COMMONWEALTH OF VIRGINIA
M. ISMAIL SLOAN
Transcript of Proceedings
December 16, 1991
HONORABLE J. MICHAEL GAMBLE, JUDGE, PRESIDING
For the Commonwealth: Joseph M. Serkes
For the Defendant: James H. Massie, III
Attorney at Law
Seminole Shopping Center
Madison Heights, VA
Direct Examination by Mr. Serkes 10
Cross Examination by Mr. Massie 12
Direct Examination by Mr. Serkes 14
December 16, 1991 PROCEEDINGS
THE COURT: Judge Janow found him guilty of contempt on June 24, 1991, sentenced him to ten days in jail and a fine of $50.00 and the forfeiture of a $1,000.00 cash appearance bond.
Let's see here. All right, now, the attachment said that he was to be held in contempt for failure to appear in the J & D Court on October 8, 1986, at 1:30 p.m. and held in contempt for failure to obey the order of August 25, 1986, where the custody of Shamema Sloan was to remain in the status quo pending the final hearing for October the 8th.
All right, you say you are ready to proceed?
MR. SERKES: Judge, there was another matter that's also in that file. It appears that the order of the Juvenile Court was appealed to this Court, but then on November 16th of 1990, there was a hearing in this Court and on November 18th, two days later, Mr. Sloan was in New York.
His bond was reduced from $ l0,000.00 to $ l,000.00 and one of the conditions of the bond is that he remain within the jurisdiction. And two days later he was found to be in New York, and there is the facsimile from New York Police Department that is attached in the file.
So there are basically three points where there is an alleged violation of court orders and/or bonds, the last one being the one from November of 1990.
THE COURT: Yeah, I think though what Judge Janow did -- that bond was obviously reduced to $1,000.00 by Judge Goad in November of 1990, and then the J & D Court in this past June just ordered -- ordered the forfeiture of that bond, so I think he treated it as one thing.
I think the real issue is probably whether the custody of Shamema Sloan remains in the status quo pending the hearing set for October the 8th, 1986, which was a violation -- allegedly a violation of the October 25, '86 decree. I think that's really the issue here.
Are you ready to proceed, Mr. Massie?
MR. MASSIE: Your Honor, I had informed you earlier that my client had -- was unable to be here today. I have a voluminous array of information that he has sent to me by Federal Express explaining that he is in the jurisdiction of Alameda County, California, Oakland, California, in reference to another custody matter of his daughter, Jessica. 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 that he didn't have the funds to get back here. He felt that though he knew the seriousness of this offense and wants to defend himself, he felt like that he had to try to rescue that child from the same situation that ensued here.
So he's apparently in California. We've got another letter attached to his -- the public defender in Lynchburg telling about the situation. He hopes to be back by the 8th for that -- I believe it's the 8th for the hearing in Lynchburg. He's not here.
Of course, our position is the same as we argued in J & D Court was that the show cause is for failure to appear as the summons shows and that he was never given notice of the October 8th hearing.
If Your Honor feels that the actual gravamen of it was the status quo, then he's guilty. If Your Honor feels that the show cause is strictly read that he should have notice to appear on the 8th, I would argue he's not guilty, but --
THE COURT: Well I'm -going to go ahead and rule on it this morning and over your objection and we'll obviously put that in the record, but I mean we announced that this would be heard today back when we were trying the custody case. Then I wrote a letter a long time ago saying it would be today. He knows it's today based upon his representations and there is just -- and in fact he's in violation of his bond on the felony case in Lynchburg by being in the State of California. I mean he's -- he's not supposed to be there. He's supposed to be here. There's been no objection to the dates.
It's not your fault, so I'm just going to go ahead and proceed today with --
MR. MASSIE: Right. I don't have any problem with that.
THE COURT: -- the disposition of it, and I guess we can shorten the evidence some. So are you ready to proceed, Mr. Serkes?
MR. SERKES: As best I can, Your Honor.
THE COURT: Okay, all right. All right, who do you want to call as your witness? The 7309 is the appeal of the contempt. There is another contempt case that I'm not going to hear.
THE CLERK: Is that that one?
THE COURT: Yeah, that's in the thick file.
THE CLERK: Okay, the only one we're doing is 7309?
THE COURT: Yeah.
MR. SERKES: The Commonwealth would call J. Thompson Shrader, Your Honor.
THE COURT: Okay, Mr. Shrader, come forward and be sworn.
(NOTE: At this time the witness was sworn by the Clerk and the matter was continued as follows:)
J. THOMPSON SHRADER was called as a witness and having been duly sworn, was examined and testified upon his oath as follows:
BY MR. SERKES:
Q Mr. Shrader, you were appointed by the Juvenile Court back in 1986 as a guardian ad litem for the infant involved?
A Yes, I was.
Q And were you present at all the hearings that were scheduled in the Juvenile Court?
A I was present at a multitude of hearings. I can't say I was present at all hearings.
Q And do you recall a hearings,, that was held in August of 1986 whereby the matter was set to be reheard on October of 1986?
A Yes, I do remember that-
Q All right.
A -- in October of '86.
Q And was Mr. Sloan present?
A To the best of my recollection he was.
Q And was his counsel present?
A That I cannot remember.
Q Okay. And were you again present in Court on October 8th of 1986?
A I did show up in Court on October 8, 1986.
Q Was Mr. Sloan present?
A I do not think he was.
Q Was Mr. -- was his counsel present?
A I think his counsel was present, and I think at that time his counsel was Steve Martin.
Q At that particular time, do you have any knowledge of the whereabouts of Mr. Sloan?
A No, sir, I do not.
Q Did you later come to find out the whereabouts of Mr. Sloan for that period of 1986 through l990?
A Indirectly. I heard things in Court. I personally did not inquire on my own.
Q What did you know about his whereabouts for the period of 1986 through 1990?
A It was my understanding that he is -- he was out of the country, was not in the United States.
MR. SERKES: Answer any questions that Mr. Massie has.
BY MR. MASSIE:
Q Mr. Shrader do you know that there was a hearing in August 25th of 1986 and at that time Judge Janow entered an order wherein Sloan had an opportunity to visit with the child?
Q Are you familiar with that order?
A Yes, sir.
Q Was anything in that order that -- wherein he was served with any summons to be present on October 8th that you're aware of?
A I'm riot aware of anything directly where he was served with anything, no, sir.
Q All right. So you don't know whether he had actual service of the October the 8th?
A No, sir. I don't know whether the Sheriff actually served him or the Judge directed --
Q 'was there another date set the latter part of August?
A There was some -- there was some confusion as to whether another date was set, but I do know that I showed on, I think it was October 8, 1986, which was the day that I thought we were supposed -- all supposed to be in Amherst J & D Court.
Q· Well, was anyone else there? Do you recall?
A I think a gentleman -- an attorney by the name of Frank Davidson, younger Frank, Jr. or the III was present.
Q You can't -- do you have any knowledge of any motion to continue or any continuance that was granted by the Court?
A I don't have any direct knowledge, no, sir.
MR. MASSIE: All right. I don't have any other questions.
THE COURT: Well, you're a lawyer in the case. What did Mr. Sloan fail to do? What was it he failed to --
MR. SHRADER: He didn't show up for Court when everybody else thought they were supposed to be there, Judge. I was under the impression I was supposed to be there. The judge was there and Mr. Davidson I'm certain was there. I thought there was supposed to be a hearing that day.
THE COURT: What was that hearing concerning? What was it about?
MR. SHRADER: Ultimately returning the child to Mr. Sloan, or the possibility of returning the child to Mr. Sloan.
"THE- COURT: Okay, anything,, else?
MR. SERKES: nothing further of this witness, Your Honor.
THE COURT: Anything further, Mr. Massie? Okay, you can step down.
MR. SERKES: The Commonwealth would call Linda Groome.
(NOTE: At this time, the witness was sworn by the Clerk and the matter was continued as follows:)
LINDA GROOME was called as a witness and having been duly sworn, was examined and testified upon her oath as follows:
BY MR. SERKES:
Q Ms. Groome, you are an attorney at law?
A Yes, sir.
Q All right, and you presently represent Mr. and Mrs. Roberts, who have filed a petition for custody of Mr. Sloan's child?
A Yes, sir.
Q All right, when did you become involved with representing Mr. and Mrs. Roberts?
A I believe it was in late 1989 when the child returned to Virginia.
Q Okay, and were you present in Court in either this Court or in the Amherst Juvenile Court in any hearings concerning the petition to have Mr. and Mrs. Roberts given or -- have them given custody of this child?
A Yes, sir.
Q Do you have -- were you present when Mr. Sloan made any statements as to his whereabouts from 1986 to 1989?
A Yes, sir, I've been in Court in every time there has been a court hearing involving Mr. Sloan since that earlier day of 1989. On various occasions, including the last hearings, which was in September of this year, Mr. Sloan has admitted numerous times that on that particular court date in l986 he had taken the child through various foreign countries and finally settled in the United Arab Emirates and that he was not in the country at the time of that hearing or at least was trying to get out of the country.
THE COURT: Well who had legal custody of the child when he -- when he left?
THE WITNESS: When he left with the child, I believe it was joint custody between he and Mr. and Mrs. Roberts.
BY MR. SERKES: (continuing)
Q And wasn't there a -- an order that was to be entered at a later date that Mr. Sloan was to be given physical custody?
A Yes, there was.
Q And that date was subsequent to the October 8th date I believe?
A If he had appeared in Court he was to have been given physical custody with visitation to the Roberts. His testimony was that he did not want to abide by that, he could not let that happen and that's why he left.
MR. SERKES: Answer any questions Mr. Massie has.
MR. MASSIE: I don't have any questions.
THE COURT: All right. Okay, you can
step down. Anything further?
MR. SERKES: No, Your honor. The Commonwealth would submit the record that's already in the case file.
THE COURT: Mr. Massie, do you want to say anything?
MR. MASSIE: Well, just as I said before, Your Honor, I think the gravamen of the offense from the initial warrant that was filed in 1986, is the show cause for failure to appear. I think the record shows, as well-as I recall, when this matter, I first became involved, Judge Goad reviewed the file, but he reduced the bond from $10,000.00 down to $1,000.00.
I don't think it shows anywhere in here where he was served with notice or where his attorney (inaudible) he was given notice of an October the 8th hearing.
He had joint custody of the child and, of course, I don't think initially that was the gravamen of the show cause. There was no where in it it recites that he violated the -- any prohibition of status quo.
So I would argue that since there was a -- either the show cause strictly is failure to appear does not say beyond a reasonable doubt that he was given actual legal notice or summons to be present.
I recall -- well, I can't testify to what he said, but I mean, I -- what, of course, the case is or anything. I don't think there is an actual showing of service or an actual showing that he was admonished to be present by his counsel or the Court.
THE COURT: All right, anything further?
MR. MASSIF.: No, sir.
THE COURT: All right, well, I'm going to find him guilty of contempt, disobeying the order of the Juvenile & Domestic Relations Court dated August 25, 1986, which instructed him to keep the status quo with reference to Shamema Sloan. I'm going to sentence him to ten days in jail. I'm going to give him the same punishment as the J & D Court, ten days in jail, fine of $50.00 and his bond, $1,000.00 cash bond will be forfeited to the Commonwealth.
MR. MASSIE: All right. Your Honor, I-
THE COURT: At -- well, I'm going to get to that.
MR. MASSIE: Yes, sir.
THE COURT: Okay. I'm going to direct that a capias be issued for his arrest because he wasn't here. And in the order, Mr. Mayo, and this is in file 7309 -- in the order; Mr. Massie is relieved of any further representation of Mr. Sloan in either file 7309 or 7312.
MR. MASSIE: I would like to file on his behalf the letters and things that he had --
THE COURT: Yeah, I think we need to do that. Now, Mr. Mayo you're going to have to issue a separate capias. In file 7312 on a separate contempt matter arising out of an incident on September 5, 1991, he was show caused to appear here today at 9:30. He didn't do so; so, therefore, you'll have to issue a capias for his arrest based upon the show cause notice in file 7312. That will have to be a separate document.
MR. SHRADER: -May I -- is that the matter that was set for this afternoon at 2:00?
THE COURT: No, that's -- it's set for 9:30 on the show cause notice.
MR. SHRADER: After we finish with those, I'd like to ask the Court a question about this afternoon.
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 hadn't appeared, so I've got to issue that.
Now, there's nothing this afternoon that I know of, is there?
MS. GROOME: Your Honor maybe I can clear it up. Originally when we were in Court with Ms. Schenkel and everyone we had set it at 2:00. Then your letter came later setting it at 9:30. I think Mr. Shrader was not advised of that --
MR. SHRADER: So I don't need to be here at 2:00?
THE COURT: 'That's -- no, you don't need to be here. In fact, the appeal period is over so, you know, your service as guardian ad litem is terminated as of today, too. You can put that in the order.
MR. SHRADER: I'd appreciate your cutting that in there if you would.
THE COURT: So we're quickly bringing these to an end. Thank you, Mr. Massie.
END OF PROCEEDINGS
I, Linda A. Powers, court reporter duly sworn by the court to perform my duties faithfully and impartially, do certify that the foregoing was electronically recorded and transcribed by me to the best of my ability and is a true and accurate record of the testimony and other incidents of the hearing herein.
Given under my hand this 21st day of September, 1993.
Linda A. Powers