8:16-Cr-00023-WGC Doc 16 - Maryland Federal Criminal Case - Sentencing Transcript

Case 8:16-cr-00023-WGC Document 16 Filed 04/26/16 Page 1 of 40
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
- - - - - - - - - - - - - - x
:
UNITED STATES OF AMERICA :
: Criminal No. 16-00023-WGC
v. :
:
ROBERT C. NALLEY, :
:
Defendant. : March 31, 2016
:
- - - - - - - - - - - - - - x Greenbelt, Maryland
SENTENCING
BEFORE THE MAGISTRATE WILLIAM CONNELLY, Judge
APPEARANCES: KRISTI NOEL OMALLEY, Esq.

Office of the United States Attorney
6500 Cherrywood Lane
Suite 200
Greenbelt, Maryland 20770
On Behalf of the Government
ROBERT C. BONSIB, Esq.

Marcus and Bonsib
6411 Ivy Lane
Suite 116
Greenbelt, Maryland 20770
On Behalf of the Defendant
Audio Operator: Rita Sigona
Transcription Company: CompuScribe

5100 Forbes Boulevard
Suite 101
Lanham, MD 20706
301/577-5882
Proceeding recorded by electronic sound recording,

transcript produced by transcription service.
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I N D E X
Page
Preliminary Discussion 3
Statement of Facts by Kristi OMalley, Esq.

On Behalf of the Government 3
Victim Impact Statement by Delvon King 17
Mitigation by Robert Bonsib, Esq.

On behalf of the Defendant 20
Allocution by the Defendant 25
Comments by Donna Brennan 26
Sentencing 29
EXHIBITS FOR IDENTIFICATION IN EVIDENCE

For the Government:
1 4 4
KEYNOTES: --- Indicates inaudible in the transcript.

* Indicates phonetic spelling in transcript.
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1 P R O C E E D I N G S
2 THE COURT: Let me call the case of the United
3 States of America versus Robert C. Nalley. This is Case
4 Number 16-23-WGC. The record should reflect that present in
5 the courtroom is Judge Nalley. He is joined by his retained
6 counsel, Robert Bonsib from Greenbelt, Maryland.
7 We are also joined by Kristi OMalley, the United
8 States Attorney assigned the matter. I believe that we are
9 also joined by Mary Hahn from the Department of Justice as
10 well as Special Agent Kerry Sirrone* from the FBI who is the
11 case agent in the matter.
12 Also joining us, do we have Mr. King-Ali present in
13 the courtroom?
14 MS. OMALLEY: Mr. King-Ali is present. Yes, Your
15 Honor.
16 THE COURT: Very well. And I believe Judge
17 Nalleys wife is also present.
18 The matter is called for sentencing following a
19 plea that was taken on February 1, 2016. If there is nothing
20 preliminary why dont I give the floor to the Government to
21 allocute.
22 MS. OMALLEY: Thank you, Your Honor.
23 We are here before the Court today because Judge
24 Robert C. Nalley has pleaded guilty to a Federal crime, a
25 Deprivation of Constitutional Rights under Color of Law. The

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1 Constitution protects every persons right to due process and
2 prohibits any government official from using unreasonable
3 force or force to retaliate against or punish any individual.
4 Judge Nalley violated the due process rights of a
5 pro se defendant who appeared before him in court in July of
6 2014. As I know is clear to the Court, the Defendant here
7 today to be sentenced is Judge Robert Nalley, not Delvon
8 King. In fact, Delvon King stands in this courtroom as a
9 victim whose rights have been violated by Judge Nalley.
10 I would like to outline for the record the facts
11 that underlie Judge Nalleys criminal violation of Mr. Kings
12 civil rights.
13 On July 23, 2014 Mr. King was exercising his
14 Constitutional Right to represent himself in a criminal
15 trial. Mr. King was on trial in front of Judge Bragunier,
16 but Judge Bragunier asked Judge Nalley to handle the voir
17 dire process for that trial.
18 Mr. King had a stun cuff placed on him as a
19 security measure by the Charles County Circuit Court Sheriffs
20 because the Court had a policy of not putting shackles on
21 defendants in jury trials.
22 When Mr. King was brought to Judge Nalleys
23 courtroom Mr. King spread out his papers on the table and
24 calmly prepared to defend himself at trial. When Judge
25 Nalley entered the courtroom and began to interact with

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1 Mr. King Judge Nalley very quickly grew impatient with
2 Mr. Kings efforts to question the jurisdiction of the court.
3 Judge Nalley asked Mr. King a number of times what
4 he wanted to be called during jury selection and trial and
5 Mr. King repeatedly stated his name and referred to the
6 papers that he had filed indicating his chosen name, which
7 was Mr. King-Ali.
8 When Judge Nalley then asked Mr. King if he had any
9 voir dire questions Mr. King objected and tried to raise his
10 challenges to the jurisdiction of the court. Within less
11 than four minutes after the proceedings started Judge Nalley
12 was already so fed up with Mr. King that he decided it would
13 be appropriate to order the Sheriff in the courtroom to
14 electrically shock Mr. King.
15 This was a level of punishment for so-called
16 disruptive behavior which amounted to nothing more than
17 verbal interruptions that was widely disproportionate to
18 Mr. Kings behavior of trying to read from his papers and get
19 his objection to the proceedings and the jurisdiction of the
20 court on the record.
21 Unfortunately, the picture painted by Judge Nalley
22 in his sentencing submission seems to suggest that Mr. King
23 was an unruly defendant who was anxious and agitated and
24 looking around him repeatedly. But that is directly
25 contradictory to the video and audio evidence of the

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1 proceedings in this case.
2 As I noted in my sentencing submission I am moving
3 to admit two video recordings and an audio recording of the
4 proceedings that took place in front of Judge Nalley on July
5 23, 2014 into evidence in front of this Court. And I will
6 mark the Governments exhibit as Governments Exhibit No. 1.
7 And I would ask to present it to the Courtroom Deputy to
8 admit for the Court.
9 THE COURT: Any objection, Mr. Bonsib?
10 MR. BONSIB: No, Your Honor.
11 THE COURT: It will be admitted as Governments
12 Exhibit No. 1.
13 (The document referred to
14 was marked for
15 identification as
16 Governments Exhibit No. 1
17 and was received in
18 evidence.)
19 MS. OMALLEY: Thank you, Your Honor.
20 And for the record, I provided these recordings
21 also to the Court prior to this proceeding.
22 THE COURT: The record should indicate that I have
23 listened and both watched a video and an audio component and
24 I have reviewed both of them.
25 MS. OMALLEY: Thank you, Your Honor. And I would

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1 ask the Courts indulgence to also play the video and audio
2 for the record in this proceeding because I think it is
3 important that the Court and anyone attending this public
4 proceeding not be left with some misimpression that
5 Mr. Kings actions justified the unreasonable force used
6 against him.
7 THE COURT: Very well.
8 MS. OMALLEY: I will start with the video of the
9 proceeding that took place on July 23rd of 2014 in Judge
10 Nalleys courtroom. And give me just a moment to actually
11 put it on the screen for everyone.
12 (Pause)
13 THE COURT: None of the ---
14 MS. OMALLEY: Yes, its just going to take a
15 minute to --
16 (Pause)
17 MS. OMALLEY: One moment.
18 (Pause)
19 MS. OMALLEY: There we go.
20 (Whereupon, a video recording of the July 23, 2014
21 proceeding in Judge Nalleys courtroom follows.)
22 MS. NALLEY: Now as the Court is aware the audio
23 recording is separate from the video recording because the
24 video recording is close-captioned TV capturing of the
25 courtroom.
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1 THE COURT: I am aware of that. When I reviewed it
2 I had to look through the audio first and then the video.
3 (Video continues.)
4 MS. OMALLEY: And now for the record, Your Honor,
5 the video depicts Mr. King simply placing his papers out on
6 the table getting ready for the voir dire selection process.
7 The courtroom sheriff is some distance away from him.
9 MS. OMALLEY: I also note for the record that
10 Judge Nalley is on the bench at this time and this is where
11 the audio that we will play in a moment picks up for this
12 video.
14 MS. OMALLEY: And at this point in the video the
15 stun cuff has been activated which causes Mr. King
16 immediately to fall to the floor because that is what the
17 stun cuff is designed to do. It incapacitates a person
18 momentarily and administers a five-second, 50,000-volt
19 electric shock.
20 And then Judge Nalley leaves the bench and gives
21 the parties five minutes.
22 And I would point out for the record as is obvious
23 from the video that at not one moment in that video is there
24 any indication that there is a security threat to anyone in
25 the courtroom. The sheriff deputy remains some distance from

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1 the Defendant the entire time until the activation of the
2 stun cuff where he goes to move chairs in order to make sure
3 that Mr. King doesnt get injured when he knows hes going to
4 fall to the floor.
5 And there is no, nothing other than standing and
6 reading from papers.
7 Now the audio also shows nothing other than verbal
8 interruptions as Mr. King tries to make his arguments
9 challenging the jurisdiction of the court and tries to
10 repeatedly answer the question as to what he would like to be
11 called during the proceedings.
12 And I am playing the audio now from the same
13 proceeding.
14 (Whereupon, the audio recording of the July 23,
15 2014 proceeding in Judge Nalleys courtroom followed.)
16 (Whereupon, the audio and video recording
17 conclude.)
18 MS. OMALLEY: Your Honor, as the audio reflects
19 Mr. King is at most verbally interrupting the proceedings by
20 trying to offer his defense by challenging the jurisdiction
21 of the court. But he doesnt raise his voice. He doesnt
22 yell. He even addresses the Judge as sir on several
23 occasions.
24 Now the Defendant through counsel, turning to the
25 3553 factors at this sentencing, has offered a lot of

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1 information about Judge Nalleys distinguished career and his
2 background. And the Government does not dispute that Judge
3 Nalley did a lot over his career, that many people admire
4 him. And I am sure there are people in this courtroom that
5 feel that way.
6 And the Government took that into account, as well
7 as Judge Nalleys age, and most importantly the fact that
8 Judge Nalley is no longer sitting as a judge and therefore
9 can no longer make such decisions that violate the
10 Constitutional Rights of those who appear before him in
11 recommending a joint recommendation of one year of probation
12 for the crime that he committed.
13 But it is incredibly important that the Court and
14 we as a people not overlook the serious federal crime
15 committed by a judge in this case. Judge Nalley violated the
16 constitutional rights of a defendant who was trying to
17 represent himself.
18 Judge Nalley, through his sentencing memo, now
19 tries to convince the Court that this conduct is somehow
20 justified because of Mr. Kings past or because shocking
21 Mr. King actually made him more obedient to the Court after
22 he was shocked.
23 Both of these arguments are disturbing, show a lack
24 of understanding for the gravity of the crime committed, and
25 simply are contrary to what the Constitution requires. A

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1 government official violates the Constitution when he
2 interferes with an individuals due process rights through an
3 order of the use of unreasonable force.
4 Everyone in this country has the right to due
5 process of law under our Constitution, and especially in
6 courtrooms, the very place where justice is supposed to be
7 guarded and protected.
8 Every person who enters a courtroom has the right
9 to defend himself zealously in a criminal trial even if the
10 judge or others disagree with the arguments he is trying to
11 raise. It would fundamentally undermine our system of due
12 process if defendants were made to be afraid of corporal
13 punishment for aggressively advancing legal, even if flawed,
14 arguments.
15 No matter what Delvon King did in the past,
16 Mr. King still retained the right when he stood before Judge
17 Nalley on July 23rd of 2014 not to be deprived of due process
18 of law, not to be subject to unreasonable and an unwarranted
19 use of force.
20 When reading between the lines of Defendant
21 Nalleys sentencing memo he seems to be saying that it is
22 somehow mitigating that Mr. King had caused problems in the
23 courthouse in the past. This is akin to arguing that it is
24 okay to violate the rights of difficult people, just as long
25 as you dont violate the rights of those who always defer to

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1 authority.
2 Our Constitution does not make such a distinction.
3 Mr. Kings history may justify putting a stun cuff on him so
4 that court security personnel would have the ability to react
5 quickly if Mr. King were to compromise the security of the
6 courthouse or try to flee.
7 But the fact that sheriff deputies are justified in
8 putting the stun cuff on him is not the same thing as being
9 justified in ordering the activation of that stun cuff just
10 because you simply get annoyed with the arguments that a
11 defendant before you is making. Our Constitution does not
12 allow a violation of rights based on annoyance.
13 In this case, as the video shows, Mr. King made no
14 threatening movements. Mr. King did not threaten the safety
15 of any court personnel. Mr. King did not try to flee.
16 Mr. King did not even yell or show signs of agitation.
17 And as the audio of the court proceeding shows it
18 was Judge Nalley who became agitated. What Mr. King did was
19 engage in perhaps a misguided attempt to verbally object to
20 the jurisdiction of the court and did not always stop talking
21 when the Judge was trying to talk.
22 For that he got punished with about 50,000 volts of
23 electricity shot through his body. While the jolt of
24 electricity may have only lasted five seconds it was still
25 powerful enough to drop Mr. King instantly to the floor and

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1 cause him to scream out in pain.
2 It does not matter what history Mr. King had in
3 Charles County, that level of force that was ordered by Judge
4 Nalley in this case was highly disproportionate to any verbal
5 interruption.
6 To be clear, as the report of investigation by
7 Charles County Sheriffs Office points out, the history of
8 disruption may be a reason to deploy, meaning put on a stun
9 cuff, but is not a reason to activate a stun cuff.
10 We do not live in a country where it is appropriate
11 to shock people into compliance without justification. Judge
12 Nalley had plenty of options in this case if he believed that
13 Mr. King was not respecting the authority of the Court.
14 Judge Nalley could have held Mr. King in contempt,
15 ordered the sheriffs to take him back to lock-up, or stopped
16 the proceedings. Or, Judge Nalley simply could have listened
17 to Mr. Kings objection and then overruled it. Which is
18 exactly what Judge Nalley did later in the proceedings, after
19 Mr. King was shocked and returned to the courtroom.
20 Mr. King was only asking to preserve his issue for
21 the record. And once Judge Nalley actually did that the
22 proceedings went smoothly afterward.
23 What Judge Nalley did instead, at the time when
24 Mr. King started verbally interrupting him, was order that a
25 sheriffs deputy shock him which is an unreasonable amount of

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1 force. Frankly, this is on par with the Judge telling the
2 sheriffs to punch the defendant or slap him or any number of
3 other physical assaults that would on their face be
4 outlandish and inappropriate in reaction to Mr. Kings
5 conduct in this case.
6 This Court should not give credence to the argument
7 that because Mr. King acted more respectfully to Judge Nalley
8 and Judge Bragunier after he was shocked then the shock must
9 have somehow been justified. The ends of a more compliant
10 and most certainly more afraid and timid Mr. King certainly
11 do not justify the means of using unwarranted force in the
12 form of an electric shock against him.
13 Our system of justice does not allow a judge to
14 punish a defendant by ordering physical force merely for
15 verbally interrupting the judge. I think it is also telling
16 that no other person that the Government interviewed, no
17 other person who testified before a Grand Jury whether a
18 sheriff, deputy or a judge, would have ever contemplated
19 shocking Mr. King in the moment that Judge Nalley decided to
20 do so.
21 Not one sheriff said he would have made the
22 decision on his own to shock Mr. King in that moment because
23 there was no threat. Not one judge indicated that they would
24 have ordered a sheriff to shock Mr. King in that moment.
25 I know this Court has dealt with pro se defendants

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1 over the years who have challenged the jurisdiction of the
2 court as have I as a prosecutor. And I am confident that
3 this Court has never ordered force against a pro se defendant
4 because of an interruption, a verbal interruption.
5 We simply cannot tolerate such a violation of due
6 process rights in a court of law. In this case Mr. King had
7 a right to expect to exercise his Constitutional Right to
8 represent himself pro se free from unreasonable force in the
9 form of an electric shock in the process.
10 What Judge Nalley did when he ordered Mr. King to
11 be shocked is a crime. It violates Mr. Kings civil rights.
12 This is very serious conduct that cannot be tolerated under
13 our Constitution and that both we as prosecutors and judges
14 have taken an oath to defend.
15 Judge Nalley has pleaded guilty to this serious
16 crime and accepted responsibility for violating Mr. Kings
17 civil rights. But judges dont get to fall back on excuses
18 of split-second poor decision-making that result in violating
19 someones rights who appear before them.
20 Judges are and should be held to a higher standard
21 than that. A judge presiding over a trial or any proceedings
22 with a pro se defendant should be the first person looking
23 out for the defendants rights and protecting them rather
24 than being the violator of those rights.
25 Now as noted in the Plea Agreement and the

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1 Government sentencing submission, the Government is only
2 recommending one year of probation, mainly because of Judge
3 Nalleys age and because the Government is confident that
4 Judge Nalley will no longer be in a position to violate
5 anyone elses civil rights on the bench.
6 Therefore the Government does not believe a lengthy
7 sentence in prison is necessary to deter this Defendant
8 before the Court today or protect the community from future
9 crimes from him.
10 And as far as deterrence of others, frankly as I
11 mentioned earlier I have encountered no other judge that
12 would have taken these actions in these circumstances.
13 The Government defers to the Court as to the
14 conditions of probation that may be appropriate and a fine
15 may well be appropriate in this case, but the Government also
16 defers to the Court as to that.
17 The most important outcome today is a recognition
18 that every person in this country is entitled to exercise
19 their right in of all places a court of law free from
20 unreasonable uses of force.
21 The sentence imposed on Judge Nalley by this Court
22 should reflect the fact that Judge Nalley has committed a
23 federal crime and such conduct has consequences. Judges, of
24 all people, cannot violate the rights of citizens of this
25 country without consequences.

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1 Thank you.
2 THE COURT: Ms. OMalley, I know that Mr. King or
3 Mr. King-Ali is present in the courtroom. He does have
4 rights under 18 U.S. Code Section 3771, which is the Crime
5 Victims Right under Federal Law to address the Court. He
6 has previously addressed me at the initial appearance on
7 February the 1st. I have reviewed what he said at that time.
8 And he has also provided me with a two-page written
9 statement. But today does he wish to speak?
10 MS. OMALLEY: One moment, Your Honor. Let me
11 inquire.
12 THE COURT: Yes, maam.
13 (Pause)
14 MS. OMALLEY: Yes, Your Honor. He appears to want
15 to speak, Your Honor.
16 THE COURT: All right. Mr. King-Ali, if you would
17 please come forward. And if you would speak at the podium,
18 it is necessary that you speak directly into the microphone.
19 We need to be able to hear what you say and accurately record
20 what you say.
21 MR. KING-ALI: How you guys doing today? I am
22 Samid Ali Kaleo King-Ali*, the sole possessor of the name
23 Delvon King.
24 Every person has a right to defend himself in a
25 court of law. On July 23rd, 2014 I exercised that right in

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1 Robert Nalleys --- courtroom. While making a point about my
2 position in my case during jury selection Nalley ordered
3 Deputy Charles Deehan to torture me by electrocution through
4 a black box that was strapped to my ankle.
5 At that time I was traumatized. I fell to the
6 floor and was in excruciating pain. I feel that I should not
7 have had to suffer physical nor emotional distress because
8 Nalley had a problem with what I was speaking about regarding
9 the case law I was citing as well as other legal matters I
10 was discussing regarding my case.
11 When I was finally able to get up after the
12 electrocution I was in agonizing pain, confused and afraid.
13 In this unstable state I still had to defend myself the same
14 day in a case against me.
15 Being under threat, duress, and coercion this made
16 it extremely difficult for me to function and it adversely
17 impacted my ability to defend myself. But I had no choice.
18 50,000 volts of electricity was sent through my body.
19 Research shows that not only does this amount of electricity
20 going through the body immobilize a person, it also impairs
21 his ability to remember and process information.
22 And this is what I suffer. Under these
23 circumstances, with my mental state being impaired there was
24 no way that I could have had a fair trial. As such the
25 outcome of my case was impacted and had I not been tortured,

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1 leaving me mentally incapable of properly defending myself,
2 my case would have resulted in a different outcome where my
3 freedom would not have been taken away. Would not have
4 unlawfully been taken away.
5 I was so afraid that I did not know if I would be
6 shocked again sometime during my trial which added to my
7 anxiety I felt. I believe that I should not have had been
8 subjected to the pain and torture I suffered on July 23rd,
9 2014 in Nalleys courtroom.
10 In addition to the abuse I suffered inside the
11 courtroom, I was attacked on numerous occasion by Charles
12 County law enforcement and court officials during the time,
13 throughout the duration of my trial. Including when I was
14 asking for materials that I needed to prepare for my case
15 like a pen and paper.
16 This has been a very dehumanizing experience. What
17 happened in Nalleys courtroom was an attempt to reduce me to
18 an animal status. These acts of terror shall not go
19 unpunished. Thank you.
20 THE COURT: Anything further, sir?
21 MR. KING-ALI: No, sir.
22 THE COURT: Thank you, sir.
23 Ms. OMalley, does the Government have any claims
24 for restitution in the case?
25 MS. OMALLEY: No, Your Honor.

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1 THE COURT: Okay. Does the Government have
2 anything else to introduce at this time?
4 THE COURT: Okay. Lets hear from Mr. Bonsib.
5 MR. BONSIB: Thank you, Your Honor.
6 May it please the Court. Your Honor, in the
7 matters that we have presented to the Court we have tried to
8 make it clear that Judge Nalley has accepted responsibility
9 for the decision he made on that day to activate or order the
10 activation of the stun gun.
11 But at the same time trying to put in context the
12 judgment that he made, not to say that it was right, but to
13 say that there was an explanation for what led up to that.
14 As the Court knows from judging people over the course of the
15 years, people sometimes make instantaneous decisions that end
16 up being perhaps not the right thing to have done.
17 Judge Nalley has accepted responsibility when he
18 has acknowledged that he acted in reckless disregard of
19 Mr. Kings rights. But that isnt the whole story here.
20 People act for reasons and understanding those reasons and
21 understanding what led up to them and putting the conduct in
22 the context of a persons entire life is important.
23 And it is one of the functions of sentencing, is to
24 understand the totality of a person and the context in which
25 they make the decisions that they make. So this was not
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1 something that Judge Nalley premeditated to do, expected to
2 have to do.
3 As the Court knows from the submissions, Mr. King
4 had had issues with Judge Bragunier a few moments before and
5 Judge Bragunier had sent word to Judge Nalley that he was
6 acting up and there was the history of what occurred that we
7 played out in the papers.
8 That is not offered to justify what happened. It
9 is however offered to explain what happened. When you look
10 at Judge Nalleys history on the bench and you look at the
11 letters that have been submitted in his behalf, and the folks
12 that have come to support him in the courtroom.
13 And the Court I am sure can recognize some of the
14 attorneys from the community. His former law clerks. A
15 woman by the name of Donna Brennan who wrote a letter to the
16 Court, made a point of coming today. And she talks about how
17 she observed during her tenure as his law clerk of how much
18 he tried to level the playing field when he had pro se
19 litigants in front of him. How he took time to try to
20 explain things.
21 And it is interesting and one of the reasons we
22 submit it as one of our exhibits, the transcript of the
23 proceedings as they went on after Judge Nalley resumed the
24 jury selection process, you can see in the process of jury
25 selection how he took time to advise Mr. King as to how the

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1 process of jury selection would go forward.
2 He asked him if he had additional questions that he
3 wished to ask of the jurors, and he did. And Judge Nalley
4 did. He explained to him the strike process. He explained
5 to him a number of other procedural things during the course
6 of the jury selection process. And the jury selection was
7 completed in a normal and an ordinary fashion.
8 Not in a summary fashion, but in a participatory
9 fashion. And that is more reflective of what Judge Nalleys
10 history has been. Some of the folks who are in court today,
11 including Mr. Renahan* who has written a letter to the Court
12 is Im sure well-known to the Court. He is certainly well-
13 known to me as a very aggressive defense lawyer.
14 And he, like I, have appeared in front of Judge
15 Nalley in very contentious matters. Judge Nalley, while you
16 dont necessarily at the end of the day want him to be the
17 one who is imposing a sentence on your client in a serious
18 matter, is an extraordinarily good example of a trial judge
19 who gives you a very fair trial, rules on objections without
20 any preconceived notion one way or the other, listens to
21 arguments, is a fine trial judge.
22 And many of the people who have appeared in front
23 of him over the years: prosecutors, defense lawyers, members
24 of the community who have seen him in action, have so said.
25 And that is the true reflection of who Judge Nalley is, not a
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1 decision that was made instantaneously if you will and as we
2 have indicated on an objectively reckless basis.
3 It is in that context that it is important to
4 understand and to judge the totality of this mans service on
5 the bench, as a prosecutor. Other folks have talked about
6 things Judge Nalley hasnt promoted on his own, but you can
7 see are reflections of who he is. His participation in the
8 Christmas in April program.
9 The sort of self-deprecating way that he addresses
10 himself when hes dealing with folks. Its not Im Judge
11 Nalley its This is Chris Nalley, This is Chris. He
12 doesnt wear his position imperially. He doesnt wear it, he
13 acts as a colleague, as a friend, as a member of the
14 community.
15 So it is tragic and unfortunate that this incident
16 has brought his judicial tenure to a conclusion. And as
17 Ms. OMalley has pointed out, that is a consequence of the
18 conduct in this case. He can no longer serve on the bench.
19 Obviously there is a financial component that goes with the
20 inability to be recalled for service that hell suffer. But
21 I think it is the loss of the opportunity to serve that he
22 has cherished over the course of the years that is the real
23 punishment that has been imposed on him in this case.
24 I dont need to repeat everything that folks have
25 said in the sentencing memo nor go through everything that is

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1 in the sentencing memo that we have tried to present to the
2 Court to show the context in which this happened. We have
3 done that because we think the context and the mitigation
4 strongly supports the joint recommendations of the parties
5 that a period of one-year probation is the appropriate
6 sanction to impose in this case when you look at the totality
7 of Judge Nalleys life, the consequences hes already
8 suffered, the public humiliation that he has suffered and
9 will suffer after this Government exhibit hits the press
10 again today.
11 These are real, real punishments and make the
12 imposition of a one-year sentence of probation the
13 appropriate sentence in this matter.
14 I dont believe that the Court needs to impose any
15 special conditions. I would ask the Court in this case to
16 impose a period of unsupervised probation with no other
17 special conditions. There certainly is no need to supervise
18 Judge Nalley.
19 There is no need to impose any other special
20 conditions because the punishment that has been most felt by
21 him as a result of his decision in this matter has occurred
22 by the loss of his judicial position and the fact that in the
23 public these matters have been laid out in the manner in
24 which they have.
25 So Your Honor, I know that you have reviewed

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1 carefully what we have submitted. I dont know that theres
2 anything more that I need to say to the Court at this point
3 that isnt already in the submissions. And we would ask the
4 Court to follow the joint recommendations of the parties.
5 And I know that Judge Nalley would like to briefly
6 address the Court when you are ready.
7 THE COURT: I will. Judge Nalley, would you like
8 to come up to the podium and speak.
9 (Pause)
10 THE DEFENDANT: Thank you, Your Honor.
11 To say that Im chagrined to be standing here is
12 understatement. I deeply regret having undertaken an action
13 that on reflection was an error in judgment and it has, had
14 the consequences on me and my family that Mr. Bonsib
15 mentioned. To say nothing of the Court I served on and other
16 people within the Charles County and for that matter Maryland
17 law enforcement and legal communities.
18 I really dont have anything to add to what
19 Mr. Bonsib has said. I appreciate his efforts on my behalf.
20 And I trust that you will impose a disposition here of the
21 sort that you deem appropriate to the situation. Thank you.
22 THE COURT: Thank you, sir.
23 Mr. Bonsib, do you have anything else to add? Any
24 other witnesses?
25 MR. BONSIB: No, Your Honor. Your Honor, I did

jmm 26
1 want to mention one thing. This doesnt really play into it,
2 but I do think one of the things that is, just from my point
3 of view is sort of interesting to --
4 THE COURT: Mr. Bonsib, will you take one moment.
5 I think you are going to get a note from somebody in the
6 audience.
7 (Pause)
8 MR. BONSIB: I think Ms. Brennan would like to
9 address the Court if the Court would let her briefly.
10 THE COURT: Certainly. Ms. Brennan. Ms. Brennan,
11 if you would come on up to the microphone. If you would
12 begin by telling me your full name and your address.
13 MS. BRENNAN: My name is Donna Brennan. I live at
14 12717 Quarter Horse Drive in Bowie, Maryland.
15 THE COURT: And Ms. Brennan, would you give me the
16 relationship that you have to Judge Nalley.
17 MS. BRENNAN: I was his law clerk in 88-89. My
18 letter was mentioned which is why I slipped the note to
19 Mr. Bonsib.
20 THE COURT: I have read your -- I note that after
21 you finished with Judge Nalley that you practiced law I think
22 for about 12 years or so with a large firm I think in D.C.
23 And then I think you left practice and have now spent all of
24 your time raising a family. Am I correct or am I off?
25 MS. BRENNAN: Sort of. When the practice group

jmm 27
1 broke up in the large law firm one of the partners invited
2 two of the senior associates to form a new firm in which we
3 would be partners. And so I did that for 10 years until I
4 left the practice of law.
5 THE COURT: What would you like to tell me,
6 Ms. Brennan?
7 MS. BRENNAN: Oh, I didnt know if the Court had
8 any questions concerning my letter since it was mentioned. I
9 had numerous occasions to observe Judge Nalley dealing with
10 pro se litigants, they were fairly common in Charles County.
11 And I, he in my opinion went above and beyond what was
12 necessary to make it easier for the pro se litigant to
13 proceed because they really were not familiar with the
14 judicial proceedings and rules and so forth.
15 THE COURT: I do recall your letter and the other
16 31 I think that were submitted. There were 32 in all. So I
17 thank you for taking the time not only to write to me and to
18 share with me your thoughts, but also to be here today and to
19 share with me your additional thoughts.
20 Thank you, maam.
21 MR. BONSIB: And I dont know, this is perhaps is
22 just one point of I dont know who listens to all of this,
23 but I know in the process of this case getting to where it
24 is, one of the things I found particularly curious is that
25 the judicial system has no training, or at least the State

jmm 28
1 system had no training for judges to explain to them what
2 this device was, what it does, anything to sensitize folks as
3 to the, just the mechanical and electrical operation of it.
4 It was a very curious thing to find that that
5 device is available but the training and the sensitivity as
6 to when to use it didnt seem to be there. Perhaps in the
7 future somebody will look into that so that we dont have a
8 repeat of this. But I dont know when that --
9 THE COURT: I can advise you that in the federal
10 system we do not have stun cuffs. The Marshal Service I
11 think has tasers and in an appropriate circumstance a taser
12 may be issued to a deputy in a courtroom. The decision
13 whether to deploy a taser or not rests solely with the
14 Marshal Service. It is not a judicial decision in the
15 federal court.
16 MR. BONSIB: Yes. Yes. Thank you very much, Your
17 Honor.
18 THE COURT: Yes.
19 Ms. OMalley, do you have anything to respond?
21 (Pause)
22 MR. BONSIB: I think the Judge has read all of
23 their letters. A lot of people would like to speak on his
24 behalf.
25 THE COURT: All right.

jmm 29
1 MR. BONSIB: Theyve all written letters to Your
2 Honor I think.
3 THE COURT: Mr. Bonsib and Judge Nalley, you can be
4 seated during the proceeding.
5 We now turn to the situation of the appropriate
6 sentence in the case. And there has been a great deal that
7 has been submitted to me and I just wish for the record to
8 put on that I have reviewed the Plea Agreement, the written
9 Plea Agreement in this case.
10 There was initially a Pretrial Services Report that
11 was issued on February the 1st which I went back and
12 reviewed. I listened to Mr. King-Alis statement that was
13 recorded on February 1st at the time of the taking of the
14 plea, when he addressed the Court as the victim.
15 I read his Victim Impact Statement which was dated
16 March 28th and which he has read to me today in the
17 courtroom. I have also read the Governments Sentencing
18 Memorandum which is on file in the Pacer system. And prior
19 to today I had the opportunity to review both the video and
20 listen to the audio recordings of the proceedings in the
21 Charles County Circuit Court on July 23, 2014.
22 Mr. Bonsib has submitted three submissions. The
23 latest was filed early this morning on behalf of Judge
24 Nalley. And in these submissions it has set forth a
25 Sentencing Memorandum which I have read, transcript excerpts

jmm 30
1 from the proceedings of July 23, 2014 which I have read.
2 There is a Charles County Sheriffs Office Investigative
3 Report as to the incident and to the appointment of force
4 which I have read.
5 And he has also provided me 32 letters of
6 recommendation. Some of the people that have written these
7 letters of recommendation are present in the courtroom and I
8 acknowledge their presence. I also acknowledge the presence
9 of Mrs. Nalley and I believe at least one of the sons is
10 present in the courtroom.
11 And I have listened carefully to the arguments of
12 counsel. Both Ms. OMalley and Mr. Bonsib have carefully
13 considered the significance of the case. And I think that
14 their comments are quite helpful to me and to all who listen
15 who understand the seriousness of this matter.
16 The record of the case indicates that on February
17 1st of this year Judge Nalley entered a plea in this case
18 pursuant to an information and a written plea agreement. He
19 pled guilty to the offense of Deprivation of Rights Under
20 Color of Law under 18 United States Code 242. This is a
21 Class A Federal Misdemeanor. And the maximum penalty as is
22 set by the Congress is one-year confinement, a fine not to
23 exceed $100,000, one year of supervised release, and a $25
24 special assessment.
25 This case is also governed by the Federal

jmm 31
1 Sentencing Guidelines. When the Guidelines were initiated
2 many years ago they were mandatory on a court. Through the
3 recent Supreme Court precedent the Guidelines are now
4 advisory. But we must always look at the Guidelines and
5 calculate out the Guideline range.
6 In this matter, a violation of 18 U.S. Code Section
7 242 provides for a base offense level of 10. There is also a
8 six-point increase to this base offense level because Judge
9 Nalley was a public official. He was a Circuit Court judge
10 in Charles County at the time of the offense. And when the
11 offense occurred he as acting under the color of state law.
12 This therefore gives a base offense level of 16.
13 The base offense level is reduced by three points for a
14 timely acceptance of responsibility. Not only was there a
15 Plea Agreement and an acceptance of responsibility at the
16 plea hearing and indeed today in his allocution to the Court,
17 but this was also done early in the process.
18 There is therefore a 13 base level offense in this
19 matter. A review of Judge Nalleys criminal history shows no
20 criminal convictions. There is therefore a criminal history
21 category of one. And therefore the Guideline range under the
22 Guidelines is 12 to 18 months confinement.
23 The Court is aware, however, that there is a joint
24 recommendation in this case that has been put forth by both
25 the United States Department of Justice as well as Mr. Bonsib

jmm 32
1 acting on behalf of Judge Nalley for a sentence of one-year
2 probation. And under the terms of the written plea agreement
3 each side was free to argue for whatever each side believed
4 to be the appropriate conditions of probation.
5 Ms. OMalley in her statements to the Court I think
6 set forth some of the reasons for the deviation from the
7 Guideline range including age, the fact that Judge Nalley is
8 no longer permitted to serve as a judge in the State of
9 Maryland. And also his background.
10 In sentencing in the Federal Court Congress has set
11 forth factors that we are to use. And if one goes to Title
12 18 of the United States Code, Section 3553, these factors are
13 set forth. It is always helpful to remind us what Congress
14 wants us to do when sentencing.
15 We are first to look at the nature and
16 circumstances of the offense, as well as the seriousness of
17 the offense, as well as the history and characteristics of
18 the Defendant. We are also to look at the need for the
19 sentencing posed to reflect the seriousness of the offense,
20 to promote respect for the law, to provide just punishment
21 for the offense, to provide adequate deterrence to criminal
22 conduct, to protect the public from crimes of the Defendant
23 in the future, and to provide needed education and/or
24 vocational training.
25 Congress has also directed the Federal Courts to

jmm 33
1 look at the Sentencing Guideline Recommendation as I
2 previously discussed. The need to avoid unwarranted sentence
3 disparities, as well as the need to provide restitution.
4 In turning to the various factors let us begin
5 first with the nature and circumstances of the offense.
6 Previously I said that yesterday I viewed both the videotape
7 and the audio. And it was played today in the courtroom for
8 all who are assembled can assess it themselves.
9 This case obviously involves the delivering of an
10 electrical shock in a state courtroom, done at the bequest of
11 a judge to a marshal to do this. This is why it is a federal
12 offense, because it is a public official acting under color
13 of law to deliver the shock.
14 It is clear from looking at the tape that Mr. King-
15 Ali was not responsive to the Courts direct instructions and
16 questions. Mr. King-Ali was attempting to put on the record
17 an objection to the jurisdiction of the court. This is
18 something that I think all members of the Federal Court have
19 experienced. I know I have several times.
20 I do note from the tape that there was no attempt
21 to flee from the courtroom. There was no assaultive
22 behavior. Nor did Mr. King-Ali appear in any way to be
23 physically disruptive. He was in essence not being
24 responsive to the Judge in his questions.
25 When the electric shock was administered it is

jmm 34
1 clear that it was very painful. From the audio you can hear
2 the scream. You can see Mr. King-Ali fall to the floor. And
3 if you look at the entire tape he remains on the floor from
4 approximately 30 to 60 seconds before he is able to stand up.
5 The shock was clearly disabling.
6 The tape also shows that after about 60 seconds he
7 got up to his feet and he was escorted out of the courtroom
8 by several sheriffs deputies. The record from Charles
9 County also reflects that he was checked promptly by EMS from
10 LaPlata and there was found to be no injury.
11 I do acknowledge that there was a residual fear as
12 voiced by Mr. King-Ali that he would be shocked again and may
13 have impacted his ability to represent himself. Obviously in
14 this case the conduct is serious. The aggravating factor is
15 that it was caused by a public official during a proceeding
16 in a State courtroom.
17 And all judges are responsible for protecting at
18 all times the Constitutional Rights of all citizens that
19 appear before them, be they defendants, victims, witnesses,
20 or counsel.
21 With reference to the characteristics of Judge
22 Nalley, Mr. Bonsib has done an excellent job of presenting
23 Judge Nalleys background. I am aware, due to his efforts,
24 that Judge Nalley has been a member of the Maryland and
25 District of Columbia Bars for the past 47 years.

jmm 35
1 Judge Nalley in 1969, following graduation from law
2 school at Georgetown, enlisted in the United States Army. He
3 served a year tour of duty in Viet Nam where he was on the
4 ground in the Mekong Delta. His service was honorable and he
5 was discharged from the Army with a rank of Captain.
6 He has served as the Assistant, the Deputy, and the
7 elected States Attorney for Charles County. Following that
8 he was appointed by Governor Hughes to the District Court of
9 Charles County where he served for seven years. And
10 following that he was appointed to the Circuit Court where he
11 served for 25 years and an initial year in recalled status.
12 Mr. Bonsibs submissions show that he had served on
13 many judicial committees which would be consistent with a
14 person of his experience. He was also an active Rotarian. I
15 have been given 32 letters from mainly counsel, but other
16 people in the community attesting to his many community
17 activities. Including such things as providing scholarships
18 to the needy, participating in the Christmas in April program
19 where he fixed and repairs homes of those in need.
20 The Court also takes into account that he promptly
21 acknowledged his wrongdoing. Pled guilty. I think his
22 contrition is genuine. And he is also a husband, father, and
23 grandfather.
24 The Court also notes, however, that there was a
25 prior incident in 2009 dealing with a tire deflating in the

jmm 36
1 courthouse parking lot. With reference to the seriousness of
2 the issue, this basically concerns the importance of judges
3 in the entire judicial system.
4 And our system of justice depends on the citizens
5 faith and trust that judges will decide cases fairly and
6 impartially, free from any bias or prejudice. And out of
7 respect for the system of justice judges are accorded great
8 respect. And in turn they are required and are expected to
9 return that respect by all of those they interact with,
10 including parties to the dispute, the attorneys, witness,
11 jurors, court reporters, staff, and just members of the
12 public.
13 And judges do this by protecting Constitutional
14 Rights of individuals. By being polite and courteous. By
15 showing that you genuinely care about the matter being
16 presented. And showing that it is an important matter for
17 all of those involved. And that you are going to do the best
18 to get the decision that you have to make correct after
19 listening to all of the testimony in a careful and polite
20 manner. And anything that effects that is dangerous to the
21 administration of justice.
22 Other matters that I have to include include
23 deterrence, both specific as well as general. Specific
24 deterrence means would Judge Nalley do this again? And in
25 this case I think the matter is closed in that the Court of

jmm 37
1 Appeals of Maryland in September of 2014 decided that he
2 would no longer serve in a recalled status.
3 This obviously means that he no longer has the
4 ability or the authority to repeat this situation. There is
5 always the issue of general deterrence. That would mean to
6 other people in the community, specifically I guess to other
7 judges.
8 And once again, I think that the stigma of the
9 federal conviction that arises out of this proceeding, the
10 public embarrassment that is attendant to these proceedings,
11 as well as the foreclosure of the ability to continue to sit
12 in a recalled status, and economically to supplement a
13 judicial pension all is sufficient that no other members of
14 the bench would engage in conduct such as this.
15 I am also to consider protecting the public from
16 further crimes. But as I previously said, because the
17 ability to sit in a recalled status is no longer present I
18 think that has been taken care of.
19 We have looked at the Sentencing Guidelines. I
20 have explained them to you. And once again I refer back to
21 the fact that the Department of Justice, as well as the
22 Defendant, both have jointly recommended a one-year period of
23 probation. And I also need to decide whether or not there is
24 any need for restitution. I have been told by the Government
25 that there is no need for restitution in this case.

jmm 38
1 I therefore considered all of this and I find that
2 the most appropriate sentence is as follows. I will sentence
3 Judge Nalley as both the Department of Justice and Mr. Bonsib
4 have requested to a year of probation. Probation in the
5 federal system is usually always supervised. And this
6 probation will be supervised.
7 In addition to the standard conditions of
8 probation, such as to obey all laws, local, state, and
9 federal going forward, the Court will impose certain special
10 conditions. I am going to direct that he participate and
11 complete in an anger management program as deemed appropriate
12 by the Probation Office.
13 I am going to impose a fine in this case of $5,000.
14 This fine is to be paid in 10 equal monthly installments of
15 $500 during the first 10 months of probation. And the Court
16 will direct that it carry no interest.
17 The Court will also impose a special assessment as
18 I am required to by Congress of $25.
19 The Court will also direct that I am going to
20 dispense with any substance abuse testing during the period
21 of probation simply because there is no evidence of any need
22 to do that.
23 Those are the conditions of probation. Judge
24 Nalley, do you understand the conditions of probation?
25 THE DEFENDANT: Yes, Your Honor. I do.

jmm 39
1 THE COURT: Do you agree to abide by them, sir?
2 THE DEFENDANT: I will, sir.
3 THE COURT: Sir, I advise you that you do have the
4 right to appeal. And any appeal that you note must be done
5 within 14 days from the entry of judgment. I know that the
6 written Plea Agreement sharply limits your right to appeal,
7 but I am required to advise you that you do have the right to
8 appeal within 14 days of entry of judgment.
9 When this is completed, sir I do not believe the
10 Marshal needs to see you. I would ask that you go down to
11 Probation and to be installed on probation. When that is
12 done you and Mr. Bonsib and your family and friends are free
13 to leave the building.
14 Let me thank all for being in attendance. And we
15 will stand in recess for today.
16 MR. BONSIB: Thank you, Your Honor.
17 THE CLERK: All rise.
18 (Whereupon, the proceeding was concluded.)
19
20
21
22
23
24
25
jmm 40
C E R T I F I C A T E
I certify that the foregoing is a correct
transcript from the provided duplicated electronic sound
recording of the proceedings in the above-entitled matter.
Jacqueline M. McFarland 4/25/2016

Jacqueline M. McFarland Date
Certified Transcriber
Certificate No.: CET**227

8:16-Cr-00023-WGC Doc 16 - Maryland Federal Criminal Case - Sentencing Transcript

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Case 8:16-cr-00023-WGC Document 16 Filed 04/26/16 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT

BEFORE THE MAGISTRATE WILLIAM CONNELLY, Judge

APPEARANCES: KRISTI NOEL OMALLEY, Esq.

ROBERT C. BONSIB, Esq.

Audio Operator: Rita Sigona

Transcription Company: CompuScribe

Proceeding recorded by electronic sound recording,

Statement of Facts by Kristi OMalley, Esq.

Victim Impact Statement by Delvon King 17

Mitigation by Robert Bonsib, Esq.

Allocution by the Defendant 25

Comments by Donna Brennan 26

EXHIBITS FOR IDENTIFICATION IN EVIDENCE

KEYNOTES: --- Indicates inaudible in the transcript.

2 THE COURT: Let me call the case of the United

3 States of America versus Robert C. Nalley. This is Case

4 Number 16-23-WGC. The record should reflect that present in

5 the courtroom is Judge Nalley. He is joined by his retained

6 counsel, Robert Bonsib from Greenbelt, Maryland.

7 We are also joined by Kristi OMalley, the United

8 States Attorney assigned the matter. I believe that we are

9 also joined by Mary Hahn from the Department of Justice as

11 case agent in the matter.

12 Also joining us, do we have Mr. King-Ali present in

14 MS. OMALLEY: Mr. King-Ali is present. Yes, Your

16 THE COURT: Very well. And I believe Judge

17 Nalleys wife is also present.

18 The matter is called for sentencing following a

19 plea that was taken on February 1, 2016. If there is nothing

20 preliminary why dont I give the floor to the Government to

22 MS. OMALLEY: Thank you, Your Honor.

23 We are here before the Court today because Judge

24 Robert C. Nalley has pleaded guilty to a Federal crime, a

25 Deprivation of Constitutional Rights under Color of Law. The

1 Constitution protects every persons right to due process and

2 prohibits any government official from using unreasonable

3 force or force to retaliate against or punish any individual.

4 Judge Nalley violated the due process rights of a

5 pro se defendant who appeared before him in court in July of

6 2014. As I know is clear to the Court, the Defendant here

7 today to be sentenced is Judge Robert Nalley, not Delvon

8 King. In fact, Delvon King stands in this courtroom as a

9 victim whose rights have been violated by Judge Nalley.

10 I would like to outline for the record the facts

11 that underlie Judge Nalleys criminal violation of Mr. Kings

13 On July 23, 2014 Mr. King was exercising his

14 Constitutional Right to represent himself in a criminal

15 trial. Mr. King was on trial in front of Judge Bragunier,

16 but Judge Bragunier asked Judge Nalley to handle the voir

17 dire process for that trial.

18 Mr. King had a stun cuff placed on him as a

19 security measure by the Charles County Circuit Court Sheriffs

20 because the Court had a policy of not putting shackles on

21 defendants in jury trials.

22 When Mr. King was brought to Judge Nalleys

24 calmly prepared to defend himself at trial. When Judge

25 Nalley entered the courtroom and began to interact with

1 Mr. King Judge Nalley very quickly grew impatient with

2 Mr. Kings efforts to question the jurisdiction of the court.

3 Judge Nalley asked Mr. King a number of times what

4 he wanted to be called during jury selection and trial and

5 Mr. King repeatedly stated his name and referred to the