Order — United States v. Aziz Hassan Bey, Letez Osiris Bey, Minister Zakar Ali and Divineseven El, No. 22-CR-169-JPS (Dkt. 197, E.D. Wis.)
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An order in United States v. Aziz Hassan Bey, Letez Osiris Bey, Minister Zakar Ali and Divine-Seven El, Case No. 22-CR-169-JPS, in the U.S. District Court for the Eastern District of Wisconsin, signed by U.S. District Judge J.P. Stadtmueller and filed December 19, 2023 as Document 197. In October 2023 a jury convicted each defendant on every count charged against that defendant in an eighteen-count Indictment for wire fraud conspiracy, wire fraud, mail fraud and unlawful monetary transactions. The order denies the motions for mistrial of Aziz Bey, Letez Bey and Ali, who argued that the Government’s opening statement of an attempt to steal over $9 million varied from Indictment charts totaling $874,229; the Court finds no variance because the Indictment alleged attempts to obtain several million dollars in EIDL funds. It also denies El’s motions, finding El knowingly waived counsel.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff, Case No. 22-CR-169-JPS
v.
AZIZ HASSAN BEY, LETEZ OSIRIS BEY,
ORDER
MINISTER ZAKAR ALI, and DIVINE-
SEVEN EL,
Defendants.
1. BACKGROUND
In August 2022, the grand jury returned an eighteen-count
Indictment charging Defendants Aziz Hassan Bey (“Aziz Bey”), Letez
Osiris Bey (“Letez Bey”), Minister Zakar Ali (“Ali”), and Divine-Seven El
(“El”) (together, “Defendants”) with conspiracy to commit wire fraud in
violation of 18 U.S.C. § 1349 (Count One), ECF No. 1 at 5–7, and wire fraud
in violation of 18 U.S.C. §§ 1343, 2(a), and 2(b) (Counts Two Through Eight),
id. at 8–9. Aziz Bey, Ali, and Letez Bey were charged with mail fraud and
wire fraud in violation of 18 U.S.C. §§ 1341, 2(a), and 2(b) and 18 U.S.C.
§§ 1343, 2(a), and 2(b) (Counts Nine through Eleven). Id. at 10–11. Aziz Bey,
Ali, and El were charged with mail fraud in violation of 18 U.S.C. §§ 1341
and 2(a) (Counts Twelve through Fourteen). Id. at 12–13. Finally, Aziz Bey
and El were charged with unlawful monetary transactions in violation of
18 U.S.C. §§ 1957 and 2(a) (Counts Fifteen through Eighteen). Id. at 14. In
October 2023, following a weeklong jury trial, the jury found each
Defendant guilty on all counts for which he was charged. ECF Nos. 162, 163,
164, 165.
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During the trial, Defendants Aziz Bey, Letez Bey, and Ali each filed
a motion for a mistrial, alleging that the Government’s remarks during
opening statements constituted a prejudicial variance from the Indictment.
ECF Nos. 154, 155, 156. The Court stated that it would take the motions
under advisement, but that because all parties requested a jury trial, the
case would go to the jury. ECF No. 159 at 26. The Court set deadlines for
the Government to file a response to the motions and for Defendants to file
reply briefs to the Government’s response. Id. at 28. The Government filed
its response, ECF No. 166, but Defendants did not file reply briefs. Instead,
Defendants Aziz Bey, Letez Bey, and Ali each filed an “Affidavit of
Criminal Complaint” against the Court related to the jury instructions;
namely, asserting that the Court’s instructions to the jury constituted a
constructive amendment to the Indictment. ECF Nos. 171, 172, 173. The
Government responded to the affidavits, ECF No. 179, and Defendants Aziz
Bey and Ali filed reply briefs, ECF Nos. 181 and 182.
In the interim, El filed, all related to alleged violations of his Sixth
Amendment right to counsel: (1) a motion for retrial, ECF No. 167; (2) an
updated motion for a new trial, ECF No. 174; (3) a motion to amend his
motion for a new trial, ECF No. 183; and (4) a motion for bill of particulars,
ECF No. 184. The Government responded to the first two motions, ECF No.
179, but did not respond to the latter two, which raise variations on the
arguments set forth in the first two motions.
For the reasons set forth below, each of the motions described in this
Section will be denied. The Court will also briefly address the arguments
raised in the affidavits of criminal complaint, given that both the Court and
Magistrate Judge Nancy Joseph have previously adjudicated—in four
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separate orders—the same issue in pretrial motions to dismiss the
Indictment. ECF Nos. 82, 91, 92, 97.
2. LEGAL STANDARD
2.1 Aziz Bey, Letez Bey, and Ali’s Motions for Mistrial
Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the
defendant’s motion, the court may vacate any judgment and grant a new
trial if the interest of justice so requires.” Under this rule, “[a] defendant is
entitled to a new trial if there is a reasonable possibility that a trial error had
a prejudicial effect upon the jury’s verdict.” United States v. Van Eyl, 468 F.3d
428, 436 (7th Cir. 2006) (citing United States v. Berry, 92 F.3d 597, 600 (7th Cir.
1996)). In other words, “[t]he ultimate inquiry ‘is whether the defendant
was deprived of a fair trial.’” United States v. Danford, 435 F.3d 682, 686 (7th
Cir. 2005) (quoting United States v. Clarke, 227 F.3d 874, 881 (7th Cir. 2000)).
2.2 El’s Motions
Under the Sixth Amendment, a criminal defendant has a right to
represent himself in a criminal proceeding. Faretta v. California, 422 U.S. 806,
819–20 (1975); United States v. Oreye, 263 F.3d 669, 671 (7th Cir. 2001). A
defendant must “‘voluntarily and intelligently’ elect to conduct his own
defense,” and therefore “must first be ‘made aware of the dangers and
disadvantages of self-representation.’” Martinez v. Ct. App., 528 U.S. 152,
161–62 (2000) (quoting Faretta, 422 U.S. at 835). The operative inquiry in the
Seventh Circuit is “whether the record as a whole ‘demonstrates that the
defendant knowingly and intelligently waived his right to counsel.’” United
States v. Balsiger, 910 F.3d 942, 953 (7th Cir. 2018) (quoting United States v.
Moya-Gomez, 860 F.2d 706, 733 (7th Cir. 1988)).
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3. ANALYSIS
3.1 Aziz Bey, Letez Bey, and Ali’s Motions for Mistrial
Defendants Aziz Bey, Letez Bey, and Ali challenge the following
comments made by the Government during opening statements:
So the evidence is going to show in this case that Divine-Seven
El and Aziz Bey and Letez Bey and Zakar Ali were formally
Mark, Devonne, Chauncey and Anthony were just playing
make believe and engaging in magical thinking which would
be fine if they had not weaponized it and turned it outward
and used that thinking to defraud a lot of people out of a lot
of money. That is a crime. Quite a lot of crimes actually. You
saw earlier today they attempted to steal over $9 million
dollars of tax payer money. If you add in the unemployment
fraud and the car title fraud, it goes over an attempted $11
million of fraud.
ECF Nos. 154 at 1–2, 155 at 1–2, 156 at 1–2 (quoting ECF No. 150 at 17).
Defendants take issue with the fact that the statements that they “attempted
to steal over $9 million” and “attempted $11 million of fraud” are not
charged in the Indictment. ECF Nos. 154 at 2, 155 at 2, 156 at 2. Instead, the
Indictment sets forth several charts delineating the amount of money
received by each Defendant, which adds up to only $874,229. Id.; see also
ECF No. 1 at 6–7.
Defendants assert that these statements constituted a variance from
the Indictment. ECF Nos. 154 at 2–3, 155 at 2–3, 156 at 2–3 (quoting United
States v. Galiffa, 734 F.2d 306, 312 (7th Cir. 1984) (“A variance occurs when
the terms of the indictment are unaltered, but the evidence offered at trial
proves facts materially different from those alleged in the indictment.”) and
United States v. Ratliff-White, 493 F.3d 812, 820 (7th Cir. 2007) (“[A] variance
is fatal only when the defendant is prejudiced in his defense because he
cannot anticipate from the indictment what evidence will be presented
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against him or is exposed to the risk of double jeopardy.”)). Defendants
further contend that the asserted variance is unlawful because it “would
subject [them] to an increase [sic] offense level under the Guidelines for
sentencing purposes” based on the amount of financial loss at issue. ECF
Nos. 154 at 3, 155 at 3, 156 at 3 (citing U.S.S.G. 2B1.1(b)(1)(H) and (K)).
In response, the Government argues that Defendants
“misunderstand the different concepts of actual loss and intended loss” and,
moreover, that the Indictment does allege that “the defendants attempted to
fraudulently obtain several million dollars in EIDL funds and hundreds of
thousands of dollars in PPP funds.” ECF No. 166 at 2 (quoting ECF No. 1 at
6). Thus, the language of the Indictment is consistent with the
Government’s comments during opening statements and the evidence
adduced at trial, where the Government introduced evidence of loan
applications filed by Defendants that were funded, as well as unsuccessful
loan applications. Id. at 2–3 (citing Exhibits 1–46 (ECF No. 160 at 1–2)).
The Court agrees with the Government. “In general, a variance will
not constitute reversible error unless it change[s] an essential or material
element of the charge so as to cause prejudice to the defendant.” United
States v. Sorensen, No. 19-CR-00745-1, 2023 WL 4865004, at *8 (N.D. Ill. July
31, 2023) (quoting United States v. Scheuneman, 712 F.3d 372, 379 (7th Cir.
2013)). “A conspiracy variance claim is treated as an attack on the
sufficiency of the evidence.” Id. (citing United States v. Hopper, 934 F.3d 740,
758 (7th Cir. 2019)).
As an initial matter, the “specific amount of money the defendant
allegedly received . . . is not necessary to proving the crimes charged.”
United States v. Davis, 673 F. Supp. 252, 259 (N.D. Ill. 1987) (citing United
States v. Cina, 699 F.2d 853, 859 (7th Cir. 1983)). Thus, based on that reason
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alone, even if there had been a variance, it “is not material such that the
verdict must be overturned.” Sorensen, 2023 WL 4865004, at *8 (citing Cina,
699 F.2d at 859 and United States v. Simmons, 142 F.3d 441, 1998 WL 231103,
at *1 (7th Cir. 1998)).
Nonetheless, there was no variance here. In addition to including
charts detailing the amounts of money Defendants are alleged to have
received, the Indictment alleged that Defendants “attempted to
fraudulently obtain several million dollars in EIDL funds and hundreds of
thousands of dollars in PPP funds.” ECF No. 1 at 6. “The Fifth Amendment
is not offended when a difference between the indictment and the proof at
trial is insignificant, or a broadly worded indictment provides sufficient
room for the evidence presented at trial.” United States v. Natour, 700 F.3d
962, 969 (7th Cir. 2012) (citing United States v. Trennell, 290 F.3d 881, 887–89
(7th Cir. 2002)). In this case, the allegation that Defendants attempted to
obtain millions of dollars through their scheme was “explicit in the
indictment, in the Government’s opening and closing statements, [and] in
the proof at trial,” where the Government introduced both funded and
unsuccessful loan applications. United States v. Griffin, 76 F.4th 724, 738 (7th
Cir. 2023).
Because there was no variance, Defendants were not prejudiced.
Specifically, Defendants were not prejudiced by the Government’s opening
statement or the introduction of unsuccessful loan applications because the
language of the Indictment allowed Defendants to “anticipate . . . what
evidence will be presented against [them].” United States v. Hollnagel, 955 F.
Supp. 2d 830, 845 (N.D. Ill. 2013) (citing United States v. Howard, 619 F.3d
723, 727 (7th Cir. 2010)). Defendants’ argument that they will be prejudiced
because introduction of unsuccessful applications may subject them to “a
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more severe punishment because the loss amounts are higher” is “unripe,
as no sentencing guidelines have yet been determined.” Sorensen, 2023 WL
4865004, at *9, *11. Defendants are free to argue the issue of intended loss
versus actual loss in advance of and at their sentencing hearings. For these
reasons, Defendants Aziz Bey, Letez Bey, and Ali’s motions for mistrial,
ECF Nos. 154, 155, 156, are denied.
3.2 Aziz Bey, Letez Bey, and Ali’s Affidavits of Criminal
Complaint
In their affidavits of criminal complaint, Defendants Aziz Bey, Letez
Bey, and Ali allege that the Court violated their Fifth Amendment rights by
constructively amending the Indictment through the Court’s jury
instructions. ECF Nos. 171 at 2, 172 at 2, 173 at 2. Specifically, Defendants
take issue with the fact that the Court instructed the jury that the second
element of the charge of conspiracy to commit wire fraud requires the
Government to prove, beyond a reasonable doubt, that “[t]he defendant
knowingly became a member of the conspiracy with an intent to advance
the conspiracy.” ECF Nos. 171 at 2, 172 at 2, 173 at 2 (citing Jury Instructions
(ECF No. 161 at 19)). Defendants aver that the Indictment does not include
this element. Id.
In pretrial motions to dismiss, both the Court and Magistrate Judge
Joseph denied Defendants’ argument that the Indictment was deficient
because it lacked the “agreement element . . . and . . . the element that
[Defendants] knowingly joined,” ECF No. 97 at 4 (quoting ECF No. 91 at 3–
4), as well as their argument that the Indictment was deficient because it
lacked the “intent to defraud element,” ECF No. 92 at 6 (quoting ECF No.
82 at 5). The Indictment charges that Defendants “knowingly conspired
with each other . . . to devise and participate in a scheme to defraud and
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obtain money and property . . . by means of materially false and fraudulent
pretenses and representations.” ECF No. 97 at 4 (quoting ECF No. 91 at 3–
4). As the Court previously held,
The Indictment sufficiently states both [the “agreement” and
“knowingly joined”] elements. Compare ECF No. 1 at 5
(charging that Moving Defendants “knowingly conspired
with each other . . . .”), with United States v. Ganos, No. 18-CR-
62-PP, 2019 WL 927369, at *4 (E.D. Wis. Feb. 26, 2019) (“The
first paragraph tracks the language of the statute, alleging that
the defendant and his co-defendants knowingly conspired
(agreed) 1 with each other to devise and participate in a
scheme . . . .”); see also United States v. Willis, 868 F.3d 549, 553,
555–56 (7th Cir. 2017) (charge that defendants “knowingly . . .
conspired . . . with other persons” or where defendants are
“charged with conspiring with each other” sufficient to state
agreement element) (citing United States v. Moreland, 703 F.3d
976, 984 (7th Cir. 2012)).
Id. at 6–7; ECF No. 92 at 6–7 (same as to “intent to defraud” element); ECF
No. 82 at 5–6 (same). While the affidavits of criminal complaint are not in
the form of a motion for the Court to rule upon, the Court incorporates its
prior holdings on this issue by reference. For the same reasons that the
Court and Magistrate Judge Joseph found in four prior orders, these
arguments are meritless.
3.3 El’s Motions
El asserts a variety of arguments pertaining to his Sixth Amendment
right to counsel. His primary arguments are that the court did not properly
ensure that he waived his right to counsel and that his Faretta colloquy was
1The Ganos court added the word “agreed” in its order, ostensibly to show
that “agreed” is a synonym for “knowingly conspired.” The indictment in that case
uses only the words “knowingly conspired.” United States v. Ganos, No. 18-CR-62,
ECF No. 1 at 1 (E.D. Wis. Apr. 3, 2018).
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conducted under duress. ECF No. 167 at 1; ECF No. 174 at 2; ECF No. 183
at 1; ECF No. 184. The record does not support these assertions.
First, a bit of background. On September 26, 2022, El appeared for
his arraignment and plea hearing by video conference before Magistrate
Judge William E. Duffin. ECF No. 31. At that time, he was represented by
retained attorney Rae Shearn (“Attorney Shearn”). Id. El stated that he did
not consent to proceeding because any plea entered would be against his
will. Id. He also stated that he sought to hire another attorney, and Attorney
Shearn moved to withdraw as counsel. Id. Magistrate Judge Duffin ruled
that he would grant Attorney Shearn’s motion to withdraw after new
counsel made an appearance, and he rescheduled El’s arraignment and plea
hearing for October 11, 2022. Id.
On October 11, 2022, Magistrate Judge Duffin attempted to hold the
rescheduled arraignment and plea hearing, again by video conference. ECF
No. 34. Attorney Shearn appeared on behalf of El, and Magistrate Judge
Duffin noted that no new counsel had yet appeared. ECF No. 37 at 2–3. El
requested to address the court directly and without counsel. Id. at 3. El
stated that it was “against [his] best interest to hire an attorney who has an
allegiance to the bar association as [he’s] not a member.” Id. El then stated
that he wished to proceed pro se:
THE COURT: . . . . The question is, are you waiving your right
to counsel here today?
DEFENDANT: Yes, I will be my own counsel.
Id. at 4. After El refused to answer any of Magistrate Judge Duffin’s
questions to “make sure [he] underst[ood] the consequences of
representing [him]self,” Magistrate Judge Duffin rescheduled the
proceeding for an in-person hearing. Id. at 4–5. Magistrate Judge Duffin
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explained that if El did not come voluntarily to Wisconsin for the in-person
hearing, he would issue a warrant. Id. at 5. Magistrate Judge Duffin granted
Attorney Shearn’s motion to withdraw. Id. at 6.
On October 14, 2022, the proceeding reconvened in person as
scheduled, and El was present. ECF No. 40. Magistrate Judge Duffin’s first
question to El was as follows:
THE COURT: All right. Divine-Seven El, I notice you appear
here today without counsel. Do you intend to waive your
right to counsel and represent yourself in this matter?
DEFENDANT: Yes.
Id. at 2. Magistrate Judge Duffin then held a Faretta colloquy with El. Id. at
2–7. Thereafter, El stated that he had no questions, id. at 5, that he did not
believe that he had any “physical or mental illness, disease, disability or
impairment that affects [his] ability to concentrate, understand and meet
deadlines or communicate,” id., and decisively stated, “I will represent
myself. I don’t consent to the appointment [of counsel],” id. at 7. Based on
these statements following the Faretta colloquy, Magistrate Judge Duffin
found that El knowingly and voluntarily waived his right to counsel in this
matter and permitted El to represent himself. Id. at 7.
The case then proceeded to pretrial motions before Magistrate Judge
Joseph. On April 11, 2023, Magistrate Judge Joseph ordered the
appointment of stand-by counsel for El. ECF No. 58. The day after stand-by
counsel appeared for El, he moved to withdraw on the basis that El stated
that “he did not want . . . standby counsel and asked that [stand-by counsel]
immediately withdraw from his case.” ECF No. 66. Magistrate Judge Joseph
accordingly granted the motion to withdraw. April 21, 2023 text order.
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After pretrial motions were resolved and the Court entered a trial
scheduling order, on August 30, 2023, the Court referred El’s case back to
Magistrate Judge Joseph to ensure once again that El wished to proceed
without the assistance of stand-by counsel. ECF No. 101.2 Magistrate Judge
Joseph conducted a colloquy with El, who objected to the appointment of
stand-by counsel. ECF No. 103. At the final pretrial conference on October
3, 2023, this Court again cautioned El of the dangers of proceeding pro se.
ECF No. 143 at 14 (“You know there is an old adage that those who seek to
represent themselves have a fool for a client.”). The Court explained the
importance of understanding the sentencing guidelines and becoming
familiar with the discovery and exhibits, which it noted have “been
available to the defendants for an exceptionally long period of time,” and
with the Federal Rules of Evidence. Id. at 14–15, 21–22. The Court also
ensured that El understood the risks of proceeding to trial. Id. at 14–15.
El now argues that Magistrate Judge Duffin’s colloquy was
insufficient, that Magistrate Judge Duffin failed to “make an inquiry about
the conflict [El] was having with [Attorney Shearn] which [had] caused [El]
to terminate her,” and that he “was denied the option to substitute counsel,”
forcing him to choose between proceeding pro se or proceeding with
Attorney Shearn. ECF No. 167 at 1; ECF No. 183 at 1. He further argues that
the third, in-person arraignment and plea was scheduled with insufficient
notice that left him unable to “consider [his] options” because he was under
“threat of a warrant for [his] arrest.” ECF No. 174 at 2. Finally, because
The Court also referred Aziz Bey’s case to Magistrate Judge Joseph for the
2
same purpose, id., and later did the same as to Ali’s case, ECF No. 141.
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“[t]he conflict with [his] counsel was never addressed,” he also now
requests “the full certified discovery” exchanged in this case. ECF No. 184.
To begin, at none of the three hearings in September and October
2022, or at any time thereafter, did El ask for substitution or appointment
of counsel. Further, El never requested a continuance of the proceedings to
hire new counsel. Instead, on multiple occasions both at the September and
October 2022 hearings and at later proceedings, he stated that he was
unwilling to hire any attorney who was a member of a bar association,
objected to the appointment of counsel, and refused stand-by counsel. At
the September and October 2022 hearings, El also unequivocally stated at
least three times that he wanted to represent himself in this matter.
There is a fundamental difference in the inquiry a court is required
to make depending on whether a criminal defendant moves for substitute
counsel or moves to proceed pro se. See United States v. Cross, 962 F.3d 892,
897 (7th Cir. 2020); see also United States v. Welty, 674 F.2d 185, 191 (3d Cir.
1982) (“Although the nature of the representation the defendant is receiving
from his counsel is relevant to a decision to proceed pro se, it is not
necessary for the trial judge to explore the confidential relationship between
the defendant and his attorney in order to make certain that the defendant
knows the problems he faces in dispensing with legal representation
entirely.”). If a criminal defendant moves for substitute counsel, or for a
continuance to hire new counsel, the court is required to inquire into the
conflict between the defendant and his attorney. Cross, 962 F.3d at 898; see
also United States v. Zillges, 978 F.2d 369, 371–72 (7th Cir. 1992). However, if
there is “an unequivocal request” to proceed pro se, the court instead
conducts a colloquy regarding the waiver of counsel under Faretta, 422 U.S.
806, and need not inquire into the alleged conflict between the defendant
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and his attorney. See Cross, 962 F.3d at 898; United States v. Todd, 424 F.3d
525, 530 (7th Cir. 2005).
El’s statements “were more than sufficient to raise the issue of self-
representation,” and Magistrate Judge Duffin reasonably understood El’s
statements as an unequivocal request to proceed pro se rather than a
request to substitute counsel. United States v. Mancillas, 880 F.3d 297, 302
(7th Cir. 2018); see also Oreye, 263 F.3d at 670 (“[A] defendant can waive his
right to counsel through conduct as well as words . . . . If you’re given
several options, and turn down all but one, you’ve selected the one you
didn’t turn down.”) (collecting cases). Indeed, during his Faretta colloquy,
Magistrate Judge Duffin advised El that he could have counsel appointed
and asked whether the court should “appoint an attorney” for him, but El
continued to state that he wished to represent himself. ECF No. 40 at 2–3, 7.
Magistrate Judge Duffin’s Faretta colloquy was sufficient and
appropriate.
To determine whether a defendant’s decision to proceed pro
se was knowing and informed, we consider four factors:
(1) whether and to what extent the district court conducted a
formal hearing into the defendant’s decision to represent
himself; (2) other evidence in the record that establishes
whether the defendant understood the dangers and
disadvantages of self-representation; (3) the background and
experience of the defendant; and (4) the context of the
defendant’s decision to waive his right to counsel.
Todd, 424 F.3d at 530–31 (citing United States v. Avery, 208 F.3d 597, 601 (7th
Cir. 2000)). With respect to the first factor, the Seventh Circuit has “rejected
the notion that any checklist of warnings is mandated.” United States v.
Powell, 353 F. App’x 19, 22 (7th Cir. 2009) (citing United States v. Hill, 252
F.3d 919, 928 (7th Cir. 2001) and Faretta, 422 U.S. at 835). Instead, “[i]t is
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enough . . . for the district court to ‘ensure that the defendant knows his
rights and avoids hasty decisions,’” which obligation is met where “the
court alerts the defendant to the ‘difficulties’ of self-representation and
highlights some of the complexities of trial procedure.” Id. (quoting Hill,
252 F.2d at 928 and collecting cases).
Magistrate Judge Duffin advised El that if he chose to represent
himself, he would “be responsible for all aspects of [his] case.” ECF No. 40
at 3. He explained that “[f]ederal criminal law is complex and legal training
and experience are highly desirable.” Id. He noted that El would need to
become familiar with the federal statutes under which he was charged, the
Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and
the sentencing guidelines. Id. He explained how pro se representation
would work if El chose to testify or if he was detained prior to trial, and
how waiver of counsel affects his appellate rights. Id. at 4–5. Magistrate
Judge Duffin also ensured that El was not suffering from any impairment
that would affect his decision or ability to represent himself. Id. at 5.
This Court, too, repeated the same warnings at the final pretrial
conference and noted the copious technical material with which El should
become familiar, while observing that El has experience with the criminal
justice system given his prior conviction. ECF No. 143 at 11, 14–15, 21–22;
ECF No. 179-2; see also Hill, 252 F.3d at 928 (warning defendant of the
“drawbacks of self-representation” may include additionally noting that he
would have “a fool for a client”); id. (“Spelunkers, base jumpers, and
investors likewise brave exposure to unexpected and unforeseeable events.
[Defendant] was in the same position—and he knew it, having had some
experience with the legal process while racking up prior convictions.”).
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Simply put, within the context of this case—where El appeared
before three separate judges on multiple occasions to (1) confirm that he did
not want counsel appointed or to hire a new attorney, (2) discuss the
dangers of self-representation, and (3) ensure his waiver of counsel was
knowing and intelligent—El’s argument that he was under duress and
forced to choose between Attorney Shearn and self-representation defies
logic. See Hill, 252 F.3d at 929 (“A defendant bullied or frightened into
acquiescing in a lawyer that he would rather do without would be in a
much better position to say that the choice was not made knowingly or
intelligently.”). For these reasons, El’s motions are denied. And as this
Court noted at the final pretrial conference, El had all the discovery in this
matter for a long period of time; thus, his renewed post-trial request for
discovery on the basis that “[t]he conflict with [his] counsel was never
addressed,” ECF No. 184, is also denied.
However, given the filing of the instant motions, which again do not
change the fact that El earlier “knowingly and intelligently waived his right
to counsel,” the Court will “inquire whether [El] wishes to revoke his earlier
waiver” for purposes of sentencing. United States v. Fazzini, 871 F.2d 635,
643 (7th Cir. 1989) (citing Schell v. United States, 423 F.2d 101, 103 (7th Cir.
1970) and Harig v. Wolff, 413 F. Supp. 290, 296 (D. Neb. 1976)). Thus, should
El file a statement on the docket that he wishes to revoke his earlier waiver
of counsel for purposes of sentencing, the Court will refer his case to
Magistrate Judge Joseph to address the issue. In the absence of any filing
from El, however, his prior waiver shall stand for purposes of sentencing.
Id. at 642–43.
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Case 2:22-cr-00169-JPS Filed 12/19/23 Page 15 of 17 Document 197
4. CONCLUSION
Based on the foregoing analysis, the Court denies all of the pending
motions for mistrial. ECF Nos. 154, 155, 156, 167, 174, 183, 184. The Court
further notes, incorporating its prior holdings on the issue by reference, that
the arguments raised in the affidavits of criminal complaint, ECF Nos. 171,
172, 173, are meritless.
Accordingly,
IT IS ORDERED that Defendant Minister Zakar Ali’s motion for
mistrial, ECF No. 154, be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendant Aziz Hassan Bey’s
motion for mistrial, ECF No. 155, be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendant Letez Osiris Bey’s
motion for mistrial, ECF No. 156, be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendant Divine-Seven El’s
motion for retrial, ECF No. 167, be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendant Divine-Seven El’s
updated motion for a new trial, ECF No. 174, be and the same is hereby
DENIED;
IT IS FURTHER ORDERED that Defendant Divine-Seven El’s
motion to amend his motion for a new trial, ECF No. 183, be and the same
is hereby DENIED; and
IT IS FURTHER ORDERED that Defendant Divine-Seven El’s
motion for bill of particulars, ECF No. 184, be and the same is hereby
DENIED.
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Case 2:22-cr-00169-JPS Filed 12/19/23 Page 16 of 17 Document 197
Dated at Milwaukee, Wisconsin, this 19th day of December, 2023.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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