was a complimentary repeat notice from four and-a-half years ago that this entire case, the entire representation in this Court, that there is no authority for this particular action, nor the underlying action from Tennessee.
As far as the identification, I am here to go ahead and move forward with that identification, again,
with the restatement that there is no authority for these proceedings or for the identification hearing.
THE COURT: Did Mr. Bos explain to you that all I can do during the course of this hearing is make a
decision about whether you are the person named in the arrest warrant and the indictment?
THE DEFENDANT: Again, Mr. Bos did explain the process, the limits and parameters that you had
expressed to him as well as into the Court the last time we were on record. Again , I state that based on these perfected filings that have been provided to the Court, there is no authority for this Court or for you, ma'am, to proceed forward with any identification hearing inclusive of the underlying cause of action which resulted in us all being here.
THE COURT: Whose decision is it for you to represent yourself?
THE DEFENDANT: My decision to present and represent self is solely my decision. It is my sole authority and my sole determination.
THE COURT: Has anyone forced you to make such a decision?
THE DEFENDANT: I'm not sure where that question is corning from. There's no facts or data entered into any record that I would be forced to move forward as myself. As I stated, these filings here, if you had read them you would see clearly that I am competent and conscious to make these decisions, these determinations and that there is a solid proof of record of my competency to move forward and represent and present solely as self pro per.
THE COURT: Did Mr. Bos speak with you concerning the perils that an individual faces by electing to represent herself or himself?
THE DEFENDANT: Ma'am, my full responsibility, accountability and liability, I am completely aware of the perils of moving forward with a licensed attorney in such a matter. I'm also aware of the ramifications and the consequences of all involved in this process when there is no authority to actually hold these hearings. I'm very conscious and aware of my own responsibility and accountability and liability for every word, thought and action that I take.
THE COURT: Do you need more time to talk to Mr. Bos about your decision to represent yourself?
THE DEFENDANT: I believe that Mr. Bos and I have thoroughly exhausted all conversation as to our ideologies, where they do not match and where we different that different applications of law are
applicable in this matter. And again, again, the fact that there is documentation that' s applied to the Court that there is no authority for them to even hold this hearing, let alone hold me in custody and detention without bail and bond or appearing to hold me at all or to have this matter before the Court, as is the Tennessee matter, the underlying one that Mr. Parker Still has instigated and brought before this D.C. Court.
So I'm very aware of this. I do not need any more time to be able to speak through the things, we're
just repeating ourselves at this point. So I am very aware, I ' m conscious and competent to make any
declaration and every decision that I am presenting and representing to you as myself.
THE COURT: Mr. Bos referred in passing during his comments to issues having to do with literacy. May I ask you to please state for the record your educational level.
THE DEFENDANT: I have a JD from Gonzaga School of Law. That is the highest level of degree. I also have a BA in accounting and finance , and my JD emphasis was in litigation, real estate --excuse me, estate planning and trials.
THE COURT: Very well. Thank you. Are there other inquiries that either of you propose in order for
the Court to make a determination consistent with Faretta? Mr. Bos?
MR. BOS : No, Your Honor.
THE COURT: Ms. Walters?
MS. WALTERS: No, Your Honor.
THE COURT: Very well. Thank you very much.
Ms. Tucci-Jarraf, thank you, you may be seated.
The Court finds based upon Ms. Tucci-Jarraf's responses to the Court's questions and her narrative statements that her waiver of counsel is knowing and voluntary and otherwise conforms to the requirements of Faretta, and accordingly the Court will note in the record or will include a finding in the record to that effect. The Court will appoint you, Mr. Bos, to serve as stand-by counsel. Do you wish to be heard, Mr. Bos?
MR. BOS : May we approach the podium, Your Honor? I believe that now that Court has found that Ms. Tucci is competent to represent herself. She would like to lodge an objection.
THE COURT: Very well . I will hear your objection.
THE DEFENDANT: Thank you, Your Honor. Again as I restate , this Court does not have the authority to even hold this identification hearing, let alone I'd like to clarify and correct the record that I'm not waiving any rights, that I'm stating that there's no authority to even ask me to waive any rights.
As far as Mr. Bos being stand-in, I need no other assistance in presenting or representing as
THE COURT: Very well. Thank you, you may have a seat.
THE DEFENDANT: Thank you.
THE COURT: Perhaps our record has changed. The finding that the Court just articulated was that
Ms. Tucci-Jarraf waives counsel. Ms. Tucci-Jarraf has now indicated that she does not waive any right and that being the case, I believe we must proceed with you, Mr. Bos, as counsel and not stand -by counsel.
Had there been an objection to your role, Mr. Bos, as stand-by counsel, the Court, as I indicated
at the outset reviewed during our recess Mccaskey v. Wiggins , 465 U. S . 168 , and notes that at page 184 the Supreme Court held that "A defendant's Sixth Amendment rights are not violated when a trial judge appoints stand-by counsel, even over the defendant's objection to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of her own clearly indicated goals."
So had there been an objection to your role as stand-by counsel , Mr . Bos , the Court would have appointed you to serve in that capacity over objection based upon the authority set forth by the Supreme Court in the McCaskey opinion.
However, having now heard that Ms. Tucci-Jarraf does not waive any rights, we must proceed. Ms. Walters, you have just one witness? Is that correct?
MS. WALTERS: That's correct, Your Honor. And just to clarify , the government will produce Jencks and exhibits for the identity hearing.
THE COURT: Can you do that now, please.
MS. WALTERS: Just to be clear, I'm providing them to Mr. Bos.
THE COURT: Thank you. And you may call your --Mr. Bos -
MR. BOS : Your Honor , Ms . Tucci-Jarraf tells me that she ' s not objecting to the appointment of
stand-by counsel. She's objecting to me as stand-by counsel.
THE COURT: Well, the Court knows of nothing we can do at this point other than to proceed. That is
an imprecise way perhaps , and I will endeavor to be more precise, of stating our status. The Court understood the request made by Ms . Tucci-Jarraf to be one to waive her right to counsel, and it was for that reason that during the recess the Court reviewed Faretta and Mccaskey and heard from Ms. Tucci -Jarraf on the record concerning the waiver.
Ms. Tucci-Jarraf has now stated that she does not waive any right. That being the case, I have no
basis to relieve you of your appointment or to appoint you to serve as stand-by counsel, since an appointment as stand-by counsel would be operative only if an individual were representing herself.
Because the broader objection appears to be one to this Court's determination to proceed with an identity hearing , I believe the record is clear with respect to why we are proceeding with the identity hearing. That is what the Federal Rules of Criminal Procedure provide in a circumstance in which an individual is arrested in this district based upon a charge pending in another district. So the Court has no alternative.
To the extent that Ms. Gucci-Jarraf’s objection is also to her continued detention, I have no means to address that either other than by continuing with the identity hearing. Indeed, it may be the case
that the government is unable to carry its burden to prove that Ms. Tucci-Jarraf is the individual named, in which case the Court would have no alternative other than to release Ms. Tucci-Jarraf. But I cannot get to that point if we do not have the hearing. So we must proceed.
MR. BOS : Your Honor -
THE COURT: The Court also noted that at the time the request was made to continue the hearing from Monday until today, the Court expressed a concern regarding Ms. Tucci-Jarraf's continued detention and pointed out that Monday was the third day. We are now four days removed from that, and I know of no way to ensure that Ms. Tucci-Jarraf's rights are protected, that the Court proceeds with the identity hearing in an orderly process, and that we comply with the applicable rules other than to begin.
MR. BOS : Your Honor, I understand that.
THE COURT: The record will reflect that we are proceeding over Ms. Tucci-Jarraf's objection.
MR. BOS : Your Honor, I'd just like to have just 30 seconds so I can see whether or not she might
want to withdraw that objection. It's my understanding that Ms. Tucci would like to represent herself in this matter.
THE COURT: That is not what Ms. Tucci-Jarraf said. I do not question at all your proffer with regard
to the discussion that you had, but Ms. Tucci-Jarraf had said that she didn't waive any rights at all. So we must proceed.
MR. BOS : Well, but she may change her mind if she realizes the consequences of that decision.
THE COURT: That would raise another question concerning the extent to which the waiver represents an understanding of what we are doing here . And that word comes directly from Faretta. So we must proceed.
Ms. Walters has given you the Jencks material. The witness is ready to testify, and we will proceed.
The Court will also note that in the context of an identity hearing, the Court cannot envision any
prejudice to Ms. Tucci-Jarraf by proceeding in this fashion.
MR. BOS : Your Honor , I guess our concern would be that she has an absolute constitutional right
to represent herself , and if she has inadvertently caused the Court to have some concerns about that
constitutional right , she should be allowed to clarify that. I don't know what her answer would be, whether or not, given what the Court has just said, she wants to withdraw her -
THE COURT: I must be bound by the last thing Ms. Tucci-Jarraf said, which is, "I do not waive any
rights." So you may have a seat and we will proceed.
MR. BOS : Very well, Your Honor.
THE COURT: You may call your witness.
MS. WALTERS: Your Honor , may the government just have a brief minute to provide some Giglio information to Mr . Bos as well?
THE COURT: Yes , of course .
MR. BOS: Your Honor, we are making a standing objection to my appointment.
THE COURT: Very well .
MR. BOS : Your Honor, Ms. Tucci has informed me that she does not want me representing her so filing or not filing, I'm moving to withdraw as counsel for Ms. Tucci.
THE COURT: Mr. Bos, is it your understanding that other counsel is entering an appearance?
MR. BOS: Your Honor, I'm not aware of any other counsel that would be entering their appearance.
So therefore, I would ask the Court to appoint new counsel for Ms. Tucci.
THE COURT: Very well . We will take a brief recess. Ms. Tucci-Jarraf, please return with the
marshal . Actually , you may take your seats while the Court takes another matter.
THE COURT: Mr. Bos , in accordance with local Rule 44 . 4 subsection (d) , the Court will deny the
motion, finding that the motion would unduly delay the proceedings and otherwise not be in the interest of justice.
Now, Ms . Walters, you may call your witness.
MR. BOS: Your Honor, may I just be heard on that briefly?
THE COURT: Mr . Bos , I believe I have little alternative other than to permit you to be heard. But
the Court has already articulated the reasons --perhaps I should indicate I am incorporating other reasons already set forth on the record as the basis of my determination that granting your request would be unfairly --I apologize --would not be in the interest of justice and would unduly delay the proceedings .
MR. BOS : Yo ur Honor , it's my understanding Ms. Tucci is not seeking a delay in the proceedings.
And during the intervening break I had a chance to speak with Ms. Tucci , and she explained to me that she was unclear of the Court's question, and if she were asked again today or right now if she is willing to waive her right to counsel with the understanding that the Court received a notice of filing, she is willing to waive her right to counsel.
THE COURT: Well , we are going to proceed, Mr. Bos, because the indication that we now have that
within the space of a matter of minutes there has been two changes of contention on that issue raises an issue of the extent to which the Court can make the Faretta findings.
In other words , to be specific , your proffer was that Ms. Tucci-Jarraf's request was to waive her
right to counsel. Ms. Tucci-Jarraf stated when I first inquired of her at the end of her narrative that she did not waive any right at all , including her right to be here , to have me proceed with the identity hearing or her continued detention , to name a few.
The next matter was that you then moved to withdraw . Now it appears that there is a request to waive counsel . This all undermines the finding that the Court must make consistent with Faretta that --perhaps I should say with respect to Ms. Tucci-Jarraf's understanding of what we are doing here and the issue regarding, for example, voluntariness. I know of no prejudice which would arise to Ms. Tucci-Jarraf from denying both your motion for leave to withdraw and from not undertaking any further inquiry consistent with Faretta . And I believe that is clear based upon all that the Court has found thus far, including the nature of this proceeding and the further delay which would be occasioned by granting your motion, undertaking a further inquiry or doing anything other than proceeding.
MR. BOS : Your Honor -
THE COURT: The record reflects that the Court has already expressed a concern that the hearing should have been conducted on no later than the third day, which was Monday . Counsel for the government was ready to proceed on Monday . The Court was prepared to proceed on Monday. It was with great reluctance that the Court granted the request to continue the matter until today.
We are all ready to proceed at this time . The witness is here, the Jencks material has been provided. The Giglio material has been provided. The exhibits have been provided. And we must proceed.
MR. BOS : Your Honor, the question is not whether or not we proceed today. The question is whether or not Ms. Tucci can exercise her constitutional right to represent herself in this matter. This is exactly what happened in Faretta where the Court over the defendant's objection required the defendant to accept a Court-appointed counsel .
THE COURT: Was Faretta a trial, Mr. Bos?
MR. BOS : It was a trial, Your Honor.