Note: this is the text of the transcript except in cases where I insert red text in and one video that was showing in court in partial form (presented here in full form).
Updated August 13, 2017: Added missing swearing in data (in red) that was redacted by the court in the transcript.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff ,
CR NO. 17-531
v.
HEATHER ANN TUCCI-JARRAF ,
Defendant .
TRANSCRIPT OF REMOVAL HEARING
BEFORE THE HONORABLE DEBORAH A. ROBINSON
UNITED STATES DISTRICT MAGISTRATE JUDGE
Friday , August 4 , 2017
APPEARANCES:
For the Plaintiff : Lisa N. Walters , Esq .
U. S . ATTORNEY' S OFFICE
Violent Crimes Narcotics and
Trafficking (VCNT)
555 Fourth Street , NW
Washington , DC 20530
For the Defendant : David Walker Bos , Esq .
FEDERAL PUBLIC DEFENDER FOR THE
DISTRICT OF COLUMBIA
625 Indiana Avenue , NW
Suite 550
Washington , DC 20004
Proceedings recorded by FTR Gold , transcript produced by computer-aided transcription .
BARBARA DE VICO , FOCR, CRR, RMR
(20 2) 354-3118 Room 6509
P R O C E E D I N G S
DEPUTY CLERK : This is Criminal Case 17-531 ,
United States of America v . Heather Ann Tucci -Jarraf .
Lisa Walters for the government , David Bos for the
.defendant . Pretrial officer is Andre Sidbury .
This is an identity hearing on a removal .
MR. BOS: Good morning , Your Honor .
THE COURT: Good morning . Is everyone ready
to proceed?
MS. WALTERS: Yes , Your Honor .
MR. BOS : Your Honor , I do have some representations to make before we get started ,
Your Honor .
THE COURT: Let me ask you to come to the podium , please . I can hear you , but we have a more
accurate record when counsel speaks from the podium. Thank you .
MR. BOS : Thank you , Your Honor . Your Honor , as the Court may recall , the last time we were here informed the Court that Ms. Tucci would be seeking to represent herself in this matter. Since that time I’ve had a chance to meet with Ms. Tucci. It is my understanding that she does still want to go forward with representing herself in this matter . We had discussed the Faretta case and the inquiry that understand the Court would probably be asking Ms.Tucci, and she’s prepared for that inquiry at this time.
THE COURT: Thank you, Mr. Bos. Mr. Bos, while you ' re at the podium , may I ask you to please articulate your view regarding the nature of the inquiry that the Court must undertake.
MR. BOS: Your Honor, it's my understanding what the Court needs to make is a finding that her waiver of counsel is knowing and voluntary; that she's been advised of the dangers of proceeding prose and that she has, I believe the word in Faretta that's used is that she's literate enough to understand the nature of the proceedings . It's quite clear to me that she’s going to meet all those requirements should the Court inquire about
THE COURT: May I ask you, please, for your proffer with respect to what you advised Ms.Tucci-Jarraf of the dangers or perils of representing herself . You've indicated that you did advise her, but are you able to be more specific, please, without intruding upon privileged matters.
MR. BOS : Yes, Your Honor. I explained to her that obviously any statements that she were to use during the nature of this identity proceeding could, in fact, be used against her in the criminal proceeding that's pending in the state of Tennessee . It also could result in her continued incarceration during the pendency of any continuance of the identification hearing in this case. And that the fact that she is not, although she is a trained attorney, she has not practiced in this courthouse ever before . I think she has a pretty good understanding of the legal system, although she is not obviously a member of the bar of D.C. or in the federal circuit.
THE COURT: What is your proffer with respect to the guidance you provided , the assistance you
provided Ms. Tucci-Jarraf regarding the parameters of today's hearing?
MR. BOS : Your Honor
THE COURT: In other words, that the sole purpose of today's hearing is for the Court to make a determination with regard to whether or not she is the person who is the subject of the arrest warrant and the indictment and perhaps to follow up , that in making such finding the Court cannot entertain any discussion from either the government or of Ms. Tucci-Jarraf regarding the merits? What did you advise Ms. Tucci-Jarraf regarding those matters?
MR. BOS : Your Honor, for the record I explained to Ms. Tucci that we would not be able to discuss the merits of the case about whether or not the strength of the government's case concerning the case in Tennessee, whether or not she has any viable defenses at this point , that the only issue for the Court to decide is whether or not she's the entity or individual that the District of Tennessee is seeking and that we would not be able to introduce evidence on any other issue except for the identification issue.
THE COURT: What is your proffer with respect to whether Ms. Tucci-Jarraf acknowledged your statement regarding the advice?
MR. BOS : She did acknowledge my advice, Your Honor.
THE COURT: --or assistance regarding the purpose of today's hearing?
MR. BOS : Yes, she understands that this is an identity hearing today and that this is not a trial on
the merits or any pretrial motions in connection with the charges that are pending now in the District of Tennessee .
THE COURT: Should the Court grant Ms. Tucci-Jarraf's request or more properly , should the Court accept her waiver of counsel, what will your role be? In other words, will you serve as stand-by counsel, or will it be your request to be permitted to withdraw?
MR. BOS: Your Honor , I think that that's a decision that would be best left for Ms. Tucci to make: I am certainly an officer of the Court , and I've been initially assigned to the case by the Court . I am here today. I can be here for the hearing today. If it turns out that she --well, let me back up.
I've explained to her that she certainly has every right t o represent herself in this case , but the
Court certainly has the right and the authority to appoint stand-by counsel.
Now, whether or not one, she accepts that stand-by counsel and two, whether or not she wants to
have stand-by counsel to be me , I don ' t think given my conversations with her that I can tell you what , what my position is . My position is what my client wants me to do. So if it turns out that the Court wants to appoint stand-by counsel but my client wants someone other than me, then I would ask the Court to appoint new counsel for, or new stand -by counsel for Ms. Tucci.
If it turns out that Ms. Tucci is satisfied with me as stand-by counsel, I'm ready , willing and able
to serve in that capacity.
THE COURT: Very well. That was the Court's next question. Are you prepared to serve as stand-by counsel.
MR. BOS: Yes, if that is my client's wish. THE COURT: With all the qualifications that
you just articulated.
MR. BOS : Yes, Your Honor. THE COURT: Very well. Thank you very much, Mr. Bos.
Ms. Walters.
MS. WALTERS: Good morning , thank you, Your Honor. Your Honor, the government concurs with the defense counsel's request for an inquiry and specifically the specific parameters of what the Court should inquire. And once the Court makes a decision, the government is prepared to turn over Jencks as discussed at the last hearing.
THE COURT: And are you speaking of Jencks with respect to the witness who will be the first
witness you call?
MS. WALTERS: That's correct, Your Honor. And also the government exhibits for the identity hearing today.
THE COURT: Very well. Thank you very much, Ms. Walters. Bear with me, please, while I confer with the deputy clerk . (Discussion held off the record .)
[GREY NOISE FILLS THE COURTROOM WHILE SHE SPEAKS INTO AN INTERCOM]
THE COURT: It appears that there is no form utilized by this Court for the inquiry of the sort that
the parties contemplate . We will take a very brief recess while the Court determines the full extent of
what must be memorialized in order to determine that Ms . Tucci-Jarraf's waiver of her right to counsel is a knowing and voluntary waiver and satisfies the constitutional requirements.
MR. BOS : That's fine, Your Honor. I have just one scheduling issue. Would it be possible, I have a 10:30 status before Judge Moss that should take no more than five minutes just to set a new date. So perhaps if we can reconvene in say half an hour, that would at least allow me to not hold back from Judge Moss on a relatively short matter.
THE COURT: Thank you very much, Mr. Bos.
Ms. Walters, do you have other commitments this morning?
MS. WALTERS: Other than the 11:00 before Your Honor here, no, Your Honor .
THE COURT: Very well . Thank you very much. We will resume no later than 30 minutes from now. Mr. Bos, if you believe your matter will be completed, your matter before Judge Moss will be completed prior to that, please return, please, and reach out to Ms . Walters .
MR. BOS: Your Honor, I'll go up there right now. If we can get called more quickly, I'll get back
sooner.
THE COURT: Very well. And perhaps the deputy clerk here can assist by making a call to her
counterpart upstairs.
MR. BOS: That's fine, Your Honor .
THE COURT: Very well. Thank you. In the meantime, Ms. Tucci -Jarraf, please return with the
marshal.
(Recess taken)
DEPUTY CLERK: Okay. Re-calling criminal case year 2017-531-M. United States versus Heather Ann
Tucci-Jarraf.
THE COURT: Thank you. Is there anything further, Mr. Bos, before the Court proceeds?
MR. BOS: No, Your Honor .
THE COURT: Ms. Walters?
MS. WALTERS: No, Your Honor.
THE COURT: Very well. The Court during the recess had an opportunity to review Faretta v. California , 422 United States 806 and Mccaskey v . Wiggins, 465 U. S . 168. Having done so, we will proceed with a determination with respect to the extent to which Ms. Tucci-Jarraf's waiver of counsel as described by you, Mr. Bos , is knowing and voluntary.
As a preliminary matter, I will ask whether you wish to be heard, Mr. Bos, or you, Ms. Walters,
concerning whether you, Ms. Walters, may wish to excuse yourself during any portion of this inquiry if it is the case, Mr. Bos, that you have a concern that privileged information may inadvertently be elicited.
MR. BOS: I do not, Your Honor.
THE COURT: You do not have such request? You do not
MR. BOS: We do not believe that privileged information will be revealed at this point. I don't have a request for the government to step outside.
THE COURT: Can we agree then that if it appears that that is likely to occur, you will somehow
alert us and you , Ms . Walters , will then excuse yourself?
MS. WALTERS: Yes, Your Honor.
THE COURT: Can we agree on that protocol?
MR. BOS: Certainly, Your Honor.
THE COURT: Very well.
Now, Ms. Tucci-Jarraf, I will ask you and Mr. Bos to come to the podium, please.
Now, Ms. Tucci-Jarraf, I will ask you to please face the Deputy Clerk of Court to be sworn , and
then we'll proceed.
(Defendant sworn)
What follows in red is missing text in the transcript of the swearing in (see subsequent blog post for context of its importance)
Deputy Clerk: Do you swear to tell the truth, the whole truth, and nothing but the truth?
Heather Ann Tucci-Jarraf: By due sworn declaration. . .
(pause)
Heather Ann Tucci-Jarraf: Can I have a second?
The Court: Sure.
Heather Ann Tucci-Jarraf: OK.
The Court: OK that’s it.
Heather Ann Tucci-Jarraf: No. May I proceed?
The Court: We still see you did it.
Heather Ann Tucci-Jarraf: No, No. Standing due identification correction. I am source of all that is. Original. Nunc pro tunc, praetera, preterea and I do swear to speak only true, accurate, and complete.
[Begin of Court's Truncated Version]
THE DEFENDANT: Withstanding identification correction of being the source of all that is, I swear to state the truth .
[End of Court Version]
THE COURT: Thank you. Now, good morning. You have heard Mr. Bos' representations regarding your request. I will hear directly from you at this time.
THE DEFENDANT: Thank you, ma'am.
THE COURT: Of course.
THE DEFENDANT: To be able to answer any questions that you may have, I just wanted to confirm
because I have no ability to confirm whether this, the notice of filing, I just wanted to confirm with
Your Honor that it is on the record, that Mr. Bos has made.
THE COURT: It is.
THE DEFENDANT: Okay. I may proceed, please. Ask your questions.
THE COURT: Very well . Mr . Bos stated in your presence that it is your request that you represent
yourself. I need to hear that from you, however .
THE DEFENDANT: Mr. Bos has gone over explicitly with me regarding being represented by an attorney, being represented on behalf of myself as pro se , and I went over the circum , which was representing and presenting as self pro per. It is my choice here today to go forward as self pro per.
THE COURT: Do you have an understanding that you have a right to appointed counsel if you are unable to retain counsel?
THE DEFENDANT: I'm aware that based on the notice which was a, it was a complimentary repeat notice from four and-a-half years ago that this entire case, the entire representation in this Court, that there is no authority for this particular action, nor the underlying action from Tennessee.
As far as the identification, I am here to go ahead and move forward with that identification, again,
with the restatement that there is no authority for these proceedings or for the identification hearing.
THE COURT: Did Mr. Bos explain to you that all I can do during the course of this hearing is make a
decision about whether you are the person named in the arrest warrant and the indictment?
THE DEFENDANT: Again, Mr. Bos did explain the process, the limits and parameters that you had
expressed to him as well as into the Court the last time we were on record. Again , I state that based on these perfected filings that have been provided to the Court, there is no authority for this Court or for you, ma'am, to proceed forward with any identification hearing inclusive of the underlying cause of action which resulted in us all being here.
THE COURT: Whose decision is it for you to represent yourself?
THE DEFENDANT: My decision to present and represent self is solely my decision. It is my sole authority and my sole determination.
THE COURT: Has anyone forced you to make such a decision?
THE DEFENDANT: I'm not sure where that question is corning from. There's no facts or data entered into any record that I would be forced to move forward as myself. As I stated, these filings here, if you had read them you would see clearly that I am competent and conscious to make these decisions, these determinations and that there is a solid proof of record of my competency to move forward and represent and present solely as self pro per.
THE COURT: Did Mr. Bos speak with you concerning the perils that an individual faces by electing to represent herself or himself?
THE DEFENDANT: Ma'am, my full responsibility, accountability and liability, I am completely aware of the perils of moving forward with a licensed attorney in such a matter. I'm also aware of the ramifications and the consequences of all involved in this process when there is no authority to actually hold these hearings. I'm very conscious and aware of my own responsibility and accountability and liability for every word, thought and action that I take.
THE COURT: Do you need more time to talk to Mr. Bos about your decision to represent yourself?
THE DEFENDANT: I believe that Mr. Bos and I have thoroughly exhausted all conversation as to our ideologies, where they do not match and where we different that different applications of law are
applicable in this matter. And again, again, the fact that there is documentation that' s applied to the Court that there is no authority for them to even hold this hearing, let alone hold me in custody and detention without bail and bond or appearing to hold me at all or to have this matter before the Court, as is the Tennessee matter, the underlying one that Mr. Parker Still has instigated and brought before this D.C. Court.
So I'm very aware of this. I do not need any more time to be able to speak through the things, we're
just repeating ourselves at this point. So I am very aware, I ' m conscious and competent to make any
declaration and every decision that I am presenting and representing to you as myself.
THE COURT: Mr. Bos referred in passing during his comments to issues having to do with literacy. May I ask you to please state for the record your educational level.
THE DEFENDANT: I have a JD from Gonzaga School of Law. That is the highest level of degree. I also have a BA in accounting and finance , and my JD emphasis was in litigation, real estate --excuse me, estate planning and trials.
THE COURT: Very well. Thank you. Are there other inquiries that either of you propose in order for
the Court to make a determination consistent with Faretta? Mr. Bos?
MR. BOS : No, Your Honor.
THE COURT: Ms. Walters?
MS. WALTERS: No, Your Honor.
THE COURT: Very well. Thank you very much.
Ms. Tucci-Jarraf, thank you, you may be seated.
The Court finds based upon Ms. Tucci-Jarraf's responses to the Court's questions and her narrative statements that her waiver of counsel is knowing and voluntary and otherwise conforms to the requirements of Faretta, and accordingly the Court will note in the record or will include a finding in the record to that effect. The Court will appoint you, Mr. Bos, to serve as stand-by counsel. Do you wish to be heard, Mr. Bos?
MR. BOS : May we approach the podium, Your Honor? I believe that now that Court has found that Ms. Tucci is competent to represent herself. She would like to lodge an objection.
THE COURT: Very well . I will hear your objection.
THE DEFENDANT: Thank you, Your Honor. Again as I restate , this Court does not have the authority to even hold this identification hearing, let alone I'd like to clarify and correct the record that I'm not waiving any rights, that I'm stating that there's no authority to even ask me to waive any rights.
As far as Mr. Bos being stand-in, I need no other assistance in presenting or representing as
myself.
THE COURT: Very well. Thank you, you may have a seat.
THE DEFENDANT: Thank you.
THE COURT: Perhaps our record has changed. The finding that the Court just articulated was that
Ms. Tucci-Jarraf waives counsel. Ms. Tucci-Jarraf has now indicated that she does not waive any right and that being the case, I believe we must proceed with you, Mr. Bos, as counsel and not stand -by counsel.
Had there been an objection to your role, Mr. Bos, as stand-by counsel, the Court, as I indicated
at the outset reviewed during our recess Mccaskey v. Wiggins , 465 U. S . 168 , and notes that at page 184 the Supreme Court held that "A defendant's Sixth Amendment rights are not violated when a trial judge appoints stand-by counsel, even over the defendant's objection to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of her own clearly indicated goals."
So had there been an objection to your role as stand-by counsel , Mr . Bos , the Court would have appointed you to serve in that capacity over objection based upon the authority set forth by the Supreme Court in the McCaskey opinion.
However, having now heard that Ms. Tucci-Jarraf does not waive any rights, we must proceed. Ms. Walters, you have just one witness? Is that correct?
MS. WALTERS: That's correct, Your Honor. And just to clarify , the government will produce Jencks and exhibits for the identity hearing.
THE COURT: Can you do that now, please.
MS. WALTERS: Just to be clear, I'm providing them to Mr. Bos.
THE COURT: Thank you. And you may call your --Mr. Bos -
MR. BOS : Your Honor , Ms . Tucci-Jarraf tells me that she ' s not objecting to the appointment of
stand-by counsel. She's objecting to me as stand-by counsel.
THE COURT: Well, the Court knows of nothing we can do at this point other than to proceed. That is
an imprecise way perhaps , and I will endeavor to be more precise, of stating our status. The Court understood the request made by Ms . Tucci-Jarraf to be one to waive her right to counsel, and it was for that reason that during the recess the Court reviewed Faretta and Mccaskey and heard from Ms. Tucci -Jarraf on the record concerning the waiver.
Ms. Tucci-Jarraf has now stated that she does not waive any right. That being the case, I have no
basis to relieve you of your appointment or to appoint you to serve as stand-by counsel, since an appointment as stand-by counsel would be operative only if an individual were representing herself.
Because the broader objection appears to be one to this Court's determination to proceed with an identity hearing , I believe the record is clear with respect to why we are proceeding with the identity hearing. That is what the Federal Rules of Criminal Procedure provide in a circumstance in which an individual is arrested in this district based upon a charge pending in another district. So the Court has no alternative.
To the extent that Ms. Gucci-Jarraf’s objection is also to her continued detention, I have no means to address that either other than by continuing with the identity hearing. Indeed, it may be the case
that the government is unable to carry its burden to prove that Ms. Tucci-Jarraf is the individual named, in which case the Court would have no alternative other than to release Ms. Tucci-Jarraf. But I cannot get to that point if we do not have the hearing. So we must proceed.
MR. BOS : Your Honor -
THE COURT: The Court also noted that at the time the request was made to continue the hearing from Monday until today, the Court expressed a concern regarding Ms. Tucci-Jarraf's continued detention and pointed out that Monday was the third day. We are now four days removed from that, and I know of no way to ensure that Ms. Tucci-Jarraf's rights are protected, that the Court proceeds with the identity hearing in an orderly process, and that we comply with the applicable rules other than to begin.
MR. BOS : Your Honor, I understand that.
THE COURT: The record will reflect that we are proceeding over Ms. Tucci-Jarraf's objection.
MR. BOS : Your Honor, I'd just like to have just 30 seconds so I can see whether or not she might
want to withdraw that objection. It's my understanding that Ms. Tucci would like to represent herself in this matter.
THE COURT: That is not what Ms. Tucci-Jarraf said. I do not question at all your proffer with regard
to the discussion that you had, but Ms. Tucci-Jarraf had said that she didn't waive any rights at all. So we must proceed.
MR. BOS : Well, but she may change her mind if she realizes the consequences of that decision.
THE COURT: That would raise another question concerning the extent to which the waiver represents an understanding of what we are doing here . And that word comes directly from Faretta. So we must proceed.
Ms. Walters has given you the Jencks material. The witness is ready to testify, and we will proceed.
The Court will also note that in the context of an identity hearing, the Court cannot envision any
prejudice to Ms. Tucci-Jarraf by proceeding in this fashion.
MR. BOS : Your Honor , I guess our concern would be that she has an absolute constitutional right
to represent herself , and if she has inadvertently caused the Court to have some concerns about that
constitutional right , she should be allowed to clarify that. I don't know what her answer would be, whether or not, given what the Court has just said, she wants to withdraw her -
THE COURT: I must be bound by the last thing Ms. Tucci-Jarraf said, which is, "I do not waive any
rights." So you may have a seat and we will proceed.
MR. BOS : Very well, Your Honor.
THE COURT: You may call your witness.
MS. WALTERS: Your Honor , may the government just have a brief minute to provide some Giglio information to Mr . Bos as well?
THE COURT: Yes , of course .
MR. BOS: Your Honor, we are making a standing objection to my appointment.
THE COURT: Very well .
MR. BOS : Your Honor, Ms. Tucci has informed me that she does not want me representing her so filing or not filing, I'm moving to withdraw as counsel for Ms. Tucci.
THE COURT: Mr. Bos, is it your understanding that other counsel is entering an appearance?
MR. BOS: Your Honor, I'm not aware of any other counsel that would be entering their appearance.
So therefore, I would ask the Court to appoint new counsel for Ms. Tucci.
THE COURT: Very well . We will take a brief recess. Ms. Tucci-Jarraf, please return with the
marshal . Actually , you may take your seats while the Court takes another matter.
(Recess taken)
THE COURT: Mr. Bos , in accordance with local Rule 44 . 4 subsection (d) , the Court will deny the
motion, finding that the motion would unduly delay the proceedings and otherwise not be in the interest of justice.
Now, Ms . Walters, you may call your witness.
MR. BOS: Your Honor, may I just be heard on that briefly?
THE COURT: Mr . Bos , I believe I have little alternative other than to permit you to be heard. But
the Court has already articulated the reasons --perhaps I should indicate I am incorporating other reasons already set forth on the record as the basis of my determination that granting your request would be unfairly --I apologize --would not be in the interest of justice and would unduly delay the proceedings .
MR. BOS : Yo ur Honor , it's my understanding Ms. Tucci is not seeking a delay in the proceedings.
And during the intervening break I had a chance to speak with Ms. Tucci , and she explained to me that she was unclear of the Court's question, and if she were asked again today or right now if she is willing to waive her right to counsel with the understanding that the Court received a notice of filing, she is willing to waive her right to counsel.
THE COURT: Well , we are going to proceed, Mr. Bos, because the indication that we now have that
within the space of a matter of minutes there has been two changes of contention on that issue raises an issue of the extent to which the Court can make the Faretta findings.
In other words , to be specific , your proffer was that Ms. Tucci-Jarraf's request was to waive her
right to counsel. Ms. Tucci-Jarraf stated when I first inquired of her at the end of her narrative that she did not waive any right at all , including her right to be here , to have me proceed with the identity hearing or her continued detention , to name a few.
The next matter was that you then moved to withdraw . Now it appears that there is a request to waive counsel . This all undermines the finding that the Court must make consistent with Faretta that --perhaps I should say with respect to Ms. Tucci-Jarraf's understanding of what we are doing here and the issue regarding, for example, voluntariness. I know of no prejudice which would arise to Ms. Tucci-Jarraf from denying both your motion for leave to withdraw and from not undertaking any further inquiry consistent with Faretta . And I believe that is clear based upon all that the Court has found thus far, including the nature of this proceeding and the further delay which would be occasioned by granting your motion, undertaking a further inquiry or doing anything other than proceeding.
MR. BOS : Your Honor -
THE COURT: The record reflects that the Court has already expressed a concern that the hearing should have been conducted on no later than the third day, which was Monday . Counsel for the government was ready to proceed on Monday . The Court was prepared to proceed on Monday. It was with great reluctance that the Court granted the request to continue the matter until today.
We are all ready to proceed at this time . The witness is here, the Jencks material has been provided. The Giglio material has been provided. The exhibits have been provided. And we must proceed.
MR. BOS : Your Honor, the question is not whether or not we proceed today. The question is whether or not Ms. Tucci can exercise her constitutional right to represent herself in this matter. This is exactly what happened in Faretta where the Court over the defendant's objection required the defendant to accept a Court-appointed counsel .
THE COURT: Was Faretta a trial, Mr. Bos?
MR. BOS : It was a trial, Your Honor.
THE COURT: Very well. This is an identity hearing; any issues regarding Ms. Tucci-Jarraf's representation of herself with regard to the merits should the Court make a finding that would lead to a commitment to the requesting district can be addressed by the requesting district . As you have noted, this is not the trial . The Court reads Faretta to stand for the proposition that there is an entirely --there is a heightened concern regarding that issue with respect to a trial.
And as I indicated for reasons including Ms. Tucci-Jarraf's response to the Court's inquiry, the
Court must now question whether the finding --the Court made the finding at the time, I'm speaking of events that have transpired since then, the Court must take those issues into account in determining whether any statement at this time that she waives her rights is one as to which the Court could make the requisite finding. So we must go forward. Your objection is noted. Ms. Tucci-Jarraf's objection is noted.
MR. BOS: Your Honor, and our position further is that a defendant at any time can elect to proceed to
represent themselves.
THE COURT: That may be the case. That does not mean that the Court can make the finding, that the
Court can ignore all of what has occurred in the courtroom and make a finding regarding an individual's understanding of the proceeding , which to some extent the Court must now question in view of what has happened since I heard from Ms. Tucci-Jarraf.
So we must proceed.
MR. BOS: For the record, Your Honor, we would ask the Court to take five minutes to do an inquiry of Ms . Tucci-Jarraf since she decided to change her position that she stated about 45 minutes ago and
whether or not she would like to proceed.
THE COURT: The Court cannot do so.
MR. BOS: Very well, Your Honor.
THE COURT: Now, Ms. Walters, you may call your witness.
MS. WALTERS: Thank you, Your Honor.
Your Honor, at this point the government would seek to admit and publish to the Court a certified copy of the indictment in this matter and also a copy of the arrest warrant as Government Exhibits 1 --actually as jointly government Exhibit 1 for the purpose of the identity hearing. And these documents have been provided to Mr. Bos.
MR. BOS: Objection , Your Honor.
THE COURT: On what grounds? All of the grounds previously noted?
MR. BOS: Yes, Your Honor.
THE COURT: Very well. The exhibits --may ask you to hand the Court's copy to the deputy clerk ,
please.
MS. WALTERS: Yes, Your Honor. And at this time, Your Honor, the government calls Special Agent
Parker Steill to the stand.
THE COURT: For the record, Government Exhibit 1 and Government Exhibit 2 will be admitted over objection. The Court notes that the exhibits are identical to the ones , except that they bear the exhibit sticker and the certification seal that are filed in the record.
MS. WALTERS: Just for the record, Your Honor, they are jointly Government Exhibit 1 .
THE COURT: I apologize.
MS. WALTERS: Thank you, Your Honor .
(Government ' s Exhibit Number 1 admitted
into evidence.)
MR. BOS : Your Honor.
THE COURT: Mr. Bos .
MR. BOS : I'm making a standing objection to the introduction of any evidence in connection with
THE COURT: The Court is aware that there is a standing objection. I believe that was, that should be
clear for the record . Very well, thank you.
***********************
PARKER STEILL,
Having been called as a witness on behalf of the
Government and having been first duly sworn by the
Deputy Clerk , was examined and testified as follows:
DIRECT EXAMINATION
BY MS. WALTERS:
Q. Good morning.
A. Good morning, ma'am.
Q. Please state your name and spell it for the record.
A . Parker Steill . First name P-a-r-k-e -r , last name S-t-e-i-1-1.
[Note: Parker spells his name with an added "E" in this testimony which differs from how he specifically spells in the Tennessee Grand Jury Testimony as S-T-I-L-L ]
Q . And where are you employed?
A . Currently employed by the Federal Bureau of Investigation, Knoxville division.
Q. And how long have you been employed with the FBI's Knoxville office?
A. Approximately five years.
Q. And what, if any, specializations do you have?
A. Currently worked and have worked since I started in Knoxville on the white-collar crimes squad.
Q. And where were you employed before your employment with the FBI in Knoxville?
A. Yes, ma'am. Before the FBI in Knoxville I was, I was a practicing attorney for approximately
seven and a half years . During that time I did both prosecution and defense work. Also served as a short time as a pro tern municipal court judge as well as I have a, I'm a graduate of the JAG school, served overseas in Afghanistan as part of Operation Enduring Freedom as chief legal assistant in Kandahar Airfield.
Q. Did there come a time when you investigated a wire fraud and money laundering conspiracy that occurred during the early year part of July of 2017 in the state of Tennessee?
A. Yes, ma'am, I did.
Q. Can you explain to us what your role was in that investigation?
A. Yes, ma'am, I'm happy to. So we received information from USAA about a fraud that had occurred. And my role in that investigation was one of the investigators who looked into it and did interviews and we ultimately made an arrest of Mr. Randall K. Bean, a codefendant in this matter.
Q. And so you developed suspects in that particular matter?
A. Yes , ma'am, we did .
Q. And can you tell us specifically who were developed as suspects in that particular matter?
A. Yes, ma'am . Initially we developed Mr . Randall Bean as a suspect in that matter. Later we
also developed Ms. Heather Ann Tucci-Jarraf as a subject in that matter.
Q. And can you tell us specifically how you developed Heather Ann Tucci-Jarraf as a suspect in that
matter?
A. Yes , ma'am. We had made an arrest of Mr. Randall Bean, and at the scene there were two other
individuals, and they gave me a piece of paper with the phone number and a name Heather on it.
Subsequent to the arrest , we obtained video and audio evidence that indicated Ms. Tucci-Jarraf had a
role in this matter, including evidence showing that she was involved in a call to a RV dealership and a subsequent video and audio evidence where she identifies the scheme online.
Q. And in those particular videos, can you actually see the defendant, Heather Ann Tucci-Jarraf?
A. In one of the two I'm referencing, yes, ma’am, I was able to see her with initials at the bottom
of the screen.
Q. And did you review any other information from criminal databases in determining or identifying
Heather Ann Tucci~Jarraf?
A. Sure, yes, ma'am. As a normal part of the investigation we do a driver's license check and what we refer to commonly as the NCIC database.
MS. WALTERS: Permission to approach the witness, Your Honor.
THE COURT: You may.
BY MS. WALTERS:
Q. I ' m showing you what's been marked as Government Exhibit No. 2 and has been previously
provided to defense counsel. Do you recognize Government Exhibit No. 2.
A. Yes, ma'am, I do.
Q. What is Government Exhibit No. 2?
A. This is what, in the course of an investigation this is what we normally do . This is, this document provides driver's license information as well as again what we refer to as an NCIC check on an individual.
Q. And who was the target of that specifically NCIC check?
A. This one specifically, ma'am, as identified on the document is Heather Ann Tucci-Jarraf.
Q. And is that the name contained specifically on Government Exhibit No. 2?
A. Yes, ma'am, I'm looking at Exhibit No. 2, and the name there is precisely that.
Q. Can you also tell me what the date of birth is?
A. Yes, ma'am. The date of birth the way these documents read , 1972-07-30 , so that would be
July 30, 1972.
Q. Is there also an address noted on Government Exhibit No. 2?
A. Yes, ma'am there is an address. There the says primary contact address, 29 Western Avenue,
Lynn, MA for Massachusetts, 01904.
Q. And other than the main date of birth and address, is there anything else contained in Government
Exhibit No. 2 that assisted you in your investigation as to Heather Ann Tucci-Jarraf?
A. Yes, ma'am. There is two photographs here of Ms. Tucci-Jarraf that are contained. There's also other information here, Social Security number, height, gender, what we would call just regular identifiers.
Q . And is Government Exhibit No. 2 a fair and accurate copy of the printout that you generated
during the course of your investigation of this wire fraud/bank fraud matter?
A . Yes, ma'am, this is a fair and accurate representation. This document would have been provided
by me by our NCIC people at the office. MS. WALTERS: At this time, Your Honor, the government seeks to admit and publish to the Court Government Exhibit No. 2.
MR. BOS : Objection, Your Honor.
THE COURT: The Court will admit Government Exhibit 2 over objection, bearing in mind that the objections are those which have previously been addressed.
(Government 's Exhibit Number 2 admitted into evidence.)
BY MS. WALTERS:
Q. You mentioned that you obtained videos of Heather Ann Tucci-Jarraf. And specifically can you tell us when you obtained those videos?
A. Yes, ma'am. When there are videos that were obtained --there was one video that was obtained for the indictment and subsequent videos after the indictment.
Q. Can you tell us about the video that was obtained after the indictment?
A. In one particular video, ma'am, the -again, there were multiple that were obtained after the indictment, this video depicts a, the arrest of Mr. Randall Bean and Ms. Tucci-Jarraf is on the telephone. And when we were able to do that, obviously the arrest is not on this video, but we can hear her conversation and also another FBI agent who was at the scene was referenced.
Q. And in the video that you're referring to, can you actually see the face and likeness of the
defendant?
A. Yes, ma'am. In this video you can see Ms. Heather Ann Tucci-Jarraf.
Q. And so I 'm going to show you what's been marked as Government Exhibit No. 3. MS. WALTERS: And for the record, Government Exhibit No. 3 was provided to defense counsel last week by email link and also provided to defense counsel today in Court, Your Honor.
THE COURT: Thank you .
BY MS. WALTERS:
Q. Do you recognize Government Exhibit No. 3?
A. I do, yes, ma'am.
Q. What is Government Exhibit No. 3?
A . Government Exhibit 3 is a CD, and it is both signed and, signed by me and dated by me for 8/4/2017.
Q. When was the last time that you reviewed Government Exhibit No. 3?
A. This morning at your office we looked at it.
Q. And does Government Exhibit No . 3 represent a fair and accurate depiction of the video that you discovered in the course of your investigation of this matter?
A. Yes, ma'am. It would be me or another investigator discovered it. But yes, ma'am.
Q. But you have personally reviewed it?
A. I've viewed the relevant parts, yes, ma'am.
MS. WALTERS: At this time, Your Honor, personal personally the government wishes to admit
Government Exhibit No. 3 and also publish it to the Court.
MR. BOS : Objection, Your Honor.
THE COURT: Are your objections the same, Mr. Bos, as those previously articulated?
MR. BOS : Yes, Your Honor.
THE COURT: Very well. Thank you. The Court will admit Government Exhibit 3 over objection.
MS. WALTERS: Thank you, Your Honor.
(Government's Exhibit Number 3 admitted into evidence.)
THE COURT: Mr. Bos, will you confirm please, whether the monitor on your table is on.
MR. BOS: It's on, Your Honor.
THE COURT: Thank you.
(Videotape played)
[actually a DVD showing a small portion of video below they only showed the portion of her asking them to identify themselves. Randy was pulled for the RV and beaten in the head upon arrest. This video was posted on a number of blogs from different people. This is the one I posted.]
BY MS. WALTERS:
Q. Is Government's Exhibit No. 3 as I played it what you recall being on the video that you
observed -
A. Yes, ma'am.
Q. --with respect to this defendant . And based on your review of the NCIC report , other videos and this one , does the person depicted in Government Exhibits No . 2 and 3 match?
A. Yes , ma'am.
Q. Now, Agent Steill, did you testify in the grand jury for the purpose of obtaining the indictment
which is the subject of this removal hearing today?
A. Yes , ma'am, I did .
Q. And when did you testify in the, before the grand jury?
A. July 18, 2017.
Q. And with respect to the identity of the suspects charged in the indictment , specifically Heather
Ann Tucci-Jarraf , do you recall what specific information you presented to the grand jury at that
time?
A . Yes, ma'am . In that I discussed the evidence presently in the possession, and that being an audio recording, a video recording that I previously referenced in this hearing today where Ms. Heather Ann
Tucci-Jarraf ' s initials were on that screen . And also in our possession we have the NCIC report, the driver ' s license and the information that we previously discussed here today.
Q. And did you have any audio evidence with respect to Heather Ann Tucci-Jarraf?
A. Yes, ma'am, I had an audio recording that took place in the RV dealership .
Q. And to be specific with respect to the video evidence that you presented to the grand jury, could you clearly see the defendant in that particular item?
A. Yes, ma'am.
Q. That you presented to the grand jury?
A . And also the initials on the screen as well that I discussed with the grand jury.
Q. So based on your investigation, your review of Ms. Tucci-Jarraf’s videos, arrest photographs and other information obtained from criminal databases, can you tell me whether you see the person named in the indictment and who you investigated here in the courtroom today?
A. Yes, ma'am, I can. I can, from my vantage point right here I can clearly identify Ms. Heather Ann Tucci-Jarraf . She is currently in an orange, has an orange shirt with an apparent white undershirt sitting next to counsel to my left and to the Court's left.
MS. WALTERS: And at this time , Your Honor, the government would request that the record reflect an in-court identification of the defendant.
MR. BOS : Objection, Your Honor.
THE COURT: Thank you, Ms. Walters. Mr. Bos.
MR. BOS : Objection.
THE COURT: Are your objections the same as those previously voiced?
MR. BOS : Yes, Your Honor.
THE COURT: The record will reflect Agent Steill's in-court identification of the defendant over
objection.
BY MS. WALTERS:
Q. Agent Steill, post -indictment did an arrest warrant issue for Heather Ann Tucci-Jarraf?
A . Yes, ma'am, an arrest warrant did out of the Eastern District of Tennessee , Knoxville division.
Q. And during the course of your investigation, how did you learn of the defendant's whereabouts?
A. She was --we did not know the exact whereabouts, but she was entered into NCIC, and then I received a call from the United States Secret Service actually late at night, approximately 11:30 to 11:45 regarding positive contact with Ms. Heather Ann Tucci-Jarraf.
Q. When you say that she was entered in NCIC, what does that mean specifically?
A . That is when we have an arrest warrant for an individual, we don't, we put them into NCIC for both, for officers’ safety , that if she were to be stopped or the individual were to be stopped , they would know that there is an arrest warrant for that individual and also simply just to have them picked up.
Q. And is that what precipitated the call from the United States Secret Service to you?
A . Yes, ma'am. The United States Secret Service had come into contact with her and two other individuals when they showed up in Washington, D.C. It's my understanding in a request to meet with President Trump.
Q. And what else did the Secret Service advise you as to the defendant's whereabouts?
A. The Secret Service provided me hotel information and room number information that we immediately, that following the next morning I immediately pr ovided to our Washington field office who subsequently made an arrest.
Q. And were you personally involved in the arrest of the defendant?
A. No, ma'am, I was not personally involved.
Q. How did you learn of the actual arrest?
A . I learned of the actual arrest from our field office, they provided the information to myself and --once the other agents , the information came back to us in Knoxville , then an arrest had been taken place with out incident.
Q. And were you advised of the details of the arrest?
A. Yes , ma'am . We did receive some details of the arrest. It ' s my understanding from the
information that we received from the Washington field office that Mr. Reef, Ms. Tucci-Jarraf and would other individuals were staying in room 601 . At the time the agents approached that room, Ms . Tucci-Jarraf was outside . One or more of the individuals was able to identify her from the window. Agents then radioed down to other agents task force officers and Metropolitan Police that were on the ground and an arrest was effectuated.
Q. Other than your review of the criminal databases, your review of videos of the defendant , what
else did you do to verify that the person arrested here in the District of Columbia was the same person that was arrested pursuant --or the same person named in the indictment and the arrest warrant that was issued?
A . Well, I think we really, you know, we've continued to continue to conduct course of interviews .
We've continued investigation. We've continued to review video and we've also continued ,so that's kind of our normal course. We've continued an effort to ensure that we've talked to everyone involved and have all the facts.
Q. And did there come a time where you requested fingerprint analysis for the defendant?
A. Yes, ma'am. There was a time when I did request that, absolutely.
Q. And to your knowledge , what agency conducted the fingerprint analysis?
A . That would be the FBI, CJIS.
Q. What does CJIS stand for?
A. I think it's the Criminal Justice Information System, ma'am, and we just commonly refer it
as CJIS located in West Virginia.
Q. And to your knowledge , based on your request for fingerprint analysis , was a report authored?
A. Yes, ma'am, there was a report authored at my request.
Q. I'm showing you Government Exhibit No. 4, which also has been previously provided to the
defendant. Do you recognize it?
A . Yes, ma'am, I do recognize this report.
Q. And what is it specifically?
A. Well, as you note on here, it says, "Request procedure , Special Agent , Parker H. Steill dated 7/27/2017 ." This is what I would refer to as like a biometric report and a fingerprint report that we request one of our biometric individuals at CJIS perform a fingerprint check. So what we have from a prior arrest of Ms . Tucci-Jarraf , and we look at those fingerprints and in the prints that were most recently obtained when she was arrested and the subject of this proceeding here today. It's simply a comparison. You've got two sets of fingerprints. And now they're going to do an analysis in order to determine that this is one and the same individual.
Q. And what specifically was the conclusion in the report which is Government Exhibit No. 4?
A. I'll draw attention to page 5 where it says, "Result of examination. The fingerprints present
on the standards referenced above is S-1 and S-2 ." That's what I previously discussed are the fingerprints of one and the same individual. And also noted on here, Mr . Cutler notes that as a quality assurance measure a second fingerprint examiner conducted an independent examination and reached the same conclusion.
Q. And so that particular line references S-1 and S-2. Can you tell us what S-1 and S-2 are and
who they relate to?
A. Yes , ma'am. I just go right to S-1. As you will note on here, you see the last na me Heather Ann
Tucci -Jarraf. You have a date of birth on there. And this one would be from the Metropolitan Police
Department is actually referenced on the bottom right, it says D.C. Metro Police, 7/27/2017, 9:40,
approximately 9:40.
Q. And can you tell us what the date of birth is that is listed on that particular portion of the exhibit?
A . Yes, ma'am. This references date of birth as 7/30/1972, and also an identifying Social Security number is also in here.
Q. And you mentioned S-2 as also a part of the exhibit. Can you explain to us what is contained in
that exhibit?
A. Yes. S-2 is prints that were provided to us by the authorities in Washington State , and this
again , you see two names on this . You see Heather Ann Tucci and then Heather Ann Tucci -Jarraf , also date of birth 7/30/1972 is also referenced on this document. You'll see right there state identification code on
there as well.
Q. And is Government Exhibit No.4 a fair and accurate copy of the report you received from the
FBI on or about July 28 , 2017 , in relation to your request for fingerprint analysis?
A. Yes, ma'am, that 's correct . MS. WALTERS: At this time the government wishes to admit and publish Government Exhibit No. 4 to the Court.
MR. BOS: Objection, Your Honor.
THE COURT: Mr . Bos , are your objections the same?
MR. BOS: Yes.
THE COURT: Government Exhibit 4 will be admitted over objection.
(Government ' s Exhibit Number 4 admitted into evidence . )
MS. WALTERS: Thank you , Your Honor . No further questions for the witness from the government, Your Honor.
THE COURT: Thank you very much, Ms. Walters. Mr. Bos, you may cross-examine.
MR. BOS: May I ask for permission to speak with Ms. Tucci.
THE COURT: Bear with me, please, while I confer with the deputy clerk.
(Discussion held off the record.)
THE COURT: We will recess this matter briefly and take another matter that will give you an opportunity to confer, Mr. Bos, and prepare for cross-examination. Ms. Tucci-Jarraf, please return with the marshal.
(Discussion held off the record.)
THE COURT: Agent Steill , you may step down, sir, thank you.
(Recess taken)
THE COURT: Mr. Bos, do you need additional time?
MR. BOS: No, we're ready, Your Honor.
THE COURT: Agent Steill, thank you, please take your seat .
(Witness resumes witness stand.)
DEPUTY CLERK: Re-calling Criminal Case , 17-531 , United States of America v. Heather Ann Tucci-Jarraf.
THE COURT: Now, Mr . Bos I understand that you are ready to proceed.
MR. BOS : Yes , Your Honor.
THE COURT: Very well. I note that it is now approximately five minutes after 12. We will proceed for 15 minutes or so and then recess for lunch and resume at 1:30.
MR. BOS: Your Honor, I believe that my examination will be relatively short .
THE COURT: Very well.
CROSS - EXAMINATION
BY MR. BOS:
Q. Agent Steill, you testified that you've been an FBI agent for how many years?
A. Approximately five, sir. Sorry, sir, came in as a new agent in 2012.
Q. How many investigations have you been involved with during that time period?
A. It's hard to say, sir. Approximately ten and maybe more. We have a small office, and we assist
each other in a lot of different investigations.
Q. Okay. Would it be fair to say that you're the lead investigator in connection with this case?
A. I think I am, yes, sir.
Q. Okay . Now, you testified that you had reviewed some social media videos that purportedly show
Ms. Tucci; is that correct?
A . That's correct, sir.
Q. And prior to the events that gave rise to the indictment, had you had any contact with Ms. Tucci
before then?
A. Yes, sir , I had.
Q. When did you have your prior contact with Ms. Tucci?
A. It was, I recall it as a Friday night. I apologize that I don't recall the exact date. I'm going
to guess approximately July 14, 15, I believe that's provided in the 302 of the exact date, sir, where myself and another agent attempted to call Ms . Tucci-Jarraf on a phone number that was provided to us at the arrest scene with a piece of paper that said Heather and provided a 253 area code, I believe, sir.
Q. So the contact that you had wasn't visual contact; is that correct?
A . That's correct, sir.
Q. You spoke to an individual on the other line of the phone that you assumed was Ms. Tucci; is that correct?
A. Yes, sir. Right. I did not have visual contact with her, yes, sir.
Q. And prior to that phone call , you had no contact whatsoever with Ms. Tucci; is that correct?
A. That's correct, sir. Just to clarify for the record, at the scene, at the arrest scene they referenced a lady by the name of Heather on the telephone , but I had no contact with her at the scene.
Q. Okay. And the codefendant's case, Mr. Bean, were you present at the time of his arrest?
A. I was, sir.
Q. And Ms. Tucci wasn't there, correct?
A . No, sir, she was not present at that scene.
Q. Now, you testified that you received notification of Ms. Tucci's arrest --strike that. You were not present when Ms . Tucci was arrested in this case?
A. No, sir, I was not.
Q. In fact , isn ' t it true that Ms . Tucci was arrested in Washington , D.C. and you were in Knoxville
at the time that the arrest occurred ; is that correct?
A . That is absolutely true , sir .
Q. In fact, isn't it true that the very first time that you ever saw Ms . Tucci was in this courtroom; is that correct?
A. Well, I would just say, sir, I saw her by the evidence that I already looked at, I seen her on video, I've seen photographs of her. The first time I saw her in person was on Monday.
Q. Of this week, correct?
A. That's correct, sir.
Q. Now, you testified that you saw some videos that purportedly show Ms. Tucci. Do you remember that testimony?
A. I do.
Q. Were you present when those --how many videos did you see?
A. There's numerous videos, sir. I just want you to know I don't want to speculate, and I'm
going to say at this point maybe I've seen four, approximately four videos.
Q. Okay. And those videos , were you present when the first video was made?
A. No, sir, I was not present when any of those videos were made.
Q. You anticipated my next question. So the second, third and fourth you were not present; correct?
A. No, sir. And again, that's an approximate number.
Q. And you can't even tell us when those videos were made; is that correct?
A. Sir, there is some information, the dates are put online and then they say July 10 call or something like that . So to my understanding based on that representation I can tell when the calls were made . And also we conducted interviews on the other side of those calls.
Q. Let me rephrase the question. You were not present at the time that the videos were made; is
that correct?
A . That's correct, sir.
Q. And that's the best you have is either what the content of the videos say or the date that the
video was uploaded; is that correct?
A . I would also rely on the interviews that we've conducted on the individuals that were present,
for instance , on one of those phone calls.
Q. And those individuals without identifying them here in court today, you don't know what, if any, potential animus or willing to curry favor with Ms. Tucci those individuals would have ; correct?
A. I would not, no, sir, I wouldn't be privy to that.
Q. Okay. And were those individuals actually put into the grand jury?
A. No, sir.
Q. Okay. Now, you testified that prior to, during the FBI you had also worked as a defense lawyer
and a prosecutor; is that correct?
A . Yes, sir. I practiced law, small town, for approximately seven and a half years. We did a little bit of everything down there.
Q. Prior to that you were in one of the service branches, is that correct?
A. I remained, sir, in the army.
Q. Did you do work in the capacity of military intelligence?
[Parker Steill nervously laughs]
A. No, sir, no, sir. I 'm straight up JAG. I'm only certified as a 27 Alpha.
Q. For the record, could you tell us what JAG means?
A. Yes, it's a Judge Advocate General. I've been trained at Charlottesville, Virginia, for Army JAG.
I'm currently in the National Guard on a reserve basis.
Q. So you're an attorney; correct?
A. Oh, absolutely, yes, sir.
Q. And an attorney for the army, is that
correct?
A . You can get kind of the legal context. I'm not on active duty right now . When I'm a drill status or on orders , I would be an army attorney, yes, sir.
Q. Okay.
MR. BOS: Brief indulgence , Your Honor.
THE COURT: Of course .
(Pause)
MR. BOS : No further questions, Your Honor.
THE COURT: Thank you very much , Mr . Bos.
Ms . Walters , do you have redirect?
MS. WALTERS: The government does not have redirect based on that, Your Honor.
THE COURT: Thank you, Ms. Walters. Agent Steill, thank you , you may step down.
THE WITNESS : Thank you, Your Honor.
(Witness excused . )
THE COURT: Ms . Walters , does the United States have other evidence?
MS. WALTERS: No further witnesses for the government, Your Honor.
THE COURT: Are there other exhibits that the government intends to introduce?
MS. WALTERS: The government is going to introduce the Pretrial Services Agency report as Government Exhibit No. 5.
THE COURT: Would you mark that, please .
MS. WALTERS: Yes, and I'll provide it to the Court. It's the same Pretrial Services Agency report
that was provided to the parties at the initial appearance and to the Court as well from Pretrial
Services.
THE COURT: Thank you. Do you still have that, Mr. Bos?
MR. BOS : I do , Your Honor. And in addition to our standing objection, I believe that there's
actually a code provision that says that the Court is not allowed to receive that evidence. I was not
prepared that the government was going to be seeking to introduce what's already part of the court record. But we would object as well.
THE COURT: Thank you, Mr. Bos. I will suggest the following: The Court will not admit Exhibit 5. The Court has already received Exhibit 5, as all of us did , at the time of Ms. Tucci-Jarraf's initial appearance. Indeed, Ms. Walters , you may wish to withdraw Exhibit 5 so that we have a clear record.
MS. WALTERS: Yes, that's fine, Your Honor.
THE COURT: Very well.
MS. WALTERS: And for the record, the government had provided that as an exhibit to the
defense previously.
THE COURT: Very well. As I indicated, the Court has received it, as all of us did, on July 26, but
it will not be admitted as an exhibit.
MS. WALTERS: Very well, Your Honor.
THE COURT: Does that complete the government's presentation?
MS. WALTERS: The government does have argument, Your Honor. Maybe Your Honor wishes us to do it after the break .
THE COURT: Thank you, Ms . Walters. Mr . Bos, is there evidence you will offer? If so , it may be that we will take our break now and resume after the recess .
MR. BOS : Your Honor , I think -
THE COURT: If you only wish argument then , I believe we can hear the parties' arguments now.
MR. BOS : Your Honor, we will be -well, first of all, we move to strike Agent Steill's testimony
and all the exhibits that were entered through him again.
THE COURT: May I ask , just so we have a clear record, whether the ground of your motion, grounds are the same grounds that you have offered previously?
MR. BOS: Yes.
THE COURT: Very well . Having considered those grounds thoroughly , the Court will deny the motion to strike Agent Steill ' s testimony.
MR. BOS: Thank you, Your Honor. Your Honor, we will be seeking to introduce the escort notice , we had a notice of filing yesterday , some documents that we're seeking to introduce at this time. That would be the only exhibit that we would be introducing. Otherwise we would be prepared to proceed to argument atthis point . So -
THE COURT: If there is a volume of exhibits that were included with the notice of filing , I believe
it is more appropriate that you identify one by one what it is that you wish to offer so that I can hear from Ms. Walters. And perhaps you can use the time during the recess to confer and we can proceed in a more expeditious fashion when we return.
MR. BOS: That's fine, Your Honor.
THE COURT: Very well . Thank you very much.
Ms . Tucci-Jarraf , please return with the marshal.
(Recess taken)
DEPUTY CLERK: Re-calling Criminal Case Year
2017-531-M , United States v . Heather Ann Tucci-Jarraf .
Lisa Walters for the government , David Bos for the
defendant . Pretrial officer is Andre Sidbury . This is
an identity hearing on a removal .
THE COURT: Now, Mr . Bos , are you ready to resume?
MR. BOS : Yes, Your Honor.
THE COURT: Very well. Before the recess you indicated that you completed your cross-examination of Agent Steill and that you may wish to move into evidence certain exhibits.
MR. BOS: That ' s correct , Your Honor. Your Honor , as the Court knows , yesterday and we filed a
notice of filing with the Court and attached to that notice of file was a 286-page document which contained 40 UCC filings identified as Exhibits 1 through 40.
At this time --and the first , the original due declaration and notice of factualized trust. Number two
is an original due declaration of issue by original repository. Annex 3 through Annex 40 are UCC filings and they've been filed over the years by Ms. Tucci. We would be seeking to introduce that as Defense Exhibit No. 1 , as it's our position it goes directly to the identification issue that the Court has to address.
THE COURT: What is your argument, Mr. Bos, concerning how those exhibits in your words go to the identification issue?
MR. BOS : Your Honor , the only issue that the Court has to decide today is whether or not
Ms . Tucci-Jarraf is the person who's been indicted in the Eastern District --excuse me , in the District of Tennessee. It ' s our position that the annex been has shown that she's, in fact, not the person who was indicted in Tennessee.
THE COURT: May I ask you to further articulate your argument, please , regarding the statement that you just made?
MR. BOS: I ' m not sure what more I can give to the Court at this point , but it is our position that
they do refute the identification issue.
THE COURT: How do the documents refute the testimony of the officer, of the agent, excuse me, of
Special Agent Steill?
MR. BOS: As the Court knows, it doesn't have to refute the testimony. It can certainly undercut the
government's case as far as the identity . The Court could receive his testimony and also accept our exhibit and find that the exhibit trumps the testimony that was given by Agent Steill , and that's especially the case where we have an individual who testified under oath about instances that he was not personally involved with , an individual who had never even met the person who he claimed to make the identification for until Monday of this week.
And our position is that the contents of Defense Exhibit No. 1 would undercut the reliability of
that identification. That's all I have, Your Honor.
THE COURT: Very wel . Thank you very much, Mr. Bos. Am I correct that you are calling the entire
series of documents Defendant's Exhibit l?
MR. BOS: Yes, Your Honor, and just the record is clear, these are the exact same documents that were
filed -
THE COURT: Very well. On ECF, as I'm sure you noted, they are separated, I believe, solely for filing purposes into two subsets.
MR. BOS: That's correct, Your Honor. The reason for that was that we could not actually PDF a
document quite this large, and so one document is 156 pages and the other one is 150.
THE COURT: That was my understanding. I simply want to determine that your reference to Defendant's Exhibit 1 is to both components, both portions.
MR. BOS : Yes, Your Honor.
THE COURT: Very well. Thank you very much. Now, Ms. Walters.
MS. WALTERS: Thank you, Your Honor. Your Honor , the government does oppose the admission of
Defendant's Exhibit No . 1 . The government did have the opportunity to receive the document through ECF, but it's the government's position that the document, the exhibit and the documents that make up the exhibit do not go in any way to the issue of identity which is before the Court . The government believes that the documents supported defendant's ideology, but it does not support or present any facts and, in fact, is incomprehensible that would support or refute or in any way present evidence that undercuts the government's testimony and evidence thus far with respect to her identity. So on those bases the government does oppose the admission of Defendant's Exhibit No. 1.
THE COURT: Thank you very much, Ms. Walters. Mr . Bos , do you wish to respond?
MR. BOS : No, Your Honor.
THE COURT: Are you able , using a single one of the multiple documents that comprise Defendant's Exhibit 1, to proffer how any such exhibit is at all relevant to the determination that this Court must make this afternoon?
MR. BOS : Your Honor, we believe it's directly relevant and we'll make those arguments at the time that we have to convince the Court that the government hasn't met its burden.
THE COURT: Very well. Thank you very much,
Mr. Bos . The record makes clear that the exhibits were first brought to the Court's attention by the Clerk's Office after the documents were delivered to the Clerk's Office. Because the --because Ms . Tucci-Jarraf was represented by counsel, the Court's action with respect to the documents , as is clear from ECF , was to enter an order making them available to you, Mr. Bos, so that you can determine what action you believe should be taken with respect to those documents. You did, of course, review the documents and ultimately filed them through ECF.
The Court did not seek to intervene in the issue of whether or not those documents would be filed. They were filed by you and they do appear on ECF as document No. 2 in 2 parts .
The mere fact that the documents are a part of the ECF record does not render them admissible at this
hearing, however. And the Court must undertake --the Court believe it was incumbent upon the Court to undertake an examination of the documents, which the Court did do in order to determine the question of admissibility. The Court finds, having done so, that the documents are not relevant to the issue before me . They may well be relevant to some other proceedings.
By stating that , I do not mean to suggest that they are or that I have a view of whether they will be .
They are not relevant to any matter concerning the identity of the person before me as the person named in the indictment and the arrest warrant . And because that is the full extent of what I am able to do in the course of this proceeding, the motions --the motion for the admission of Defendant's Exhibit No. 1 into evidence is denied.
Now, do you have other evidence, Mr. Bos?
MR. BOS: Well, first of all, Your Honor, I'd like to note our objection to the Court's ruling.
THE COURT: Very well. I believe it is noted, as is your continuing objection for the grounds, on the
grounds that you proffered this morning.
MR. BOS : And , Your Honor , we would therefore as the Court just said , that it is part of the case file in this case , and we would ask the Court to take judicial notice of this filing at this time.
THE COURT: The Court does not believe there is a ground upon which judicial notice can be taken. It is a matter that was filed that is largely because you did file it on ECF, as you were permitted to do as counsel. I believe we all recognize that the mere fact that a document is filed does not render it a matter as to which the Court could take judicial notice.
MR. BOS : Your Honor -
THE COURT: I will also note that even if the Court's ruling regarding the admission were otherwise ,
the Court ' s finding would likely be the same. And that is that the exhibits are not relevant to the issue that I must determine this afternoon.
MR. BOS : Your Honor , we just -
THE COURT: Put another way, whether the Court admitted them or not, the evaluation would still be the same.
MR. BOS : We would just ask the Court to note our objection. We have no additional evidence that we intend to offer at this time. We believe it's the government's burden to prove identity, and so we'll wait to hear their argument and intend to respond.
THE COURT: Very well. Thank you very much, Mr. Bos.
Are you ready to proceed with your argument, Ms. Walters?
MS. WALTERS: Yes , Your Honor .
THE COURT: Very well . We' ll hear your argument.
MS. WALTERS: So first, Your Honor, the government would ask that the Court take notice that at the initial appearance and, in fact, throughout the other appearances by the defendant she has also, always responded and noted that her name is , in fact, Heather Ann Tucci-Jarraf, which the government would note is a fairly distinct name.
The government would ask that the Court credit the testimony of Special Agent Steill. He testified
that he is one of the lead agents on the subject of the removal matter , that is the indictment out of Knoxville , Tennessee. He also testified that he testified before the grand jury as to the entire matter and specifically this defendant's identity as a suspect after which the indictment issued.
Special Agent Steill testified that he reviewed videos of the defendant stating her name and
also indicating her involvement in the matter that is the subject of the indictment . He reviewed photographs and other demographic information in relation to Heather Ann Tucci-Jarraf.
He also testified that there was a separate civilian witness who identified this defendant as
Heather Ann Tucci-Jarraf on the date that she was arrested here in the District of Columbia pursuant to a call to Special Agent Steill by the U.S . Secret Service. For his part , he did say he was not present at the arrest but received information from other law enforcement agents who advised that she was identified by a separate civilian witness as a defendant, at which time the arrest was effectuated.
Finally, Your Honor heard in court today Special Agent Steill point out the defendant and specifically identify her as the person for whom an arrest warrant issued pursuant to the indictment sitting here in court today.
The government would ask that the Court credit other competent evidence that has been presented , most importantly the fingerprint analysis that was conducted by the FBI, which concluded that this defendant is Heather Ann Tucci-Jarraf with a date of birth of July 30, 1972, a Social Security number ending in 1682 ; and also the government would note that those identifiers correspond with the name appearing on the indictment and the name and date of birth appearing on the warrant that is before Your Honor , and also the name and date of birth appearing on the Pretrial Services Agency report, which was provided to the Court and the parties at the initial appearance in this matter on July 26, 2017.
And finally the government would note that Ms. Heather Ann Tucci-Jarraf has been in custody since
July 26 , 2017, since her arrest here in D.C., so there is no question that the person who was arrested on that date and the person who is sitting before the Court today is , in fact , the same person . So the government would rest and submit to the Court that we have met our burden of proving that the defendant is, in fact , the person named in the indictment and the warrant that is the subject of this removal matter.
THE COURT: Thank you very much, Ms. Walters.
Mr. Bos .
MR. BOS : Thank you , Your Honor .
THE COURT: I will hear your response.
MR. BOS: Your Honor , we will submit that the government hasn't met its burden on the identity issue in this case. That's all that they've presented was Agent Steill's testimony, which was third-hand as far as the identification procedures are concerned. Agent Steill testified that he had not even seen the individual that's here in court today until Monday and that he wasn't present at the time of the arrest. He wasn't present at the time that the alleged crime on which the indictment was based, so there's no identification that was made by any of the victims alleged in the indictment. In fact , all that we have is a, and I understand that hearsay is admissible in this proceeding, but it is hearsay nonetheless. It's going to be unbelievably unreliable .
And what's most concerning to us is the fingerprint report that the government introduced as Exhibit No. 4. There was no indication at all about what, if any, proficiency testing the examiner had done to see whether or not the test was, in fact, accurate. Although they said that there was a second level of identification , the person who did the identification was never identified in the report. So we can't certainly rely on that report. And of course, that's the report that ' s generated by the government. We have not had a chance to fully confront the accuracy of that report.
THE COURT: Do you acknowledge that during your cross -examination of the agent you asked him no questions concerning any of those matters?
MR. BOS : Yes , Your Honor, I did ask him a few questions about that. And again, the evidence that the Court has, though, it is the report , he was reading from a report that he did not prepare by an individual that there's no indication that he had any direct contact with that individual. We don't know what the qualifications of that individual was . We don ' t know what the education level was, what type of certification that individual possessed at the time he made -
THE COURT: My question is do you acknowledge that you had an opportunity to ask Agent Steill those questions but did not?
MR. BOS : Right, because it's the government's burden to prove that those reports are reliable . We
couldn't stop them from corning in , but we can certainly attack them now at the time for the argument stage here. And we're pointing out to the Court that there are deep flaws in that particular report , which I think the government would maintain is their strongest piece of evidence. We not do know where the fingerprints came from, whether or not those, other than what's in the report.
And again , without knowing more about the author of the report, the Court should not be able to make the finding that that report is sufficiently reliable to support an identification finding by this Court , especially when you have a situation where you have not the arresting officer , not the officer that was present who spoke to the complainants at the time that they made the complaint to law enforcement , and he only makes this identification of the individual who is sitting right here in court , and just so the record is clear, Ms. Tucci is the only person who is sitting at counsel table wearing an orange jumpsuit. That's a pretty suggestive identification procedure that was done here in court , so I don't think that the Court should give it that much weight. So when you have a situation where you have a report that we don't know anything about the authorship as far as fingerprints coupled with an identification that we believe is not sufficient to make an identification that the Court should deny the
government ' s request for , we would submit that the government hasn't met its burden in t h is identification proceeding.
THE COURT: Mr. Bos, this is a question I will ask you, I will ask you as well, Ms. Walters. I neglected to do that earlier in the proceeding. What is your contention, Mr. Bos, regarding the applicable standard of proof?
MR. BOS: Your Honor, it is my understanding that probable cause is the standard of proof in identity
proceedings.
THE COURT: Very well. Ms. Walters, I will hear your reply. First may I ask whether you are in agreement that the standard of proof is probable cause?
MS. WALTERS: Yes , Your Honor. The government, that is the one thing that the government and the defense agree on \, and the government takes that information from the United States v. Perkins , 433 F . 2d 1182 , which is a case from 1970 , which indicates that probable cause is the applicable standard.
THE COURT: Very well. That has been the Court's assumption. I simply wanted to determine whether counsel are in agreement that that is the standard.
MS. WALTERS: Yes , Your Honor . However, with respect to the competency of the government's evidence, the government would first note that there were no questions asked of Special Agent Steill with respect to the FBI fingerprint report . And as Agent Steill testified , that report was authored at his request, and there was lengthy questions on direct as to the fact that there was specific items used to reach the conclusion in that particular report , including fingerprints obtained from the defendant on two different dates of arrest. Those exhibits are, in fact, part of the government's exhibit.
So any claim that there's a chain of custody at issue or the origin of the report is somehow skewed or stained, the government would strenuously oppose given the documents that have been entered in evidence and given the documents that have been previously provided to the defense as to that fingerprint report.
So there 's no basis to question that that is a fabricated report or that the items used to reach the
conclusions in that report are somehow faulty.
Additionally , the government would note that the Special Agent Steill ' s ability to identify the
defendant is clear based on his review of videos of the defendant, based on his review of criminal database information populated with respect to prior arrests of this defendant , including photographic evidence , date of birth , all of these things that were elicited on direct examination of the agent . So there was in no way any suggestivity in his identification of Ms . Heather Ann Tucci-Jarraf in court today , because he had a very firm basis of what she looked like and the government would argue what she sounded like when he attempted or had ashort phone call conversation with her prior to coming into court today.
And the government would note that he previously provided that information to the grand jury on July 18 , 2017 and they issued an indictment . So I believe Special Agent Steill ' s ability to identify this defendant based on his investigation is also clear.
The government would note thirdly and lastly that as the government stated in its argument just a short while ago, Ms. Heather Ann Tucci-Jarraf was also identified by an independent civilian witness prior to her arrest. And that evidence is in the record as well. Special Agent Steill testified that he received a call from the United States Secret Service who had been alerted to the defendant and was aware of the warrant and notified Special Agent Still upon which a law enforcement team encountered her at this hotel. They inquired where she was and a separate civilian witness said that she wasn't in the room but she was in the area and then pointed her out.
So there is very firm basis upon which Special Agent Steill could identify this defendant that is in
the record before the Court . And so the Court , the government would ask that the Court find that the
government has , in fact , met its burden of probable cause in this matter of identifying Ms. Heather Ann Tucci-Jarraf as the person named in the warrant and also the indictment.
THE COURT: Thank you very much, Ms. Walters. Mr. Bos , sorry . I saw you rising , is there something further?
MR. BOS : Well, Your Honor, I just want to make sure that the Court understands our argument. The argument is not whether or not that this evidence was -well , the Court made a ruling that the Court is going to accept the exhibits that the government , specifically of Exhibit No . 4 which is fingerprint evidence . That doesn't necessarily mean that the Court makes a finding that it's, in fact , reliable enough to meet the government's burden and identity hearing. So admissibility does not equate to reliability.
And our position is that notwithstanding our objection which we not only have , do we have a standing objection to the exhibit coming in , we lost that objection ; we still maintain it . The Court still has to make a further finding whether or not the report is , in fact , reliable and that ' s where our arguments are going
towards.
THE COURT: Very well. Thank you very much, Mr. Bos .
Having considered the full extent of the evidence offered during the course of this proceeding and the arguments of counsel , the Court finds that the United States Attorney has offered abundant credible, reliable evidence taken as a whole to compel the finding that the individual now before the Court is the same individual named in the warrant and the indictment filed in the court in the Eastern District of Tennessee. The Court ' s finding is made by the standard that counsel agrees is the applicable standard , that is the probable cause standard.
The Court has fully considered the arguments made on behalf of counsel for Ms. Tucci-Jarraf and finds that the evidence have offered simply does not support the arguments . In other words , there is no factual basis for any of them.
Accordingly , the Court will sign the order of commitment of Ms. Tucci-Jarraf to the Eastern District
of Tennessee for proceedings in that district and will order that Ms. Tucci-Jarraf be held without bond pending her appearance in that district.
Mr. Bos
MR. BOS: Your Honor, we are requesting that the Court order that we will be done on an expedited basis. As the Court knows , Ms . Tucci has been in custody in this matter for almost --longer than a week at this point . So to the extent that she can get to Tennessee as quickly as possible where hopefully she ' ll be able to revisit her bail determination , we make that request.
THE COURT: We will note forthwith on the commitment . However , I believe it is important for the record to reflect in response to your concern about the period of time that Ms . Tucci-Jarraf has been held , the reason for the period of detention for the last four days was , of c ourse , that the Court granted Ms. Tucci-Jarraf's request for a continuance.
The government was ready to proceed on Monday, which the Court noted was the third day , would have been the third day of Ms. Tucci-Jarraf's detention. We all assumed that that would be her reasonable maximum period for such a time of detention . Counsel for the government was prepared to proceed. The witness was present, and indeed the Court offered the opportunity to at least begin the proceeding while other matters were being addressed.
The Court did not begin the proceeding solely because of your objection on behalf of Ms. Tucci-Jarraf to doing so. So the record should reflect that any delay beyond Monday, July 31, was occasioned by Ms. Tucci -Jarraf.
MR. BOS : Well , I guess our response to that is because Ms . Tucci-Jarraf had the Hobson's choice of going forward with a lawyer that she felt she was not comfortable with or whether or not she was going to hire a lawyer or be pro se. So it does suggest that she actually voluntarily, but there was that issue that had to get resolved for Ms. Tucci-Jarraf .
THE COURT: Very well . Thank you, Mr. Bos .
Is there anything further on behalf of the United States , Ms. Walters?
MS. WALTERS: No , Your Honor .
THE COURT: Very well . Thank you very much, counsel. Ms. Tucci-Jarraf, please return with the
marshal.
(Proceedings adjourned at 2 : 24 p . m. )
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CERTIFICATE OF OFFICIAL COURT REPORTER
I , Barbara DeVico , certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter .
8-8-17
SIGNATURE OF COURT REPORTER DATE
