IN THE COURT OF APPEALS OF VIRGINIA
___________________________________________
M. ISMAIL SLOAN a/k/a SAMUEL H. SLOAN
v. No. 0934-93-3
COMMONWEALTH OF VIRGINIA
___________________________________________
PETITION FOR A REHEARING AND REHEARING EN BANC
M. Ismail Sloan respectfully prays that this court grant a rehearing and rehearing en banc of the en banc decision of this court dated June 20, 1995, which affirmed the conviction of the Lynchburg Circuit Court.
The Commonwealth's Brief upon rehearing en banc once again misstates the facts of this case. On page 2 it states: "The defendant thereafter went to California without permission. (App. 11) A capias was issued for his arrest 'because of his failure to abide by the terms of his recognizance bond and remain within the Commonwealth of Virginia.' (App. 3). He was extradited back and was present in circuit court on October 7, 1991 when his trial was set for January 10, 1992 (App. 76)."
This is demonstrably untrue. Petitioner was not extradited to Virginia until one full year later, in October, 1992 (not in October, 1991). Petitioner was not in court on October 7, 1991 when the trial date was set. The Commonwealth lacks evidence that the petitioner was ever notified of the January 10, 1992 trial date. Since that date was in any event later canceled and the trial continued, the Commonwealth lacks any evidence at all to support its conviction.
This appeal concerns the nine-year-long efforts of Charles and Shelby Roberts to seize and retain control of his daughter, Shamema Honzagool Sloan, for their own nefarious religious purposes. Charles and Shelby Roberts are in no way relatives or family members of petitioner's daughter.
The facts of this case are complex and convoluted and go back to at least 1986, when the Roberts filed their first third party petitions for the custody of his daughter in both New York and Virginia. The Roberts and their religious allies have succeeded in having petitioner arrested a total of nine times over the ensuing period, in such diverse places as Bangkok, Thailand, Guam, Honolulu, Queens and New York City. The most recent arrest took place in San Francisco, California on May 3, 1995. Petitioner was held for 42 days pursuant to a "parole investigation" without any charges being brought or hearing held or scheduled and then was released on June 13, 1995, 42 days later. This time, they contended that the petitioner had kidnapped his sons, Michael, 6, and George, 5, even though these two children had been given to him by their mother.
It is readily apparent that the courts of Virginia have never had jurisdiction over this case at all. Custody of the subject child was awarded to the mother by order of the Bronx, New York Supreme Court dated June 6, 1982, "as long as the mother remains together with the child in the State of New York." Sloan v. Awadallah, Bronx Supreme Court, 17815/1981. However, the mother did not remain with the child in the State of New York. Instead, in August 1982, while the matter was still pending on appeal before the Supreme Court of New York, Appellate Division, First Department, the mother returned to her native Pakistan, never to return. As a result, the child was in the legal custody of the father.
It is well established that under the Uniform Child Custody Act, a state court cannot assume jurisdiction over a child custody matter already pending in the court of another state, unless the originating state stays its proceedings. People v. Beach, 194 Cal. App. 3rd 955, 966, 240 Cal. Rptr. 50 (Cal. 1987). No order was ever entered by the New York court staying proceedings in that state. Moreover, the custody petition filed in the new state must clearly disclose the existence of child custody litigation pending in the other state. Id. Needless to say, the custody petitions filed by Charles and Shelby Roberts in Amherst County, Virginia, never disclosed that there was already child custody litigation pending regarding this child in New York. For this reason, there is now pending before the Virginia State Bar a disciplinary proceeding against the attorney for the Roberts for fraudulently filing that child custody petition. In Re Frank Gassaway Davidson, III, VSB Docket No. 95-090-1095. Nevertheless, the both the Roberts and Judge Janow were clearly aware that this child custody matter was pending in the Bronx Supreme Court. Indeed, the Roberts filed their own child custody petition in New York.
A further reason why Virginia has never had jurisdiction over this matter is that the petitioner has never been served with any of the child custody petitions of the Roberts, nor had he been served with the order awarding custody of the child to the Roberts. It is well established that service of process of the relevant court order is a prerequisite to a criminal proceeding for the alleged violation of that order. Without a showing that the errant parent was ever served with the court's order, the criminal proceeding must be dismissed. People v. Johnson, 151 Cal. App. 3d 1021, 1026, 199 Cal. Rptr. 231 (1984).
Nothing in the recorded here shows that the petitioner was ever served with any of the court orders. Moreover the petitioner testified that he had never been served with any of the court orders which were offered into evidence.
It is well established that a criminal conviction for violation of court orders entered without jurisdiction cannot stand. Kogon v. Ulerick, 405 S.E. 2d 441 (1991); Rader v. Montgomery County Department of Social Services, 5 Va. App. 523, 526, 365 S.E.2d 234, 236 (1988).
The Bronx Supreme Court eventually awarded custody of the subject child to the petitioner here, Ismail Sloan. A copy of the orders of the Bronx Supreme Court are annexed. Charles and Shelby Roberts thereafter obtained an order to show cause in the Bronx Supreme Court seeking to vacate and set aside that order, but they were unsuccessful and the New York order still stands in New York.
Thus, the present situation is that in New York (and also in California) Ismail Sloan has full legal custody of his daughter, and yet in Virginia he has been convicted and sentenced to five years in prison for the attempted abduction of his daughter and for failure to appear at the trial of that charge. Since is it obvious and well established that Charles and Shelby Roberts acquired possession of the subject child by having her kidnapped and brought to Virginia, this makes the Virginia courts an accomplice to the kidnapping of a child.
The case presented here concerns the false arrests engineered by the Roberts on September 5, 1991 and August 18, 1992. This case was originally scheduled for trial on January 10, 1992. (The agreement setting this case for trial said that the trial would be held on January 10, 1991. This apparently was a typographical error in date.) Petitioner originally believed that Judge Michael Gamble had disqualified himself from this case, having been so informed by counsel. When Petitioner discovered that Judge Gamble was insisting on being the trial judge, in spite of his obviously being disqualified by statute in view of his personal involvement in lawsuits against Petitioner over his late father's estate, Petitioner submitted a motion dated December 22, 1991 to disqualify Judge Gamble from appearing. Petitioner sent out 28 copies of this motion by Federal Express to every conceivable person connected with this case. Fred Hodnett, the Assistant Executive Secretary of the Supreme Court of Virginia, who is in charge of making assignments of judges, received one of the copies of his motion and promptly called Judge Gamble with an offer to make another judge available for that trial. Judge Gamble declined that offer, and instead sent Petitioner the attached letter dated December 30, 1991 stating that his motion that he recuse himself had been set for a hearing January 14, 1992. This obviously meant that the trial previously scheduled for January 10, 1992 would not take place on that date.
Prior to all of these events, Petitioner had received a court summons from the Alameda County Superior Court, Hayward Division, summoning him for a court hearing regarding his then long lost daughter, Jessica Vithanage Sloan. The first hearing had been set for December 3, 1991. Originally, two of his daughters, Shamema and Jessica, had been kidnapped at the behest of Charles and Shelby Roberts and brought to America. In October, 1990, custody cases for both daughters had been filed almost simultaneously in the Amherst County Juvenile and Domestic Relations Court. However, in defiance of a court order of Judge Lawrence Janow, Shanti Vithanage, the mother of Jessica, had absconded with their daughter, who was two years old at the time, and fled to California. The Roberts, upon discovering that the child was in California, sent FAX messages to the Alameda County Social Services Agency, thereby causing the child to be detained and placed into foster care. The Roberts also supplied the Alameda County Social Services Agency with Petitioner's name and mailing address and, accordingly, a summons was served upon Petitioner. It was pursuant to this summons that Petitioner went to California to attend this hearing, a fact which was well known to the Roberts. There is no reason to believe that just because Petitioner went to California to attend that hearing, that Petitioner would not return to Virginia in time to attend the hearing here as well.
Nevertheless, Judge Michael Gamble, who was fully informed of the court hearings in California, having been so notified by his attorney, James H. Massie III, as the transcript of the hearing of December 16, 1991 demonstrates, and even though Judge Gamble had previously written a letter to Mr. Massie stating that the trial would not be held on the previously scheduled date, nevertheless secretly issued a capias for his arrest. There was no order to show cause nor any hearing scheduled or held prior to the issuance of these capiases.
Thus, when Petitioner mailed his motion to disqualify Judge Gamble, Petitioner had no knowledge and no way of knowing that already there had been a capias issued for his arrest. Petitioner still believed that a trial would be held on January 10, 1992, and his motion clearly so stated.
However, the subsequent letter written by Judge Gamble dated December 30, 1991 made it clear that there would be no trial on January 10, 1992. Meanwhile, four hearings had been held in the Jessica case in California and a further one had been scheduled. See In re Jessica V-S, No. J153917-01. Petitioner was short of funds to travel first to Virginia for a routine adjournment hearing in Virginia and then to return to California for the equally important, if not more important, Jessica hearing. Therefore, Petitioner hastily scrawled a handwritten note dated January 8, 1992 addressed to William G. Petty, the Lynchburg Commonwealth Attorney, which stated the following:
" January 8, 1992
To Mr. William Petty
Lynchburg Commonwealth Attorney
Lynchburg, VA 24504
Dear Mr. Petty,
I am very, very sorry to say that it will be impossible for me to appear in court on Friday, January 10, the scheduled (I believe) date for my trial. I had made arrangements to come, but, due to last minute developments beyond my control, I am unable to attend. I realize that you regard this as an extremely serious matter, but the matter which detains me is even more serious than that. Therefore, I request a continuance until any date in February.
In addition, I wish to mention that my motion that Judge Gamble disqualify himself has been set by Judge Gamble to be heard on January 14 in Amherst. Accordingly, it seems logical (although logic does not usually follow in this particular case) that the trial now set for January 10 will have to be postponed until after the hearing by Judge Gamble on whether he will disqualify himself.
I also want to let you know that I have heard an unconfirmed rumor that on or about December 16, 1991 Judge Gamble tried me in absentia in Amherst and sentenced me to jail for contempt on the same subject matter as is concerned in the case before you. As far as I am aware, a trial in absentia is illegal in America, unlike in the United Arab Emirates where Charles Roberts, your complaining witness, has already been sentenced to life imprisonment. If what I have heard is true, the retrial by Judge Gamble of the same subject matter with respect to which I have already been convicted, violates the double jeopardy clause. In addition, since a trial in absentia is illegal, this constitutes a further ground to ask Judge Gamble to disqualify himself.
Again, I am really sorry that I cannot possibly attend on January 10, especially since, as you well know, I am completely not guilty of the charges against me.
Very Truly Yours,
M. Ismail Sloan"
The Commonwealth contends, and the majority of this court apparently agrees, that this letter constitutes a virtual confession of guilt and the fact that there was actually no hearing at all on January 10, 1992 is irrelevant because if there had been a trial, Petitioner would not have attended anyway.
At this point, Petitioner must explain that this is the third time that this exact sequence of events has occurred, where the hearing date is set, then the date is then canceled, and then, when Petitioner naturally do not appear for the canceled date, a capias is issued for his arrest.
The first instance of this occurred with respect to the date of October 8, 1986. Judge Lawrence Janow set that date on August 25, 1986, but then canceled the hearing on or about October 1, 1986. The docket sheet of the Amherst County J & D Court shows clearly that no hearing of any kind was held on October 8, 1986. Indeed, nothing happened at all in this case between 9/22/86 and 10/17/86. Nevertheless, four years later, on November 13, 1990, Judge Lawrence Janow issued a capias for his arrest, charging him with failure to appear on the October 8, 1986 date. It was this charge for which Petitioner was tried and sentenced in absentia on December 16, 1991 and found guilty by Judge Michael Gamble.
Similarly, Petitioner was charged for failure to appear on the December 16, 1991 date. However, Judge Gamble himself stated that he had written a letter stating that there would be no trial held on that date. Accordingly, Petitioner had been informed by his counsel, James H. Massie III, that his attendance on that date was not necessary. See transcript, page 18:
"THE COURT: Yeah, I had indicated in a letter that I probably wasn't going to hear the matter in 7312 today because I feared that it might be a double jeopardy issue with the abduction charge in Lynchburg, but I was going to find out whether he wanted a lawyer or a jury trial and all that and he just hasn't appeared, so I've got to issue that." (Tr. 18).
This was obviously a specious argument. His attorney, James H. Massie, was present in court on December 16, 1991, as this was the appeal day in Amherst. He was clearly authorized to notify the court whether Petitioner wanted a jury and Petitioner indeed had informed him that he did. Moreover, earlier in the same transcript, Mr. Massie had informed the court (See page 6-7):
" If your honor recalls in all this litigation, this--this child was Renuka's child and they had gone to California while--after they left the Roberts, and apparently the Roberts had gone and petitioned the Court service people and Social Services in California to investigate that child and from that situation they removed the child from Renuka and put her in a foster home, the same situation, almost the same pattern that ensued here.
So Sloan was summonsed to be -- I think you've got a copy here of the California summons -- went to California and had a letter here dated December the 10th stating that it would be impossible for him to come back to Amherst by the 16th.
They had the hearing Friday. He called me Saturday morning at 8 o'clock in the morning, from California -- it was 5 o'clock there -- telling me he didn't have the funds to get back here.
......
Of course, our position is the same as we argued in J & D Court that the show cause is for failure to appear and that he was never given notice of the October 8 hearing." (Tr. 6-7)
It is to be noted that the above mentioned October 8 hearing is the phantom hearing of October 8, 1986. Also, "Renuka" is the nickname for Shanti Latha Vithanage, the mother of Jessica.
Furthermore, it must be mentioned that the trial on this matter had previously been continued, over his strenuous objections, on innumerable occasions. This case was first set for trial on December 19, 1990, one full year earlier. Sloan appeared in court ready for trial, but Judge Janow did not appear. The case was not even listed on the calendar. Judge Janow called in later that day and told his clerk, June Wood, that he had been busy doing something else and would set the trial for another date. After that, first Judge Janow and then Judge Gamble postponed the trial again and again, obviously for the purpose of harassing Petitioner with this meritless prosecution. Petitioner attended court each time and the case was postponed at least five times. Finally, on the first and only occasion one year later when Petitioner could not be present, Judge Gamble tried and convicted him in absentia, even though he had previously notified his counsel that no trial would be conducted on that date.
One wonders: Why is it that Judge Janow and Judge Gamble keep doing this over and over again? Why not just set a trial date and go forward on that date?
The answer is that the underlying case is a child custody matter. In one of the most nefarious and monstrous criminal schemes imaginable, Judge Gamble (then a private lawyer representing Alma Coates Dawson Sloan), Judge Janow and Lynchburg Commonwealth's Attorney William G. Petty had personally conspired to have Shamema Honzagool Sloan, Ismail Sloan's then 8-year-old daughter, kidnapped and brought to America.
As part of this criminal scheme to kidnap this child, it was necessary to tie Sloan up in endless prosecutions, to make him come to court again and again, perpetually postponing the case until the child grows up. It can thus be seen that every time Sloan comes to court ready for trial, the case must be postponed on some ridiculous pretext. This did not only happen in 1990 and 1991. It also happened in 1986, when Judge Lawrence Janow kept refusing to conduct a hearing on the matters then pending.
Returning back to the case which is the subject of this appeal, it is clear that Sloan's letter dated January 8, 1992 was irrelevant. The Commonwealth conceded at the oral argument of this appeal on May 24, 1994 that without this letter, the charge against Sloan would have been frivolous. However, the Commonwealth contended that the letter proves that Sloan "intended" to commit a crime, even though he did not in fact commit the crime.
However, courts are often notified by parties that particular dates are difficult or inconvenient. Sloan's problem in this case was that his own attorney was not adequately representing him. As the letter dated January 3, 1992 from James Hingeley, the Lynchburg Public Defender, reveals, Sloan had asked his court appointed counsel to file a motion to disqualify Judge Gamble from appearing in this case. It was only because Mr. Hingeley refused to file this motion that Sloan was compelled to file this well grounded motion himself. In retaliation, Mr. Hingeley filed a motion to withdraw as counsel. This motion was not acted upon until October 15, 1992, nearly one year later. In the meantime, Sloan was without counsel. Although Mr. Hingeley remained his counsel of record, he did nothing about this case and ignored the proceedings.
No hearing of any kind was held on January 10, 1992. Neither the judge nor Sloan's counsel were present, for the obvious reason that the trial had been continued one week before. William G. Petty, Lynchburg Commonwealth Attorney, testified that he checked the courtrooms and found that Sloan was not present. However, the obvious reason why he checked the courtrooms was that he was trying to have Sloan arrested. Had Sloan actually attended, he would simply have been put in jail, without any hearing.
No capias was issued on January 10 or thereafter. Instead, nothing was done until July 6, 1992. At that point, William G. Petty sought a grand jury indictment for failure to appear, just as Judge Lawrence Janow had previously waited four years before issuing a capias charging Sloan for failure to appear on October 8, 1986.
The date of July 6, 1992 is especially significant because Sloan had been indicted for the attempted abduction of his own daughter on exactly October 7, 1991. Under the Virginia speedy trial rule, the Commonwealth had nine months to bring this case to trial. No trial had been scheduled after January 10, 1992. However, on May 18, 1992, Sloan had filed a federal lawsuit in the United States District Court against William G. Petty, charging Petty with false arrest and malicious prosecution.
Petty obviously knew that the "attempted abduction" indictment would expire on July 6, 1992 under the nine-months speedy trial rule. Therefore, on the very last day before this indictment was to expire, he had Sloan indicted on the obviously frivolous charge of failure to appear for trial on January 10, 1992. Sloan was promptly thereafter arrested in San Francisco, California and extradited to Virginia.
The dissenting opinion here correctly notes: "Under such circumstances, there was no factual basis for Sloan's conviction". It is well established that in a criminal prosecution, every element of the crime must be proven "beyond reasonable doubt". In re Winship, 397 U.S. 358 (1970); Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here there is no proof that any crime occurred at all. Sloan did not fail to appear for trial, simply because there was no trial to appear for, nor indeed was there a hearing of any kind on the date in question.
The questions arise: Why did Petty put the Commonwealth to the trouble and expense of extraditing Sloan from California? Why did he not simply set a new trial date and, if Sloan then failed to appear, try him in absentia and charge him with failure to appear?
The reason is that Petty obviously knew that Sloan would appear if he set a new trial date. There have been over twenty hearings in this case. Sloan has appeared at every hearing. Added to that is the parallel child custody case in the Bronx Supreme Court over the custody of this same child, Shamema Honzagool Sloan, plus the other custody case filed by the Roberts in the New York Supreme Court, Mr. and Mrs. Charles Roberts v. Ismail Sloan, No. 20991/1986. Added together, Sloan has appeared in court more than fifty times in all of these cases and has never missed a court date. Had Sloan not received a notice that his three-year-old daughter, Jessica, had been sexually molested in California, Sloan certainly would have been present at the December and January hearings, and the Lynchburg Commonwealth's Attorney obviously knew that. It was therefore necessary to make the false accusation that Sloan failed to appear for trial in order to have any chance of obtaining a conviction for anything, which was necessary to help Charles and Shelby Roberts to gain custody of this child.
This court states in essence that his court appointed attorney made the wrong objection, that he should have objected to the sufficiency of the evidence rather than to a fatal variance between the indictment and the proof. Here Petitioner must point out that his court appointed attorney was forced upon him. Petitioner objected to his representation and he has often stated that he did not want to be assigned to this case. On October 15, 1992, Judge Gamble removed James Hingeley from this case and appointed James H. Massie. Petitioner objected to this and filed a notice of appeal. On October 22, 1992, Judge Gamble removed James H. Massie and appointed David B. Bice, even though just two days earlier Judge Gamble had signed an order (unbeknownst to him) recusing himself from this case. Petitioner again objected and filed another notice appeal. Both appeals were dismissed on the grounds that these were not final orders. Petitioner has written innumerable letters to David B. Bice demanding that he raise these and numerous other issues on appeal. He has refused to raise this or any of the other issues that Petitioner demanded that he raise. Ironically, the one issue which Mr. Bice did raise is not on the long list of issues which Petitioner asked him to raise.
Every time Petitioner talks to his court appointed attorney, David B. Bice, Petitioner gets into an argument about this. Petitioner does not know what motivated Judge Gamble to appoint him as his counsel, but it is clear that David B. Bice is the weakest possible attorney from the point of view of his case. For example, Petitioner objected when he refused to object to the last minute amendment of the indictment, which struck out the words "for the trial." Judge Lumpkin refused to hear his objection, stating that Petitioner must speak through counsel. It is clear that having no counsel at all would have been better than having a counsel who refuses to represent him. Meanwhile, Mr. James H. Massie, his original counsel, has often stated that Petitioner never would have been convicted had he represented him at the trial.
For example, David B. Bice offered no defense at all on the other charge of "attempted abduction" of his daughter. He basically told the jury that Petitioner was guilty and has told others this several times as well, even though it is manifestly obvious that Petitioner is not guilty. Mr. Bice was not there. He did not see what actually happened. How can he possibly know whether Petitioner is guilty or not?
Section 18.2-47, the statute under which Petitioner was convicted, states:
"Abduction for which no punishment is otherwise prescribed shall be punished as a Class 5 felony; provided, however, that such offense, if committed by the parent of the person abducted and punishable as contempt of court in any proceeding then pending, shall be a Class 1 misdemeanor in addition to being punishable as contempt of court. Provided further, however, that such offense, if committed by the parent of the person abducted and punishable as contempt of court in any proceeding then pending and the person abducted is removed from the Commonwealth by the abducting parent shall be a Class 6 felony in addition to being punishable as contempt of court."
The facts of this case are that Petitioner was arrested on September 5, 1991 on a charge of the attempted abduction of his daughter, while just getting ready to leave for Richmond to argue his petition for appeal with regard to his habeas corpus petition for the custody of his daughter. That argument was scheduled for September 6, 1991 at 10:30 A.M before the Supreme Court of Virginia. Moreover, another hearing was scheduled in the Amherst County Circuit Court on September 25, 1991 for the custody of his daughter. That hearing subsequently resulted in a "final" order by Judge Gamble dated November 18, 1991, which awarded the custody of his daughter to Charles and Shelby Roberts. It is thus obvious that on September 5, 1991, the date of his arrest, this child custody matter was "then pending" and therefore the most that Petitioner could possibly be convicted of is a misdemeanor. See Bennett v. Commonwealth, 380 S.E.2d 17, 21 (1989); United States v. Sheek, 990 F.2d 150 (4th Cir. 1993); United States v. Boettcher, 780 F.2d 435 (4th Cir. 1986).
Petitioner has raised this point at every opportunity in his discussions and arguments with his court appointed counsel. He simply disagrees, without giving any cogent reason. Petitioner feel that this was a matter for the judge and the jury to decide and that his court appointed counsel had no right to refuse to raise this argument.
Similarly, Petitioner was convicted primarily on the basis of hearsay statements allegedly made by his daughter. According to the testifying witness, an agent of Charles and Shelby Roberts, his daughter was heard to say: "He's going to get me. I know he's going to get me." (Transcript of 1/12/93, pages 123-126). How could such a statement possibly be admissible when his then 11-year-old daughter was available to testify but was not called as a witness? See Ohio v. Roberts, 448 U.S. 56,63 (1980), Idaho v. Wright, 497 U.S. 805, 819 (1990); United States v. Spotted War Bonnet, 933 F.2d 1471, 1474 (8th Cir. 1991) cert. denied 112 S.Ct. 1187 (1992); Webb v. Lane, 922 F.2d 390, 393 (7th Cir. 1991); Kirakofe v. Commonwealth, 198 Va. 833, 97 S.E.2d 375, 379 (1991). Mr. Bice weakly made this argument before the trial court, but refuses to renew it on appeal.
Moreover, the facts of this case are identical with those of Maine v. Moulton, 474 U.S. 159 (1985), because the principal witness for the Commonwealth who testified the longest was a police informant who had been his cellmate in the Lynchburg City Jail, and who later tape recorded telephone conversations with Petitioner in the presence of a police officer, thereby violating his Miranda rights, resulting in an unconstitutional conviction. Again, Mr. Bice refuses to raise this argument.
Furthermore, the double jeopardy argument, which Judge Gamble himself indicated was a valid argument at the aforementioned hearing on December 16, 1991 was another argument Mr. Bice refuses to raise. Mr. Bice told him during the trial that this argument was invalid because the previous trail had been in a different jurisdiction, namely the Amherst County Circuit Court. However, even a trial in a different court causes double jeopardy to attach. See Grady v. Corbin, 495 U.S. 508 (1990); Payne v. Virginia, 468 U.S. 1062 (1984); Brown v. Ohio, 432 U.S. 161, 169 (1977).
Pertitioner is aware that there is a Virginia rule that one cannot raise the grounds of inadequate representation of counsel on a direct appeal. However, this rule should not cause an innocent man to be found guilty, especially where, as here, there was no possible "strategic reason" for Mr. Bice not to raise these arguments, other than his own laziness and indifference. The fact that Petitioner has to file this petition for a rehearing pro se, again because Mr. Bice refuses to raise these arguments and defenses, speaks for itself.
Now, let us consider what the jury that convicted Petitioner knew about all of this. It turns out that the jury knew none of the facts discussed by the appellate court in this appeal, nor did it know about any of the factors discussed in this petition for a rehearing en banc.
Here is what the jury had before it: It had the agreement setting the case for trial on January 10, 1991, it had Petitioner's letter to Petty dated January 8, 1992 and it had the "final order" of Judge Gamble dated November 18, 1991. That is all that the jury had on this issue.
In other words, the jury never saw Judge Gamble's letter dated December 30, 1991, it never saw the order of the court continuing the matter indefinitely dated January 3, 1992, and it never saw James Hingeley's letter dated January 3, 1992, informing him of the trial continuance. In short, the three documents which prove that Petitioner is not guilty were documents which the jury never saw and knew nothing about. More than that, in final summation, the Lynchburg Commonwealth Attorney told or at least strongly implied to the jury that these documents did not even exist. Here is what the Commonwealth Attorney said (Transcript of 1/13/1993, page 190):
"Mr. Sloan testified that there is a court order continuing this case generally. Where is that court order? Why can't he produce it? Mr. Sloan testified that there is a letter from Judge Gamble continuing this case. Where is that letter? Mr. Sloan testified that he received a letter from his own counsel informing him of the trial continuance. Where is that letter?
The answer to these questions are that Petitioner was in jail and had been in jail for the previous five months. There was no way for him to go to his home and retrieve these items of documentary evidence. More than that, the house itself had been sealed pursuant to a court order by Judge Gamble obtained by his brother, Creighton W. Sloan, who is an ally of Charles and Shelby Roberts, in the case entitled Creighton W. Sloan v. Helen Marjorie Sloan and Samuel H. Sloan. The house was subsequently sold and all of his personal papers were for the next two years held in storage pursuant to an order of attachment obtained by Charles and Shelby Roberts. Thus, until 1995, Petitioner was unable to retrieve the documents which Petitioner needed to prove his innocence. The only reason Petitioner has the annexed documents is that Petitioner was eventually able to obtain duplicates from other sources.
The fatal flaw in this court's majority opinion comes at the bottom of page three where it states: "The Commonwealth further proved ..... the appellant was required under the conditions of the bond to be present on that date."
In fact, this is not true. No hearing took place on January 10, 1992. No judge was present. No attorney's appeared in the courtroom. The bailiff did not call this case. This case was not listed on the calendar of cases to be heard on that day. All this was conceded by the Assistant Attorney General, Marla Lynn Graff, at the oral argument of this appeal. Moreover, his attorney had informed Petitioner in the annexed letter dated January 3, 1992 that Petitioner was not required to appear on January 10, 1992. Thus, not only was Petitioner not required to appear but Petitioner knew that Petitioner was not required to be present. The mere fact that Petitioner wrote a letter to the Lynchburg Commonwealth Attorney that Petitioner could not possibly be present on that date clearly does not make Petitioner guilty of a crime, especially a felony conviction which has resulted in his being sentenced to five years in prison.
Finally, Petitioner did not leave the Commonwealth of Virginia in violation of the conditions of his bond. The bond stated that Petitioner could not leave the Commonwealth of Virginia except as required by court order. The summons Petitioner received from California was an order of the Alameda County Superior Court, which created at least as strong an obligation to appear in the proceedings before that court, especially since it was personally served upon Petitioner, whereas Petitioner has never received a court process or summons regarding the case of the custody of his daughter in Virginia. Indeed, Virginia has no jurisdiction at all over this matter, as his daughter is in Virginia now only as a result of having been kidnapped and brought to Virginia by Charles and Shelby Roberts. To sentence him to prison on such a flimsy and baseless charge, when the Roberts are obviously the guilty parties, makes this court a virtual accomplice to the kidnapping of his daughter.
Indeed, the case in California was, in fact, far more important than the case in Virginia. Because of his traveling to California and appearing at the hearings there, Petitioner was ultimately awarded the custody of his daughter, Jessica, by the Alameda County Superior Court in an order dated June 11, 1993, which is the reason why Petitioner is residing in California (on parole) now. Had Petitioner not traveled to California, appeared and contested this matter, not only would Petitioner never have been awarded the custody of his daughter, but she would likely have remained in foster care and might even have been taken for adoption. Thus, this was clearly a matter of far greater importance and consequence than a mere five years in prison on the utterly false, frivolous and malicious charges brought against Petitioner in Virginia.
CONCLUSION
For all of the reasons set forth above, this petition for a rehearing and rehearing en banc should be granted and the conviction by the trial court should be reversed.
Respectfully submitted,
M. Ismail Sloan
DATED: June 20, 1995
CERTIFICATE OF SERVICE
This is to certify that on June 20, 1995 the undersigned served a true copy of the within petition for a rehearing and rehearing en banc by mailing a true copy of the same addressed to:
Richard B. Smith
Assistant Attorney General
101 North 8th Street
Richmond VA 23219
David B. Bice
P. O. Box 1358
Lynchburg VA 24505
____________________________
Samuel H. Sloan