M. ISMAIL SLOAN a/k/a SAMUEL H. SLOAN
Record No. 951252
Court of Appeals No. 0934-93-3
COMMONWEALTH OF VIRGINIA
PETITION FOR A REHEARING
M. Ismail Sloan respectfully prays that this court grant a rehearing of its decision dated October 25, 1995, which refused the petition for appeal from the en banc decision of the Court of Appeals dated June 6, 1995, which affirmed the conviction of the Lynchburg Circuit Court by a vote of 6-3.
The petition for appeal was granted by the Virginia Court of Appeals. The appeal was argued on the merits on May 24, 1994. On October 4, 1994, by a 2-1 vote, the Court of Appeals affirmed, with Judge Koontz dissenting. On October 18, 1994, this petitioner filed a pro se petition for a rehearing and rehearing en banc. On November 18, 1994, this petition for a rehearing en banc was granted. On January 5, 1995, the Court of Appeals dismissed the appeal for the apparent failure of petitioner's court appointed attorney to file his opening brief in the proper form or with the proper color covers. On January 19, 1995, this pro se petitioner again filed a petition for reinstatement of this appeal. On February 3, 1995, this petition was granted. Finally, petitioner's court appointed counsel succeeded in filing a proper brief (which was nothing more that a photocopy of his original petition for appeal and said nothing about the Court of Appeals 2-1 decision.)
The now reinstated appeal was argued before the full en banc court. On June 6, 1995, the conviction was affirmed by a 6-3 vote. Judges Moon, Benton and Koontz dissented. (Judge Barrow, who apparently was also among the dissenting judges, had since died.) The court appointed counsel then filed a petition for appeal in this court.
In the current petition for appeal, none of this history is disclosed to this court. This court has not been informed that the petition for appeal was granted by the Court of Appeals or that the conviction was subsequently affirmed by a 2-1 vote, or that a rehearing en banc was granted or that there was a 6-3 vote in favor of affirming the conviction.
The reason that none of this is disclosed in the current petition for appeal is that petitioner's court appointed counsel has merely filed a photocopy of his original petition for appeal filed in 1993, with only the filing date changed.
The fact that the court appointed counsel does not even inform this court of the 6-3 vote by the Court of Appeals, which stated that three distinguished judges of the lower appellate court felt that the conviction should be reversed, is just one of many examples of the problems which this petitioner keeps having with his court appointed counsel.
It is also important to note that the judges who voted in favor of reversing the conviction did not do so on some obscure technical grounds, but rather on the grounds that petitioner was obviously not guilty of the charge. On the other hand, the six member majority which voted in favor of affirming the conviction did so on the grounds that the petitioner's court appointed counsel had failed to frame the issues properly on appeal and, therefore, the conviction should be affirmed, even though the petitioner was demonstrably not guilty. Here is the dissenting opinion of Judge Koontz, to which Justices Moon and Benton subscribed:
Koontz, J., dissenting.
I respectfully dissent. In simple terms, the issue in this appeal is whether the Commonwealth proved the offense charged in the indictment. See Mitchell v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925). In my view, it did not.
Code Sec. 19.2 - 128 makes it a crime to willfully fail to appear before any court "as required." Pursuant to this statute, the indictment charged that Sloan willfully failed to appear before the trial court on January 10, 1992, "as required by [his] bond."
January 10, 1992 was the day previously set for Sloan's trial on an unrelated criminal charge. Acting upon information that Sloan had left the Commonwealth in violation of the conditions of his bond and a letter from Sloan expressing his intent not to appear on that date, the trial court on January 3, 1992 continued the case generally, declared Sloan a fugitive and issued a capias for Sloan's arrest. Sloan did not appear before the trial court on January 10, 1992.
Upon these facts, the majority concludes that Sloan "was required under the conditions of his bond" to appear in the trial court on January 10, 1992. The evidence in the record, in my view, simply does not support that conclusion. The pertinent conditions of Sloan's bond required that he appear before the trial court on any day to which his case was "rescheduled" or "continued". The trial court's order of January 3, 1992, although entered in anticipation that Sloan willfully would not appear on January 10, 1992, nevertheless rescheduled and continued the case and, thus, no longer required Sloan in accordance with his bond to appear on that date.
Finally, I am unpersuaded by the fine distinction the majority draws between the challenge to the sufficiency of the evidence to support the conviction and an assertion that a fatal variance between the charge and the proof exists on the facts of this case. The determination that the evidence is insufficient is precisely what dictates that a particular variance is "fatal." See Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 651-52 (1984). See also Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986) (discussing the fatal variance rule). In my view, the distinction the majority draws on the facts of this case is one without significance. The Commonwealth did not prove that Sloan was required to appear before the trial court on January 10, 1992 because its evidence established that prior to that date the trial court continued the case to another date. Under such circumstances, there was no factual basis for Sloan's conviction.
For these reasons, I would reverse Sloan's conviction and dismiss the charge against him.
It is especially unfortunate that Judge Koontz took no part in the consideration of this case before this court, apparently for the reason that he was newly appointed to this court and wrote the dissenting opinion in the court below. In analogous decisions by the United States Supreme Court, the judges never disqualify themselves but sit and hear the appeal, precisely because that court is Supreme and sets the precedent for other cases.
It is also to be noted that Judge Gamble, the judge who sat on this case in the circuit court, who issued the capias for Sloan's arrest, who declared Sloan to be a fugitive from justice and so on, was in fact a private litigant whose law firm of Pendleton & Gamble had filed several cases against Sloan starting in 1986. One of those cases is still pending, mainly because no other Virginia judge can be found willing to hear that case. It is obvious that Judge Gamble was thereby disqualified from sitting on any case involving Sloan, yet Judge Gamble continues to do so until this day, even though he occasionally "disqualifies" himself when it is convenient to do so and comes back on the case again when it is convenient for him to do so. In addition, although Judge Gamble has on several occasions signed recusal orders recusing himself from cases involving Sloan, he still controls $47,000 belonging to Sloan and Sloan's mother, Dr. Helen Marjorie Sloan. So far, Judge Gamble has indicated no willingness to give up control of that money. On October 25, 1995, the same date as this court's decision, Judge Gamble wrote a letter to Sloan and other counsel stating that he has set the hearing on the custody of Sloan's daughter, Shamema Honzagool Sloan, for February 20, 1996 at 9:30 AM, even though a few months earlier Judge Gamble had again disqualified himself from that case.
The Commonwealth's Brief upon rehearing en banc before the Court of Appeals once again misstated the facts of this case. On page 2 it stated: "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. Since that date was in any event later canceled and the trial continued, the Commonwealth lacks any evidence to support its conviction.
More importantly, the majority 6-3 decision of the Court of Appeals misquotes Petitioner's handwritten letter. In a footnote on page 3 of its decision, the court quotes Petitioner's letter as saying "on January 10, the scheduled date for my trial." What my letter actually stated was, "on January 10 the scheduled (I believe) date for my trial."
The omission of the words "I believe" is vital, because the rest of the letter makes it clear that Petitioner had received Judge Gamble's letter dated December 30, 1991 (which was not shown to the jury) stating that Judge Gamble had scheduled Petitioner's motion that he recuse himself to be heard on January 14, 1992. Therefore, Petitioner's letter, in context, makes it clear that Petitioner knew that no trial would actually be held on January 10, 1992.
This appeal concerns the nine-year-long efforts of Charles and Shelby Roberts to seize and retain control of Petitioner's 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 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, "provided respondent Honzagool 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 went back 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 orders which were offered into evidence. It is established that a conviction for violation of 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 (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 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 judicial assignments, received one of the copies of this motion and 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, 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. 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 had no funds to travel to Virginia for a routine adjournment hearing 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:
" 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 the Court of Appeals apparently agreed, 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. 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 does not appear for the canceled date, a capias is issued for his arrest. 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 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. 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 because Mr. Hingeley refused to file this motion that Sloan was compelled to file this well grounded motion himself. Mr. Hingeley then 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.
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. On May 18, 1992, Sloan had filed a federal lawsuit 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 day before this indictment was to expire, he had Sloan indicted on the obviously false charge of failure to appear for trial on January 10, 1992. Sloan was 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. 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 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 and has never missed a court date. It was therefore necessary to make the false accusation that Sloan failed to appear for trial in order to obtain a conviction, which was necessary for Charles and Shelby Roberts to gain custody of this child.
The Court of Appeals stated 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 Mr. Bice has often stated that he did not want to be assigned to this case. The appointment of David B. Bice as court appointed counsel to represent petitioner was illegal and improper. 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, although just two days earlier Judge Gamble had signed an order (then unbeknownst to him) recusing himself from this case. Petitioner again objected and filed a notice appeal. Both appeals were dismissed on the ground that these were not final orders. It is readily apparent from the history of this case that Judge Gamble appointed Mr. Bice because he felt that Mr. Bice would not put up a good defense, whereas James Massie, who had represented petitioner since November 1990 and knew this case well, would have been successful in defending petitioner. Ever since Mr. Bice was appointed illegally by Judge Gamble, petitioner has asked that Mr. Bice be removed and another attorney be appointed. Mr. Massie has stated that had he continued as Petitioner's counsel, Petitioner would not have been found guilty. Mr. Massie has continued to represent the petitioner on other matters, including the custody of the subject child, Shamema Honzagool Sloan.
Petitioner gave his court appointed attorney a list of witnesses that he wanted subpoenaed to testify in his defense, including his daughter, Shamema. Defense counsel refused to subpoena any witnesses or even to interview the prospective witnesses. Petitioner has written innumerable letters to David B. Bice demanding that he raise numerous issues on appeal. Mr. Bice has refused to raise any issues that Petitioner demanded that he raise. The issue which Mr. Bice did raise is not on the long list of issues which Petitioner asked him to raise.
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."
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 AM before the Supreme Court of Virginia. 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 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 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).
Similarly, Petitioner was convicted on the basis of hearsay statements allegedly made by his daughter. According to the testifying witness, his daughter, Shamema, was heard to say: "That he's going to get us. That I know he's going to get us." (Transcript of 1/12/93, page 126). It is obvious from context that Shamema did not utter these exact words. 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).
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 named Rolf Beneke 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. 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. 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). Petitioner is aware of a Virginia rule that one cannot raise the grounds of inadequate representation of counsel on direct appeal. However, this rule should not cause an innocent man to be found guilty, especially where 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.
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 Petitioner of the trial continuance. In short, the three documents which prove that Petitioner is not guilty were documents which the jury never saw. More than that, in final jury summation, the Lynchburg Commonwealth Attorney told or at least strongly implied that these documents, which are annexed to this petition, did not even exist. Here is what the Commonwealth Attorney said (Transcript of 1/13/1993, pages 185 and 190):
"Where is Jim Hingeley, another attorney of Mr. Sloan's? Mr. Sloan said Mr. Hingeley told him that the case was continued. Where is he to tell us that today? Where is Jim Massie to tell us about the conversations that Mr. Massie had with Mr. Sloan involving the case.
Mr. Sloan said on September 6th he was to be at the Supreme Court in Richmond to argue a case. Certainly, he wouldn't want to leave the jurisdiction and not argue that case. Where is the calendar from the Supreme Court? Where is the Supreme Court order that denied his appeal because he didn't appear? Where is all of that? He hasn't shown us any of that. ......
Secondly, we get to failure to appear. You've heard from Mr. Petty about the scheduling aspect of it. You've heard from Mr. Sloan that he thought that it was continued. I ask you to think. Why was the case continued, if, in fact, it was? You don't see any continuance orders. But if the case was continued, why was it continued? Because Mr. Sloan had fled the jurisdiction and couldn't be prosecuted."
The answers to these questions, as the Assistant Commonwealth Attorney well knew but the jury could not have known, are that Petitioner was in jail and had been held in jail without bond for the previous five months. There was no way for him to go to his home and retrieve the continuance order and these other items of documentary evidence. The Commonwealth had all of these items but did not make them available. 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.
In addition, when the Assistant Commonwealth Attorney stated, "Certainly, he wouldn't want to leave the jurisdiction and not argue that case", she thereby proved that Petitioner was not guilty beyond reasonable doubt, because this court knows from its own records that Petitioner was, in fact, scheduled to argue his petition for appeal on September 6, 1991 before this Supreme Court of Virginia on the date after his arrest.
The fatal flaw in the majority opinion of the Court of Appeals 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." This is not true. No hearing took place on January 10, 1992. No judge was present. No attorneys 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 before the court of appeals. 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. This demonstrates that not only was Petitioner not required to appear but Petitioner knew that he was not required to appear. The 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.
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 an obligation to appear in the proceedings before that court, since it was personally served upon Petitioner, whereas Petitioner has never received a court process or summons regarding the case of his daughter in Virginia. Virginia has no jurisdiction 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. Shelby Roberts herself testified at trial that she had spent approximately $40,000 to have the child brought to Virginia. (Transcript of 1/12/93, page 108). To sentence Petitioner to prison on such a charge, when the Roberts are the guilty parties, makes this court an accomplice to the kidnapping of his daughter.
For all of the reasons set forth above, this petition for a rehearing should be granted and the conviction by the trial court should be reversed.
DATED: November 8, 1995 M. Ismail Sloan
CERTIFICATE OF SERVICE
This is to certify that on November 27, 1995 the undersigned served a true copy of the within petition for a rehearing 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