Dr. Malachi Z. York

USC 2255 Motion

 IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
UNITED STATES OF AMERICA, *
Respondent-Plaintiff, * Orig. Crim. No. 5:02-CR-27-CAR
v. *
DWIGHT D. YORK, *
Petitioner-Defendant. *
MOTION TO VACATE, CORRECT, OR SET ASIDE
THE PETITIONER’S SENTENCE PURSUANT TO 28 U.S.C. § 2255
COMES NOW, the Petitioner DWIGHT D. YORK, by and through undersigned counsel,
and moves this Honorable Court to vacate the convictions and subsequent sentence heretofore
imposed, based upon the denial of the rights to a fair jury trial, due process of law, and effective
assistance of counsel as guaranteed by the Fifth and Sixth Amendments to the United States
Constitution. At sentencing, counsel failed to properly preserve an argument based upon the
decision issued in Blakely v. Washington. On appeal, counsel was ineffective in that, during oral
arguments, counsel made false claims that the Blakely-Booker issue had been preserved at the
lower level. In doing so, appellate counsel failed to argue that the standard of review utilized by
the Court of Appeals was erroneous. Trial counsel was also ineffective at trial because he was
unprepared to try this complex multi-count prosecution, ill-prepared to address the expert
witnesses presented by the government, ill-equipped to provide legal representation in a matter
of this magnitude, ineffective insofar as the directive and desires of the Petitioner were ignored,
and because the post-trial counsel’s actions were totally inconsistent with the wishes of the
Petitioner, when he withdrew the Petitioner’s motion for new trial despite the merits of the issues
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007

 Page 1 of 12
raised therein and without advising the Petitioner that such action was being taken. In addition,
the Petitioner was deprived of effective legal representation when the Court, in violation of the
6th Amendment, forced the Petitioner to have counsel that had been fired to continue in a
representative capacity. Moreover, Petitioner was deprived of a fair trial as a result of the
Court’s clear bias as gleaned from its inappropriate visits to Internet Web sites for the purpose of
conducting independent research regarding the Petitioner and his affiliations.
Equally, significant is the fact that several witnesses of serious impact have now recanted
their testimony and advised of serious prosecutorial misconduct calling the Petitioner’s entire
conviction into question particularly in light of the fact that trial counsel was both ill-prepared
and ill-equipped at the time of trial to go forward and/or completely advance the Petitioner’s
interest. Furthermore, the Court had no jurisdiction to convene or conduct a trial of the
defendant due to his status as a Liberian diplomat.
Therefore, the Petitioner requests that his convictions and sentence be vacated. In support
hereof, the Petitioner states the following:
1. On November 21, 2003, a superseding indictment was returned against the Petitioner by
the Grand Jury for the Middle District of Georgia. The indictment charged the Petitioner
with: conspiracy to commit racketeering acts in violation of 18 U.S.C. § 1962(d)(Count
One); racketeering violations in violation of 18 U.S.C. § 1962(c)(Count Two); conspiracy
to transport minors in interstate commerce for unlawful sexual activity and conspiracy to
structure cash transactions to evade currency reporting requirements in violation of 18
U.S.C. § 371(Count Three); transporting minors in interstate commerce for the purposes
of unlawful sexual activity in violation of 18 U.S.C. §§ 3283, 2423(a) and 2(Counts Four
thru Six and Eight); traveling in interstate commerce for the purpose of engaging in
2
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 2 of 12
unlawful sexual acts with a minor in violation of 18 U.S.C. §§ 3283 and 2423(b)(Count
Seven); structuring transactions to evade reporting requirements in violation of 31 U.S.C.
§§ 5324(a)(3) and 5313(a) and 18 U.S.C. § 2(Counts Nine thru Eleven); RICO forfeiture
pursuant to 18 U.S.C. § 1963(Count Twelve); and criminal forfeiture in violation of
exploitation of minors pursuant to 18 U.S.C. § 2253(Count Thirteen).
These charges arose out of an investigation conducted by Putnam County,
Georgia law enforcement officials, the Federal Bureau of Investigation (FBI), and the
Internal Revenue Service (IRS). The Petitioner was allegedly the leader of a religious
organization, initially named the Nubian Islamic Hebrews, that was deemed a cult by the
FBI, prompting the instant investigation. In 1998, law enforcement officials started
receiving anonymous letters and e-mails stating that sexual misconduct was occurring on
the Petitioner’s property in Eatonton, Georgia. By 2001, local and federal law
enforcement officials were receiving telephone calls alleging sexual misconduct on the
Petitioner’s property, including the sexual abuse and molestation of children.
Allegedly, weekly income from the organization’s sale of goods was prepared for
deposit after the removal of large denomination bills, which were stored by the Petitioner
in a suitcase in his bedroom. At the Petitioner’s instruction, it was alleged, no more than
$9,000 was to be deposited into any single account at a time. Paperwork was not to be
filled out on any cash deposit. Several times, according to the allegations at trial, aa
follower left the bank without making a deposit when instructed by the bank teller than a
form would have to be completed. One bank with which the Petitioner had regular
dealings filed several suspicious activity reports (SARs) and currency transaction reports
(CTRs) regarding the Petitioner’s financial dealings. The FBI obtained these reports,
3
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 3 of 12
learning that on 41 separate occasions, multiple deposits totaling more than $10,000 were
made to one or more of the Petitioner’s bank accounts. At trial, the government
presented evidence designed to prove that deposits made on September 29 and 30, 1999;
October 6 and 8, 1999; and April 5 and 11, 2000 were designed to evade currency
reporting requirements.
Aside from the financial irregularities alleged to have occurred in this case,
allegations of sexual abuse of minors by the Petitioner were also raised. Allegedly,
previously molested younger children were employed to bring new children to the
Petitioner once they had gotten older. Children refusing the Petitioner’s advances were
ignored, not fed well, and not allowed to go outside and play. It was also alleged that
eventually, a family could be expelled from the compound following repeated refusals to
join in sexual activity by children. The children were told that the sexual activity was
instructional as well as part of an ancient Sudanese ritual, assisting in preparing the child
for marriage. The women would then bring the child into the Petitioner’s room, where
they would watch pornographic movies. Presents were allegedly given to children who
cooperated. Several of the children allegedly received sexually transmitted diseases from
these encounters. Chlamydia Trachomatis, Herpes Simplex I, and herpes simplex II were
detected in several of the children involved in the instant matter. No such diseases,
however, were ever associated with the Petitioner.
The investigation of this matter revealed eleven alleged victims of sexual
molestation that had crossed state lines. Habiybah Washington was allegedly first
molested by the Petitioner when she was 13 years of age. Washington was also allegedly
forced by the Petitioner to bring other minors to him for sexual purposes, including
4
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 4 of 12
Amala Noel. When arriving from New York to the Eatonton compound, Washington was
pregnant with the Petitioner’s son. The Petitioner allegedly threatened Washington with
physical violence when she informed him that she was leaving the compound in
February, 2001. After the trial, Habiybah Washington, in a sworn affidavit, stated that
her testimony at trial had been fabricated. Docket Entry 342. Washington stated that the
allegations raised against the Petitioner were coerced from Jacob York, the Petitioner’s
son, who blamed the Petitioner for the premature death of his mother. Docket Entry 342.
2. The Petitioner entered an initial plea of not guilty to the aforementioned charges.
Thereafter, the Petitioner filed a motion to sever pursuant to Fed.R.Crim.P. 8(a) and 14.
The Petitioner also filed a motion to dismiss the indictment based upon the outrageous
government conduct in this matter. A motion to dismiss the superseding indictment was
also filed, based upon the Petitioner possessing head of state immunity as the leader of
the Yamassee Indian tribe. Counsel also filed a motion to dismiss Counts Six and Two of
the superseding indictment for failing to allege a violation of federal law. A motion was
also filed to exclude the testimony of Kenneth Lanning. The court denied all of the
aforementioned motions. Counsel went on to file several more motions prior to trial,
including motions to suppress evidence of alleged victim’s chastity pursuant to F.R.E.
412, for additional peremptory strikes, and for admission of motive evidence as an
exception to the rape shield law. These motions were also denied. On December 12,
2004, Adrian L. Patrick entered his appearance as counsel for the Petitioner. Counsel
filed a motion to continue the trial in the interest of justice for counsel to prepare for trial
on January 2, 2004. That motion was denied by the Court on January 5, 2004, meaning
that counsel had less than one month to prepare for the Petitioner’s trial.
5
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 5 of 12
3. Voir dire started in the instant matter on January 5, 2004 in the United States District
Court for the Middle District of Georgia, Macon Division,1 before the Honorable C.
Ashley Royal. The trial lasted until January 23, 2004, at which point the jury returned a
verdict of guilty as to all counts of the superseding indictment except for Counts Eight
and Twelve, upon which the Petitioner was acquitted.
4. On January 30, 2004, the Petitioner filed a motion for a new trial. On the same day, a
motion for judgment of acquittal was also filed. The motion for new trial was based upon
the recantation of witness Habiybah Washington. However, then counsel withdrew these
motions without first discussing such actions with the Petitioner. Docket Entry 342.
5. Prior to sentencing, a Pre-sentence Investigation Report was prepared. As several counts
of conviction consisted of numerous criminal acts, each act was identified and grouped
with other acts that exhibited a common criminal objective, pursuant to U.S.S.G. §
3D1.2. Twelve groups were created. Count Groups IV, V, and VI all involved the
interstate transport of minors for unlawful sexual activity as the common criminal
objective. These three groups had the highest total offense level. A base offense level of
27 was received in these groups for criminal sexual abuse, pursuant to U.S.S.G. §
2A3.1(a). A four level enhancement was issued pursuant to U.S.S.G. § 2A3.1(b)(2)(A)
as the victims had not reached the age of twelve. Two levels were added to the base
offense level pursuant to U.S.S.G. § 2A3.1(b)(3)(A) as the victim was under the care and
supervisory control of the Petitioner. A four level leadership enhancement was issued. A
further two level enhancement was issued pursuant to U.S.S.G. § 3B1.4 as a person under
1 / The actual trial itself was moved to Brunswick, Georgia due to pretrial publicity which made it all but impossible
for the defendant to obtain a fair trial.
6
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 6 of 12
the age of 18 was used to aid in committing the offenses at issue. The total offense level
was therefore determined to be 39. Count Groups II and III, also based upon the
interstate transport of minors for unlawful sexual activity, resulted in the calculation of a
base offense level of 35. Unlike Count Groups IV thru VI, the Petitioner did not receive
a two level enhancement for using an individual under the age of 18 in committing the
offenses and the age of the victim was between 12 and 16, necessitating a two level
enhancement instead of a four level enhancement, pursuant to U.S.S.G. § 2A3.1(b)(2)(B).
Taking the greatest adjusted total offense level value, 39, and adding the appropriate
number of ‘units’ as determined by U.S.S.G. § 3D1.4, which was calculated to be 4, the
combined total offense level in this matter was determined to be 43.
The Petitioner received one criminal history point pursuant to U.S.S.G. §
4A1.1(c) for a 1987 conviction for possession of false identification with intent to
defraud the United States. With only one criminal history point, the Petitioner’s criminal
history category was determined to be I. Based upon an offense level of 43 and a
criminal history category of I, the Guideline range of imprisonment was determined to be
life. Pursuant to U.S.S.G. § 5G1.2(d), because the count carrying the highest statutory
maximum was less than the Guideline range of imprisonment, sentences imposed on
other counts shall run consecutively in order to produce a combined sentence equal to the
Guideline range of imprisonment.
6. Objections were filed by the Petitioner to the Pre-sentence Investigation Report (PSR).
The Petitioner argued that the 1993 version of the Sentencing Guidelines should have
been utilized in this matter instead of the 2000 Guidelines, in order to avoid an ex post
facto violation. The Petitioner also moved for a downward departure based upon his
7
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 7 of 12
8
worsening mental state as well as the possibility that he will be victimized in prison due
to the nature of his case. Counsel also objected to the application of a leadership
enhancement and a ‘care and supervisory’ enhancement pursuant to U.S.S.G. §
2A3.1(b)(3)(A).
7. On April 22, 2004, the Petitioner appeared for sentencing. The Petitioner’s objections
were denied. The Petitioner was sentenced to a term of incarceration of 1,620 months.
Judgment was entered against the Petitioner on May 7, 2004.
8. The Petitioner thereafter filed a timely notice of appeal. On appeal to the United States
Court of Appeals for the Eleventh Circuit it was argued that: (1) the indictment misjoined
the sexual abuse charges with the financial structuring charges, and the district court erred in
failing to sever those charges; (2) the district court erred in refusing to dismiss the RICO counts
because the United Nation of Nuwaubian Moors is not an “enterprise” under RICO and because
there is insufficient connection between the Petitioner’s alleged acts and the Nuwaubian
organization; (3) the district court erred in refusing to dismiss the indictment as the indictment
was improperly returned by a grand jury tainted by pre-trial publicity; (4) the district court erred
in allowing the government to call a rebuttal witness and disallowing the Petitioner to do the
same; (5) there was insufficient evidence to convict the Petitioner of the charges that he
transported minors in interstate commerce with the intent that the minors would engage in
unlawful sexual activity or that the underlying sexual activity undertaken by the Petitioner was
unlawful; (6) the district court erred in denying the Petitioner’s motion to dismiss two counts of
the indictment because the minor victim was over the age of consent at the time the sexual act
took place; (7) the district court erred in denying the Petitioner a continuance when the Petitioner
retained new counsel prior to trial thereby creating a prima facie case of ineffective assistance of
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 8 of 12
9
counsel; (8) the Petitioner’s sentence was issued in violation of the Sixth Amendment under
United States v. Booker because the district court enhanced the sentence based upon facts not
reflected in the jury’s verdict and issued a sentence under a mandatory Guideline scheme; (9) the
petitioner’s sentence was issued in violation of the ex post facto clause of the United States
Constitution because the Petitioner was sentenced under the November 2000 edition of the
Guidelines rather than the November 1993 edition of the Guidelines; and (10) counsel was
ineffective in withdrawing motions for judgment of acquittal and for a new trial without the
Petitioner’s consent.
At oral argument, counsel for the Petitioner argued that the Booker argument had been
preserved in the district court, even though it clearly had not been preserved. In doing so,
counsel failed to address the error of the appellate court’s posture that the plain error standard did
not serve to warrant remand in this case, despite the statutory error in applying the Guidelines in
a mandatory fashion.
On October 27, 2005, the appellate court affirmed the Petitioner’s conviction and
sentence. The 11th Circuit opined that most of the issues raised on appeal “lacked merit,” and
only the pre-trial publicity and severance claims were worthy of any further discussion. The 11th
Circuit further opined that the issue of ineffective assistance of counsel was not properly before
it because the record below was not sufficiently developed. U.S. v. York, 428 F.3d 1325, 1330
(11th Cir. 2005). The Petitioner thereafter filed a timely petition for writ of certiorari with the
United States Supreme Court, raising those issues that were raised on appeal. The petition was
denied by the Supreme Court on June 26, 2006. 126 S.Ct. 2948 (2006).
9. The Petitioner has taken no further legal action in this case.
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 9 of 12
10
10. During pre-trial proceedings, the Petitioner was represented by Edward T.M. Garland,
Esq. 3151 Maple Drive, N.E., Atlanta, Georgia 30305; Frank Rubino, Esq., 2601 South
Bayshore Drive, Suite 1400, Coconut Grove, Florida 33133; Harry Jean Charles, Esq.,
P.O. Box 95, Jonesboro, Georgia 30237; Leroy R. Johnson, Esq., 3915 Cascade Road,
S.W., Promenade Park, Suite 260, Atlanta, Georgia 30331; and Manubir S. Arora, Esq,
3151 Maple Drive, N.E., Atlanta, Georgia 30305. At trial, sentencing, and on appeal, the
Petitioner was represented by Adrian L. Patrick, Esq., 1044 Baxter Street, Athens,
Georgia 30601; and Benjamin A. Davis, II, Esq., 1201 Peachtree Street, 400 Colony
Square, Suite 200, Atlanta, Georgia 30361. Jonathan Marks, Esq., 220 Fifth Avenue, 3rd
Floor, New York, New York 10001. The Petitioner submits that his detention is
unlawful, and refers the Court to the Memorandum of Points and Authorities in further
support thereof which shall be filed as a supplement to this pleading forthwith.
11. The Petitioner is currently in the custody of the Federal Corrections Institution in
Florence, Colorado. The Petitioner’s inmate registration number is 17911-054.
WHEREFORE, in consideration of the foregoing as well as arguments of law contained
in the forthcoming Memorandum of Points and Authorities, the Petitioner respectfully prays that
this Court issue an Order vacating the convictions and sentence imposed in this case based upon
the challenges to the existence of due process during the trial itself, the ineffective assistance of
counsel throughout the proceedings before the Courts, and the ineffective assistance of counsel
throughout the proceedings before the Courts, and the lack of proper jurisdiction of the Court in
this matter. In the absence of the issuance of such an order, the Petitioner requests that at a
minimum the Court is obligated to convene an evidentiary hearing on these issues.
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 10 of 12
11
Respectfully submitted,
Reginald A. Greene, Esquire
675 West Peachtree Street, N.W.
Suite 4300
Atlanta, Georgia 30375
(404) 335-0761 voice
(404) 614-4054 fax
Malik Shabazz
1250 Connecticut avenue, N.W.
Washington, D.C. 20036
(202) 408-7021
Gregory L. Lattimer
Law Offices of Gregory L. Lattimer
1100 H Street, N.W.
Suite 920
Washington, D.C. 20005
(202) 638-0095
(202) 638-0091 (Fax)
lattlaw@aol.com
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 11 of 12
Case 5:02-cr-00027-CAR Document 382 Filed 06/27/2007 Page 12 of 12