Archives for posts with tag: assault

UNITED STATES OF AMERICA, Plaintiff,
v.
VU NGUYEN, Defendant.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
2:03-cr-158-KJD-PAL
May 29, 2013

Opinion by United States District Judge Kent J. Dawson:

This matter is before the Court on remand from the Ninth Circuit Court of Appeals for the limited purpose of granting or denying a certificate of appealability.

This case arises from the armed robbery of Chong Hing Jewelers in Las Vegas Nevada. In the course of the robbery, several luxury watches having a value of approximately $885,000 were taken by two individuals. The robbers were covered, head-to-toe, in ninja-style white clothing. Before entering the store, one of the robbers executed the store security guard who had his back to them and was cleaning store windows. Eye witnesses had little to go on in describing the robbers other than the fact that one was carrying an assault-type rifle and the other was carrying a bag, and there appeared to be a height difference between the two individuals. The robbers were inside the store for no more than 90 seconds and store employees were assaulted in the process of the robbers obtaining access to the contents of display cabinets.

There was no deficiency in performance of counsel where counsel based the defense on a theory of lack of presence at the scene, incorporating facts and testimony of eyewitnesses to the crime combined with a lack of physical evidence placing Defendant there. This is also entirely consistent with the claim of Defense counsel that they were not previously informed by Defendant of his participation in the robbery. However, even if Defendant did inform counsel of his involvement and potential defense to the shooting, the outcome would not have been different.

Accordingly, Defendant is denied a certificate of appealability.

This may be the first mention of a white ninja outfit, as the prior clothing references refer to mostly (if not always) black clothing, but definitely not the first ninja robbery.

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This prisoners complaint refers to a ninja-chop attack by the corrections officer. The Court dismissed the complaint for lack of evidence.

CARLTON MARBURY, Plaintiff,
v.
TIM HICKS, JR., et al., Defendants.

CASE NO. 1:09CV407

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

2010 U.S. Dist. LEXIS 116985

Decided November 3, 2010 by US Magistrate Judge Greg White:

Marbury alleges that on September 24, 2008, while he was in Local Control (segregation) at MCI, C/O Windom assaulted him. (Doc. No. 1-1 at 19; Doc. No. 24 at 3.) Specifically, he alleges that C/O Windom “chopped” him in the neck/head in front of Sgt. Dewalt’s office. (Doc. Nos. 24 at 3; 42 at 4.) Marbury contends that the incident occurred while C/O Windom was returning him to his cell. (Doc. No. 142 at 3.) Marbury had attended a hearing where he learned he was being charged with “assault of a corrections officer” and now would be transferred to a Level 4 prison. Id.

C/O Windom states that as he was escorting Marbury to his cell on September 24, 2008, Marbury stopped to talk to another inmate. (Doc. No. 136-1, Windom Decl., ¶ 3.) C/O Windom then placed his hand on Marbury’s shoulder in order to get his attention. Id. Marbury fell to the ground and said something to the effect of: “You gave me one of those Ninja chop[s]. Half my body is paralyzed. However, if you give me a cup of coffee, I’ll go to my cell.” (Windom Decl., ¶ 4.) Marbury does not deny that he made this statement to C/O Windom. C/O Windom next states that Marbury voluntarily proceeded to his cell. [Footnote #2: C/O Windom stated that he believed he took a cup of coffee to Marbury in his cell. Id.] C/O Windom further acknowledged that he had no other problems with Marbury. (Id. at ¶¶ 3, 4, 8.)

On September 26, 2008, Marbury was examined by Nurse Barker at 9:00 p.m. during sick call. (Doc. No. 137, Barker Decl., ¶ 2.) Barker noted that Marbury complained that he had been assaulted on the morning of September 26, 2008, not September 24. (Barker Decl., ¶ 3.) He further noted that Marbury refused to remove his clothes to be examined and that, otherwise, no physical injuries were noted. (Barker Decl., ¶ 4.)

The Court notes:

C/O Windom contends that he simply placed his hand on Marbury’s shoulder in order to continue guiding him towards his cell. (Doc. No. 136 at 2.) C/O Windom argues that Marbury’s allegations have been found not credible by the prison administrators, and more importantly, he presents no evidence of any injury. (Doc. No. 136 at 3.)

Concluding:

For the above reasons, the Court grants Defendant’s Motion for Summary Judgment as to C/O Windom regarding the September 24, 2008, incident. (Doc. No. 136.) The Court denies Marbury’s summary judgment motion. (Doc. No. 140.) Accordingly, the case is hereby dismissed.

ninja chop

This pro se defendant was convicted of robberies and attempted carjacking and was described by witness testimony as wearing a ninja-suit and wielding an AK-47. Here the Court in 2007 denies motion for new trial.

UNITED STATES OF AMERICA
vs.
ANDRE HENRY

CRIMINAL ACTION NO. 06-33-01
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Opinion by Judge Jan E. DuBois, decided August 24, 2007:

On February 22, 2007, a jury convicted defendant Andre Henry of crimes related to eight robberies of fast food restaurants; the straw purchase, possession, and use of assault weapons and other firearms; two armed bank robberies; conspiracy to commit a third armed bank robbery; an attempted carjacking that involved shots fired at a police officer; and solicitation to commit murder of a federal grand jury witness. Currently before the Court is defendant Andre Henry’s pro se Motion for Judgment of Acquittal and Motion for New Trial Pursuant to Fed. Rules of Crim. Proc. 29 and 33 (Document No. 473, filed April 12, 2007). For the reasons that follow, defendant’s Motion for Judgment of Acquittal and Motion for New Trial are denied.

Included in the facts:

one of the victim of the attempted carjacking, Janine McCullers, testified as follows during the trial:

[A]s I’m ready to pull out of the parking space, an individual is in front of my car in all black, like a Ninja-type suit, with a gun pointed at me, standing in front of the car with a gun aimed like this — in front of my car saying something

The court denies defendant’s motion for acquittal, finding sufficient mens rea to meet the elements of the crimes of carjacking. Additionally defendant’s motion for a new trial is also denied.

Recall other instances of “ninja” as a type of clothing (worn by both criminals and law enforcement personnel) .

This 2007 case is an action pursuant to 42 U.S.C.S. § 1983 by a Muslim prisoner in Georgia claiming RLUIPA related First Amendment violations while in prison. Specicially, the plaintiff sought 52 books, some with the word “Ninja” in the title. He also had other issues like wearing his Kufi and having a digital version of the Qur’an. This plaintiff has become something of a jailhouse lawyer filing many actions, but also he is still involved in litigation about related incidents from 1995. The word ninja is mentioned only in this decision involving alleged prison guard violations of first amendment and the plaintiff was released from prison (serving a 10 year sentence) before this 2007 case was decided. But in a strange twist, he is back in prison now facing murder charges related to the original crime. The trial is happening like now (?-see update below-) see links below, but first the 2007 RLUIPA ninja case:

WASEEM DAKER, Plaintiff,
v.
JOE FERRERO, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION
CIVIL ACTION NO. 1:03-CV-02481-RWS
475 F. Supp. 2d 1325

Decided, February 26, 2007 by Judge Richard Story:

Plaintiff, proceeding pro se, initiated this civil action in August 2003 against Defendant Joe Philip Ferrero, Acting Commissioner of the Georgia Department of Corrections (“GDC”), and numerous prison officials. In his Fourth Amended Complaint, Plaintiff asserts nineteen claims pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., challenging aspects of his confinement in various GDC prison facilities. Specifically, Plaintiff challenges: (i) a requirement that he “stand at attention” in the presence of prison officials; (ii) a restriction on his wearing of a Kufi, a traditional article of Muslim headdress; (iii) a denial of his request to possess a digital device containing the text of the Qur’an; (iv) content-based restrictions on the sending and receiving of prisoner mailings and publications; and (v) the sufficiency of the procedures afforded to inmates and senders of mail when prisoners are denied certain mailings and publications. 1 On October 25, 2005, Plaintiff was released from prison, but he continues to pursue this litigation.

explaining:

In his third and eighth allegations, Plaintiff claims that Defendants denied him approximately 52 books on the basis of content in violation of the First Amendment. These books include: (1) The Catalog of Catalogs VI; (2) Mathematical Cryptology; (3) Applied Cryptography; (4) Using Microsoft Visual InterDev; (5) C++ How to Program; (6) Dubugging C++; (7) Night Movements; (8) Inside Kung-Fu; (9) Complete Karate; (10) Far Beyond Defensive Tactics; (11) SAS Training Manual; (12) The Encyclopedia of Survival Techniques; (13) The SAS Guide to Tracking; (14) Ninja: History and Tradition; (15) Ninja: Power of the Mind; (16) Ninja Mind Control; (16) Bin Laden: The Man Who Declared War on America; (17) Revolution by the Book; Different Loving; (18) How to Survive the IRS; (19) Witchcraft: A Secret History; (20) Practical Electronics; (21) Lip Reading Made Easy; (22) HansWehr Arabic English Dictionary; (23) Que Tal?; (24) C++ from the Ground Up; (25) Visual Basic from the Ground Up; (26) Ditch Medicine; (27) Do it Yourself Medicine; (28) The Mammoth Book of Love and Sensuality; (29) The Joy of Sex; (30) Building Bots; (31) Gonzo Gizmos; (32) Booby Trap Identification and Response Guide; (33) Death Investigator’s Handbook and DEA Investigator’s Manual; (34) Georgia Criminal Trial Practice; (35) Georgia Criminal Trial Practice–Forms; (36) Georgia Handbook on Criminal Evidence; (37) Green’s Georgia Law on Evidence; (38) Criminal Investigation: Basic Perspectives; (39) Law Enforcement Technology 260: Criminal Investigation; (40) U.S. Army Special Forces Medical Handbook; (41) Military Book Club Emergency Medical Procedures; (42) The Tao of Sexuality; (43) Ragnar’s Guide to the Underground Economy; (44) Investing Offshore; (45) Electronic Circuits and Secret of an Old-Fashioned Spy; (46) The Black Science: Ancient and Modern Techniques of Ninja Mind Control; (47) The Kama Sutra; (48) Samurai: The World of the Warrior; (49) Leadership Lessons of the Navy Seals; (50) Experiments in Electronic Devices and Circuits; (51) three Fantagraphics books; and (52) Guide to Getting it On. (See Pl.’s Statement of Material Facts [hereinafter “Pl.’s SMF”] PP 15-59.)

Defendants do not dispute that they denied Plaintiff these books. Rather, Defendants argue that Plaintiff has failed to demonstrate that he followed the proper procedures in requesting the books, and that, in any event, the books were properly denied on procedural grounds or after a review by a publications review panel. Defendants claim they are therefore entitled to qualified immunity, notwithstanding the reasons for the denial of each individual publication.

Go to this Headnote in the case.Regulations affecting the sending of publications to a prisoner are analyzed under the Turner reasonableness standard. Thornburgh, 490 U.S. at 413 (citing Turner, 482 U.S. at 89). Such regulations are valid if they are reasonably related to legitimate penological interests.

also,

As another example, Plaintiff claims that on October 26, 2004, two books, The Ninja and Endurance Techniques, were denied to Plaintiff. He claims that he was initially denied an opportunity to appeal, but after filing a grievance relating to that denial, Plaintiff was ostensibly given an opportunity to appeal. Nevertheless, Plaintiff alleges that Defendant Hilton Hall “refused to impound the publication for review by the [Publications Review Committee].” After Plaintiff filed another grievance relating to the denial of an opportunity to appeal, Defendant Steve Benton rejected the appeal, stating “only if the facility cannot determine admissibility is the publication to be impounded for further review by the PRC.” (See Pl.’s SMF P 46.) Once again, Defendants “dispute these allegations as written,” without providing any argument or citation to evidence in the record. (See Defs.’ SMF P 46.)

This case decision is on motion for Summary Judgment. The Court granted the motion in part and denied in part. For example the Defendant prison guards were granted summary judgment as related to the wearing of the Kufi. But as to the books, the allegation lived on. But ultimately in subsequent appeal, on a motion to vacate, in the same Court, Judge Story wrote on January 8, 2008, Daker v Chatman, 2008 U.S. Dist. LEXIS 1192 :

Plaintiff has demonstrated, that reasonable prison officials could disagree over whether certain of these titles pose legitimate security concerns in a prison environment. But that disagreement entitles Defendants to qualified immunity. Unless no reasonable prison official could conclude that any of these publications present a security risk, then the “considerable deference” owed to officials engaged in the “‘inordinately difficult undertaking’ that is modern prison administration” and the robust legal protection afforded to governmental agents, who must be allowed to “carry out their discretionary duties without the fear of personal liability or harassing litigation,” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002), entitles the denying official to qualified immunity. See Duamutef v. Hollins, 297 F.3d 108, 112 (2d Cir. 2002) (applying “heightened deference” to prison official’s decision to censor publications). For these reasons and for the reasons stated in its Order of August 24, 2007, the Court remains convinced that the denial of these publications was consistent with the protections afforded to prisoners under the First Amendment, see Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), and thus, Plaintiff suffered no constitutional injury. Insofar as Plaintiff moves to vacate this Court’s Order of August 24, 2007, that Motion is DENIED.

Amazingly, this is nowhere near the end of the story. Waseem Daker did get out of prison in 2005 but was re-arrested in 2010 on charges related to the same incidents from 1995. His original imprisonment was related to stalking and assault, and 2010 they arrested him for murder. An order May 9, 2011 by Magistrate Judge E. Clayton Scofield III, in Daker v. Warren, 2011 U.S. Dist. LEXIS 116451, explains,

At the combined probable cause/bond hearing on February 18, [2010] at which Daker was represented by retained counsel, attorney Brian Steel, the trial court heard testimony from Daker’s brother revealing that Daker (who was born in 1977) has family ties to Syria, where his parents were born and raised. The court also heard that Daker has lived in the Atlanta area since 1990; that after his release from state prison in 2005, following ten years of incarceration, until his arrest in January 2010, he worked in the family business as the general manager of a furniture store and lived with his family, who currently reside in a half-million dollar home; and that he has an expired Canadian passport, although it is unclear whether he has dual citizenship in Canada and the United States. (Probable Cause/Bond Hr’g Tr. at 31-41, ECF No. 4-1 at 39-49.) The state argued that Daker’s family has “large assets” and “connections in Syria, where the family’s from” and where Daker has traveled, and that Daker had “connections to Canada” at some point as well: “He has the ability to flee, he has the connections to flee, he’s a risk of flight.” (Id., Hr’g Tr. at 54-55, ECF No. 4-1 at 62-63.) The trial court ruled as follows: “Well, murder is different . . . [addressing Daker’s attorney], in the sense that somebody’s facing a life sentence, so I think that’s a strong motivation for someone to flee, or to think about fleeing. So, today I’m going to deny bond.” (Id., Hr’g Tr. at 55.) Daker filed a state habeas petition, which was denied on June 24, 2010. The Georgia Supreme Court, on November 3, 2010, denied Daker’s application for a certificate of probable cause to appeal that denial. (Pet. ¶ 10.)

And recently, June 25, 2012, Judge Story denied a variety of Daker’s motions in Daker v. Warren, 2012 U.S. Dist. LEXIS 87517, including a motion to reconsider bail, and a motion to recuse both Judge Story and Magistrate Judge Scofield, amongst other pretrial motions. The case remained on the docket the next day, but I can’t tell if it went to trial. It seems Daker first parted with his retained attorney nd was then acting pro se, filing all sorts of motions and then the Court took the unusual step of appointed backup counsel, and Daker seemed to allow that counsel to takeover (?) All this back-and-forth may be an attempted tactic. See article in Marietta Daily Journal “Trial of man accused in gruesome 1995 murder delayed 90 days” and in Atlanta Journal New, Cobb County: “Defendant representing himself in 1995 murder case” – But nothing more recent. Does that mean he hasn’t gone to trial yet or did he take an unreported plea?

waseem daker

— UPDATE —
Murder trial of Waseem Daker to begin in September“, Examiner.com, August 25, by Leigh Egan:

jury selection will begin on September 10th. The trial is set to take place at the Cobb County Superior Court.

Daker, 34, was charged in 2010 with the 1995 murder of Karmen Smith. Smith, a Delta flight attendant, was murdered in her Cobb County home. Only a year after the murder took place, Daker was accused of stalking Smith’s roommate. Subsequently, he was convicted and spent ten years in state prison. Although he remained as an person of interest in Smith’s murder, it wasn’t until 2010 that he was charged, based upon DNA evidence that was found at the scene.

Since then, Daker has attempted represent himself after firing several public and private defenders. Recently, however, he agreed to be represented by the law team of Michael and Jason Treadaway.

— UPDATE 2 — 9/9/2012

Murder trial to begin in Cobb woman’s 1995 strangling” by By Andria Simmons in The Atlanta Journal-Constitution

— UPDATE 3 — 9/14/2012
Defendant represents himself in flight attendant murder case” By Andria Simmons in The Atlanta Journal-Constitution
Stalking victim testifies in Cobb murder trial” By Andria Simmons in The Atlanta Journal-Constitution

The story is also being covered by Kim Issa in The Marietta Daily Journal:
“Opening arguments to begin today in E. Cobb murder trial” by Kim Isaza
Murder suspect was urged to get professional help” by Kim Isaza

and Andrew Spencer at WSBradio
Man charged in 1995 Cobb Co. murder representing himself” by Andrew Spencer as WSBradio
Defendant wants new lawyers in 1995 Cobb murder trial” by Andrew Spencer as WSBradio

— UPDATE 4 – 10/1/2012
“Daker sentenced to life plus 47 years” by Andria Simmons for AJC including a quote from the surviving victim, the son of the murdered woman, himself also assaulted and now currently 22 year’s old.