aR^ IiNAL
IN THE SUPREME COURT OF OHIO
74
10
State of Ohio, On appeal from the First Appellate Dist. Of Ohio
Plaintiff-Appellee
CaseNo: C-090514
V.
Amar Gueye,
Defendant-Appellant
NOTICE OF APPEAL
Amar Gueye
799 E. McMillan St. B104
Cincinnati, Ohio 45206
513-254-4451
Jennifer Bishop
Assistant City Prosecutor
Counsel for the Appellee
Room 226
801 Plum Street
Cincinnati, Ohio 45202
513-352-3344
DD
OEC 14 20,0
DEC 1 4 2010
CLERK OF COURT
SUPREME CUURI OF OHIO
sUPRE,^ C^U^ ^onr^i^
IN THE SUPREME COURT OF OHIO
APPEAL NO. C-090514
STATE OF OHYO5
TRIAL NO. C09CRB12697
Plaintif9 AppeIlee,
V.
AMAR GUEYE,
Defendaaat- Appellant,
MEMORANDUM IN SUPPORT OF JURISDICTION
BASED ON U.S. AND OHIO CONSTITUTION
APPEAL FROM THE FIRST APPELLATE DISTRICT OF OHIO
Amar Gueye, Appellant
799 E. McMillan ST B104
Cincinnati, OHIO 45206
513- 254-4451
Jennifer Bishop,
Assistant City Prosecutor
Counsel for Appellee
Room 226, City Hall
801 Plum St. Cincinnati, OH 45202
513-352-3343
Certificate of Services
Appellant hereby testifies that a true copy of this memorandum has been served to the prosecutor
of the city of Cincinnati at 801 Plum Street, Room 226,City Ilall Cincinnati, Ohio 45202 on
12/14/2010.
Amar Gueye
.,G,,.cuv ae1
TABLE OF CONTENTS
I.
H.
HL
IV.
V.
P2
TABLE OF CONTENT
P2
TABLE OF AUTHORITIES
P4
STATEMENT OF THE CASE
P4
PROCEDURAL POST URE
P5
STATEMENT OF THE FACTS
VI.
ASSIGNMENT OF ERRORS & ARGUMENTS
P9
VIL
APPELLANT'S PROPOSITION OF LAW
P11
VIII.
IX.
Pil
CONCLUSION
P14
CERTIFICATE OF SERVICE
TABLE OF AUTHO IES
PAGE NO.
CASES
SILVERTHOME LUMBER CO. V. UNITED STATES, 251, U.S. 355,1920 P4
BASTON V. KENTUCKY, 476, U.S(1986) P5
STRAUDER V. WEST VIRGINIA P5
OHIO RULE 2947.06 & C 'LINAL RULE 32.2 P7
OIIIO RULE 2953.05 & 2929.20 P8
2
SATTERLEE V. WOLFENBARGER
P9
WEEKS V. UNITED STATES, 232, U.S. 383-34- S. CT, 341, 58 L.E.D 652 (1914)
P9
MAPP V. OHIO
BRAM V. UNITED STATES, 1987,168. U.S. 532, 543-544,18 S. CT.183, 42-L.E .D
P9
ROCHIN V. CALIFO RN IA
P9
COLUNIDIIS V.FO ST(1987)
P11
STATE V. BENTON (2000)
Pi1
P11
STATE V. ANDERSON
STATE V. BENSON -152. OHIO APP. 3D -495-2003, OHIO,((1944)
PI l
BRADY V. MARYLAND (1963), 373- U.S. 83-87
P1.1
CONS'I'ITUTIOPIAI. PROVISIONS
FIFTH AMENDMENT, UNITED STATES CONSTITUTION
P11
FOURTEENTH AMENDMENT, UNITED STATES CONSTITUTION
P11
ARTICLE I, SECTION 16, OHIO CONSTITUTION
Pi l
P12
CERTIFICATE OF SERVICE
3
III.STATElVIENT OF THE CASE
Sheriff officer James Mclure wrongfully searched defendant and his brief case without a search warrant,
wrongfully detained and wrongfully arrested defendant without reading him his Miranda rights. Sheriff
Officer McLure also lied by falsely accusing defendant of having a warrant. Defendant did not have a
warrant. Trial court erred for convicting defendant based on the doctrine of fruit of the poisonous tree
and the doctrine of exclusionary rules.
IF7o PROCEDURAL POSTURE
Defendant was wrongfully convicted by judge David Stockdale of Hamilton County Iv2unicipal Court
based on illegal evidences viciously gathered by Sheriff officer James McLure and maliciously
presented by the Cincinnati City Prosecutor , Jemiifer Bishop who spent the entire trial taking drags.
Please see Silverthome Lumber Co. v. United States, 251 U3-385, (1920) and Wong Sun v. United
States, all dismissed based on the doctrine of Fruits of Poisonous Tree. Sheriff Officer McLure failed to
obtain a searcli warrant before searching defendant and his brief case. Additionally, Sheriff Officer
McLure willfully and wantonly detained defendant for about one hour after illegally arresting him
without reading him his Miranda rights. Worst, Sheriff Officer MeLure lied and falsely accused
defendant of having a warrant. Defendant did not have a warrant. The trial court only relied on Sheriff
Officer McClure's false accusation to convict Defendant. Even the audio tape played in court by officer
Mclure did not support his false accusation because the audiotape did not produce any statement from
defendant regarding his naiue or his date of birth. The audio tape presented by Officer James McLure
only proved that defendant insisted not to make any more statement since Officer McLure deliberatelv
wrote some wrong information and falsely accused defendant of having a warrant. Defendant who did
4
not carry his state driver's license gave to officer McLure his membership card of the American
Association of Justice when asked to provide his name instead of saying anything to officer McLure in
order to avoid further misrepresentation. Defendant also wrote his correct date of birth on the white
napkins given to him by Officer McLure who intentionally confinued to detain him and hand cuffed him
for no reason even after verifying that defendant did not have any criminal record. At trial, defendant
moved for dismissal based on the doctrine of Exclusionary Rule of Evidences and the fruits of the
poisonous tree but the trial court maliciously convicted him by failing to allow him present his evidences
and his witnesses to testify. Trial court erroneously convicted defendant with an all white jury of eight
people who were improperly instructed by the judge to get a unanimous decision. Please see Batson v.
Kentucky, 476, U.S. 79, (1986) and Strauder v. West Virginia based on the lack of Equal protection
Clause.
V.STATEMENT OF THE FACTS
Defendant, an African Ainerican Muslim from Senegal with an African accent, was working at an old
computer station at the Cincinnati public library. A around 5:30 PM, the library announced that it will
close at 6PM. Defendant could not finish his work on the old computer. Therefore he rushed to the new
computers at the youth section to ask the librarian Martha Earls if he could finish his work. Martha
Earls said to defendant that he could use any free computer. Defendant went to a free computer to log on
and a young man came to sit on the chair. Defendant turned around to look for another vacant computer.
Renee Tacco, an African American woman whispered something to Martha Earls and she charged at
defendant, asking him to get out of the section. Defendant, shocked, surprised and confused for the fact
that Martha Earls gave him the permission to use any vacant computer and suddenly asked him to leave
the section could not understand Martha Earl's flip-flop?
5
Defendant took his brief case and walked toward the elevator. When he arrived next to the elevator, a
lady by the name of Mendisa Bolton explained that she finished with the fifteen minutes computer and
defendant could use the station. Defendant thanked her and started to log on the fifteen minutes
computer. Martha Earls called the security guard. Defendant who did nothing wrong felt compelled to
wait for the security guard and see what is the malicious reason behind this entire conspiracy? When the
white security guard came, he was followed by Sheriff Officer James McLure, a white officer with a
very hateful demeanor. Martha Earls stated that Defendant was using an occupied computer and talking
to unknown teenagers. Defendant objected to such a lie and asked to have Martha Earls' name. Sheriff
officer James McLure asked to seen defendant's driver's license. Defendant explained that he does not
carry his driver's license when he is not driving due to a passed Identity theft but he would be happy to
find some other IDs with his personal information. Sheriff officer Janles McLure asked defendant to
spell his name for him. Defendant spelled correctly his entire name. Officer McClure who did not even
verify defendant's name yet told defendant that he had a warrant then asked defendant to provide his
date of birth. Defendant gave him his correet date of birth. Sheriff Office McLure who was in a real
hurry to incriminate defendant somehow spelled defendant' last name with a T rather than a G and
called on his radio to verify defendant's information. When Officer McLure wrongfully pronounced
defendant's last name, he corrected him by saying that his last name starts with a G as the seventh letter
of the alphabet and not T. Officer McClure accused defendant again of giving him a false date of birth
day with the month of July when he searched defendant's brief case without his consent and found his
license for conceal a carry. Defendant later found out during trial that Sherriff officer McLure was just
frightened by the conceal and carry license because McLure said during the trial that he fears for his
life. On April 16, 2009, the day of the incidence, even though defendant mentioned to Sheriff officer
McLure that he did not have his weapon on him, Sheriff officer McLure decided to search him and his
6
brief case and wrote some fraudulent charges of obstruction of official business. Defendant who is the
spokesperson of Binafou Simpara in the Federal law suit against Hamilton County and others considers
Sheriff's officer McClure's action as a mere act of retaliation and blatant expression of his unfounded
fear because defendant did carry any weapon. Defendant was victim of a vicious criminal assault by
some culprits who attack him from behind and fled the scene during the month of Ramadan while he
was fasting. Therefore he obtained a license and a weapon to protect himself.
Bimanous Simapara is an African Muslim who played soccer and wanted to join the U.S. Soccer team.
Simapara was wrongfully locked up for filing a complaint against SGT Lambert of Cincinnati Police
department and then rendered paralyzed from neck to toes inside the Hamilton County Correctional
department by another inmate. Simpara sued the Hamilton County Sheriff departinent, the Hamilton
Coiulty municipal Court, The Hamilton County prosecutor's office, the Cincimrati Police and the
Hamilton County public defender's office for ineffective legal counsel. Defendant is the spokesperson of
Simpara and has faced numerous retaliations since 2005 including the impounding of one of his vehicles
premium
and the buming of another last vehicle. Simpara's legal action has increased the entire
malpractice insurance for attorneys in the state of Ohio.
Pursuant Ohio Revised Code, rule 2947.06 or 2951,03 or criminal Rule 32.2, any presentence, medical
or investigative record submitted to the court before the sentence was imposed must be included in the
record to be reviewed in connection with appeal of sentence in order for the review to comply with Div.
(D)(3) of Section 2951.03. In this case, Defendant suburitted multiple times an affidavit of indigency
for the record of trial court transcripts and the appeal court denied his requests. Defendant's
gross income for last is less than 400 doIlars.
Additionally, the appeal court must take into consideration any oral or written statement made to or by
the court at the time sentencing hearing at which the sentence was imposed. In this case, the appeal court
7
has overlooked or deliberately disregarded defendants multiple motions by denying his request of
transcripts and his affidavit of indigency submitted to the court.
Furthermore, pursuant to Ohio Rule 2953.02 of Review of judgrnents on appeals, in any capital case in
which a sentence of death is imposed for an offense conunitted before Jan 1,1995, and in any other
criminal case, including a conviction for the violation of an ordinance of a municipal corporation, the
judgment or final order of a court record inferior to the court of appeals may be reviewed in the court of
appeals.
Pursuant to Ohio Rule of law 2953.08 , Appeal as a matter of right, grounds, in addition to any other
right to appeal, and except as provided in division(D) of this section, a defendant who is convicted of or
pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant if:
- The sentence is contrary to the law
-The appeal eourt has overlooked any written findings that it was required to make in connection with
the modification of the sentence pursuant to a judicial release under division(l) of section 2929.20 of the
Revised Code; the court hearing an appeal under division(A), (B) or (c) of Section 2929.20 shall review
the entire record, including finding underlying the sentence or modification given by the sentencing
court. Defendant lost his mother, aunt and cousin and traveled to Africa by borrowing money.
Defendant who at the time of the appellate court's decision was sick during a trip to Africa where he
stayed for six months hereby requests all the protection, accommodation and relief deemed necessary
including extension of time by this present motion set forth to grant his request of reconsideration as the
court virtually implemented in cases of time sensitive and extraordinary circumstances.
Additionally, App. R. 14 (B) does not place any time limit on a court's discretion to grant delayed
reconsideration of a decision where there are extraordinary circumstances. The Supreme Court specific
8
identification of the 1 st District's 2002 ruling in Palmer's case as a legal error justifies its grant of
delayed reconsideration. See State of Ohio v. Toby Palmer, case no. 2008-2047
Pursuant to Rule 5, notification of lack of trancript or nairative statement, App.R. 11(B) notice,
Counsel for the appellant need not file the statement required by paragraph (A) if the docket statement
(see Loc.R. 4) indicates that no transcript or narrative statement is already part of the record. Please
see Satterlee v. Wolfenbarger, 453-3d. 362 (6th Cir. 2006), D'Ambrosio v. Bagley, No. 00-CV-2521;
State v. D'Aanbrosio No. CR-88-232189B.
VI- ASSIGNMENT OF ERRORS & ARGUMENTS
-First Assignment of Error: The trial court erred by refusing to allow defendant to prescnt his
evidences and his witnesses.
Defendant requested in writing on April 16, 2009 the copies of the audio and video tapes of his
encounter with Sheriff officer James McLure but the Hamilton County Public Library, the Cincinnati
Prosecutor and, Jennifer Bisliop all failed to produce the evidences and the trial court refissed to admit
the evidences in court. These evidences were not destroyed by an act of God but with an ax of grind by
the court and the Cincinnati city Prosecutor.
-Second Assignment of Error: Trial Couit erred in allowing illegal evidences.
Based on the doctrine of Exclusionary rule of evidences, the ruling in Weeks v. United States, 232, U.S.
383, 34 S.Ct, 341, 58 L.E.D 652 (1914), barring use in Federal Prosecution of evidences seized illegally
by Federal Officers is equally binding up on states. Please See Mapp v. Ohio,; Bram v. United States,
1897, 168 U.S. 532, 543-544, 18 S.Ct.183, 187, 42 L.E.D and Rochin v. California.
9
Officer McLure willfully violated Defendant's fourth and Fourteenth Amendment Rights by falsely
accusing him of having a warrant and searching him and his brief case without a search warrant.
- Third Assignment of Error: Trial Court failed to disnriss the case for lack of due process.
The Cincinnati Assistant Prosecutor named Brian Leurck # 0068739 deliberately lied by writing
verbatim that "Having fully complied with Discovery under Ohio Criminal Rule 16(B)," The fact is that
the Cincinnati City Prosecutor's office nor Jennifer Bishop did not provide any of the documents,
evidences, audio, video tapes and witnesses requested by defendant before or during the trial and
therefore flagrantly failed to comply with Discovery under Ohio Criminal Rule 16(B). As such, the
Cinciimati Prosecutors are guilty of malfeasance and misfeasance and this case must be dismissed as a
matter of law.
-Fourth Assignment of Error: Defendant who represented himself as a pro-se changed the case from
bench trial to a jury trial, subpoenaed his witnesses and wrote his motiori to disqualify Judge David
Stockdale for bias and prejudice against African iVluslims. Defendant later decided to travel when
informed about the death of family members. Therefore, he contacted the Hamilton County Public
Defender's office for representation and his case was assigned to William Terry Tranter who met with
him and informed defendant about a trial date. Defendant who did not quite trust the Hamilton County
Public Defender's office postponed his trip to witness the trial. On the trial date, defendant was informed
surprisingly by William Terry Tranter that the Prosecutor's office failed to provide the documents and
evidences requested for discoveries and that he cannot do the trial as scheduled on July 13, 2009.
Defendant gracefully represented himself on July 13, 2009. The irony here is that Judge David
Stockdale who refused to recuse himself from the case for prejudice and bias against African Muslims
(Judge Stockdale unjustly convicted Simpara again in 2006 while Simpara is on a wheel chair and
acquitted the other party accused of fighting with Simpara. Defendant protested on behalf of Simapara
10
that the Bench trial and the conviction of Simpara by Judge Stockdale were unlawful). Worst, Judge
Stockdale failed in this case to allow defendant a continuance to subpoena a second tiine his witnesses
since the public defender William Terry Tranter has deliberately failed to subpoena defendant's
witnesses for the jury trial of July 13, 2009.
-Fifth Assignment of Error: The State of Ohio maliciously obtained tactical advantage by destroying
evidences.
Defendant was deprived of a fair trial by the trial court that failed to allow him to present his evidences
and his witiiesses. Please see Columbus v. Forrest, (1987), State v. Benton (2000), State v. Anderson, 1'`rt
Dist. No C-050382, 2006-Ohio 1568, State v. Benson-152-Ohio App.3d 495-2003-Ohio 1944.
VILAPPELLAIVT'S i'ROPOSI.'I'IOi`Z OF LAW:
If the state destroys evidences after the defendant has made a discovery request, the burden of proof
shifts to the state to prove that the evidence was not materially exculpatory. If the state fails to meet its
burden, the case must be dismissed. Fifth and Fourteenth Amendments to the United states Constitution,
Section 16, Article I of the Ohio Constitution must be reinforced and fully applied in this case. Please
see Brady v. Maryland (1963), 373.U.S .83-87
VIII-C£9AtCLIISION
Constitutional jurisprudence has long recognized that favorable evidence, which is material to either
guilt or punishment, must be disclosed by the state upon request. Additionally, the doctrine of due
process clause commands the state to produce materially exculpatory evidences with or without request
by the accused. Judge David Stockdale's conviction of the Hon. Amar Gueye, (Chairperson of the Board
of Directors for The Islamic American Law School Institution, the spokesperson of Binafou Simpara in
Simapara v. Cecil Bailey et al in the Southern District of Ohio) is nothing but retaliation and a bad
11
faith decision. Sheriff officer James McLure did not follow official guidelines and acted maliciously to
mislead the court. At the end, the conviction is not demonstrative of the totality of the circumstances
therefore constitutes a due process violation and warrants a dismissal of this case.
The Honorable Amar Gueye , who is dabbling with his endeavors to build the First Islamic American
Law School Institution for Comparative religious studies and non-Violence has filed a legal action
against Sheriff officer James Mclure and The Hamilton County Public library for banning hiln for sixth
Appellant wants to
months from the Library based on Apartheid tactics, retaliatians and conspiracy.
incorporate on the record that the Hamilton County Appellate division has unconstitutionally overruled
his multiple requests of waiver of fees for the transcripts of the trial. When Appellant contacted the court
reporter's office on November 6, 2009, Mrs. Jeri Brelnn told him that Dana Ray is the court reporter in
the case. Appellant contacted the Court reporter in Judge Stoekdale's chamber and Dana said to
appellant that she received a call from the Appellate court last month and she was told that defendant's
appeal was dismissed because he did not face any jail time therefore the Appellate Division will not hear
his case. Such a decision from the Appellate Division will cause another Federal investigation from The
U.S. Department of Justice and ground for another legal action.
Defendant hereby appeals this court's decision and asks for a reconsideration for the following reasons:
Pursuant Ohio Revised Code, rule 2947.06 or 2951.03 or criminal Rule 32.2, any presentence, medical
or investigative record submitted to the court before the sentence was imposed must be included in the
record to be reviewed in connection with appeal of sentence in order for the review to coinply with Div.
(D)(3) of Section 2951.03. In this case, Defendant submitted multiple times an affidavit of indigency for
the record of trial court transcripts and the appeal court denied his requests. Defendant's gross income
for last year is less than 400 dollars.
12
Respectfully submitted,
Amar Gueye ^
J' ' ^ r3v
^',
Certificate of Service
Appellant hereby testifies that a true copy of this memorandum is served to the Cincinnati City
prosecutor's office at 810 Plum Street, Cincinnati, Ohio 45202 on December 14, 2010.
Amar Gueye
J'
13
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
APPEAL NO. C-o9o514
TRIAI. NO. C-ogCRB-i2697
STATE OF OHIO,
Plaintiff-Appellee,
^""
_ ^kENT ENTRY.
I1\I'^I
vs.
AMAR GUEYE,
rAy 2 620l0
Defendant-Appellant.
We consider this appeal on the accelerated calendar, and thisjudgment entry is
not an opinion of the court.,
Defendant-appellant Amar Gueye was arrested and charged with obstructing
official businessz for an incident that occurred at the main branch of the Public
Library of Cincinnati and Hamilton County. He proceeded to trial without counsel.
A jury found him guilty of the charge, and he was sentenced to pay a$50o fine plus
court costs.
In his appellate brief, Gueye gives a detailed account of the proceedings below
and raises five assignments of error: (i) "The trial court erred by refusing to allow
defendant to present his evidence and witnesses"; (2) "Trial Court erred in allowing
illegal evidence"; (3) "Trial Court failed to dismiss the case for lack of due process";
(4) the trial court improperly scheduled the matter and in other ways demonstrated
its prejudice toward African Muslims; and (5) "The State of Ohio maliciously
obtained tactical advantage by destroying evidence."
See S.Ct.R.Rep.Op. g(A), App.R. n.x(E), and Loc.R. 12.
^ R.C. 2921,3x.
OHIO FIRST DISTRICT COURT OF APPEALS
Gueye has not filed a transcript of the proceediags below, nor has he filed a
suitable substitute as permitted by App.R. g. Without a transcript or its equivalent, it
is not possible for this court to consider Gueye's arguments. When portions of the
record necessary to resolve the assigned errors are oniitted, this court has no choice
but to presume the validity of the lower court's proceedings 3
For this reason, we overrule Gueye's five assignments of error and affirm the
judgment of the trial court.
A certified copy of this judgment entry is the mandate, which shall be sent to the
tltial court under App.R 27. Costs shaIl be taxed under App.R. 24.
HILDEBRANDT, P.J., DINKELACIKER and MALLORY, JJ.
To the Clerk:
Enter upon the Journal of the Court on May 26, 2010
per order of the Courf,^
-"re ng Judge
ENTERID
MAY 2 6 2010
3 See McComas v. Ace Reporting, ist Dist. No. C-o701o3, 2ooq-Ohio-62i6, at ¶7, citing Knapp v.
Edwards Laboratories (x98o), 61 Ohio Stsd 1.97, 40o N.E.2d 384.
2
IN THE COURT OF APPEAIS
FIRST APPELI.ATE DISTRICl OF OHIO
HAMILTON COUNTY, OHIO
i
STATE OF OHIO, APPEAL NO. C-090514
TRIAL NO. Co9CRB12697
Appellee,
v,, ENTRY OVERRULING REQUEST
OF RECONSIDERATION (SIC)
AMAR GUEYE,
IIY1^0q',^Pitly
NOV - s zoto
Appellant.
This cause came on to be considered upon the appellant's request of
reconsideration (sic), which the Court regards as an application for reconsideration
under Appellate Rule 26(A).
The Court finds that the application is not well taken and is overruled.
^------ --l
N
D90639007 ^
To The Cierk`: - J
Enter upon the Journal of the Court on 3 2Alber order of the Court.
gy. (Copies sent to all counsel)
Presiding Judge
r^