JUDICIAL COMPLAINT

CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY, IMPARTIALLY AND DILIGENTLY The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:

A.
Adjudicative Responsibilities.

(1) A judge should be faithful to, and maintain professional competence in, law and should not be swayed by partisan interests, public clamor, or fear of criticism.

The Circuit Judges, William J. Bauer, Richard A. Posner and John L. Coffey were neither faithful to nor maintained professional competence in law in their Order of March 19, 1984 entered in Case No. 82-2627 UNITED STATES OF

AMERICA, Plaintiff-Appellee vs. J. PATRICK DOHM, Defendant-Appellant in pertinent parts, to-wit:

On page 4, 2. The Indictment

The Circuit Judges attempt to paper over the gaping hole in the indictment, that is, the lack of the word knowingly (as mandated by US Attorneys Manual, Chapter 9, Section 1322) or other word or words of similar import by stating “This omission in the statute is clearly deliberative in view of the fact that interstate transportation ‘with unlawful or fraudulent intent’ is an element of the offenses defined in other paragraphs of Sec. 2314, cannot be further from the truth. The simple fact that the indictment clearly lacks the word of criminal intent, knowingly, as mandated by the US Attorneys Manual, Chapter 9, Section 1322, or other word or words of similar import, is patently not a matter for deliberation or debate and speaks directly to the Circuit Judges’ unfaithfulness and professional incompetence in law. It is impermissible to ‘borrow’ an essential element from one of

those crimes or any other crime in an attempt to revive the otherwise fatally defective indictment of another. And even if it were permissible to ‘borrow’ that word or words from any other section, they would have had to have been positively included in the indictment in question but was not.

The Circuit Judges’ assertion, citing United States v. Watkins, 709 F.2d 475 (7th Cir. 1883), that “the indictment is to be read as a whole” belies the fact that the indictment in question consists of one sentence only and therefore unlike Watkins, with multiple different counts and sentences, cannot be read as a whole there being nothing else to read except the indictment itself.

The Circuit Judges’ statement, “Each count here clearly stated that Dohm was charged with knowingly obtaining by fraud Mortgage Associates drafts drawn on a Rhode Islands bank”,

is an egregiously false statement on its face and again speaks directly to the professional incompetence and unfaithfulness in law of the Circuit Judges. Nowhere in the indictment in question is this statement shown to have any credence or plausibility.

Additionally, their positive statement that “the indictment in effect charges Dohm with a knowing interstate transportation” is hollow, per se, for the fact that knowledge of a crime is not a crime; the indictment charges the appellant with the act of transporting and not having knowledge of a transportation. Besides, the Circuit Judges dismissed out of hand the Supreme Court rulings of United States v. Hess, 124 US 483, (1888) 8 S.Ct. 571, 31 L.Ed. 516 and United States v Carll, 105 US 611 (1881) the latter court ruling succinctly:

“In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty

or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; and the fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent” (emphasis mine), illuminating, once again, the Circuit Judges unfaithfulness and professional incompetence in law.

The Judgments of Conviction entered in the instant case after trial, one of “knowingly, willfully and unlawfully for transportation of securities obtained by fraud” and one of “knowingly, willfully and with unlawful and fraudulent intent, transporting falsely made and forged securities in interstate commerce” bear little or no resemblance to the contents of the indictment in question, bearing once again on the professional incompetence and unfaithfulness in law of the Circuit Judges.

In Stirone v. United States, 361 US 212, 216 (80 S.Ct. 270, 4 L.Ed.2d 252) the court said “Ever since Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, was decided in 1887, it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself. In holding that this could not be done, Mr. Justice Miller, speaking for the Court, said:
'If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed.'121 U.S. 1, 10, 7 S.Ct. 781, 786.

“It is axiomatic in our legal system that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him”. STIRONE v. UNITED STATES, 361 US 212, 217, 80 S. Ct. 270, 4 L.Ed. 2d 252 (1960)

RESPECTFULLY SUBMITTED

J. Patrick Dohm Rockford Illinois 6532 Spring Brook Road #303
Rockford, IL 61114
(815) 282-3184

US Circuit Judges Collude with Prosecutors and US District Court



Cast of Characters:

Magistrate Judge P. Michael Mahoney, U.S. District Court for the Northern District of Illinois, Western Division

Judge James B. Moran, U.S. District Court for the Northern District of Illinois

Dan K. Webb, former U.S. Attorney for the Northern District of Illinois and currently Partner, Winston & Strawn. LLP

Judge Richard A. Posner, U.S. Circuit Court of Appeals for the 7th Circuit

Judge John L.Coffey, U.S. Circuit Court of Appeals for the 7th Circuit

Judge William L. Bauer, U.S. Circuit Court of Appeals for the 7th Circuit

Scott Turow, attorney, novelist and media darling

Terrence F. MacCarthy, Executive Director of the Federal Defender Program for the Northern District of Illinois


TO: The Court of Appeals for the Seventh United
States Circuit

Appeal Case No. 82-2627

The United States District Court for the Northern
District of Illinois

Cause No. 82 CR 20003



It is with great reluctance and yes, with a sense of foreboding and trepidation that I find myself writing this letter. The reasons for doing so, however, are so compelling and go directly to the nature of our governmental system that they far outweigh any personal effects they may have upon me.

Please be advised at the outset that one of those reasons is not to reargue the case before the U. S. Court of Appeals for the Seventh Circuit – if indeed the opportunity was ever afforded me since the court, in the first instance, saw fit not to honor my Sixth Amendment constitutional right and guarantee to assistance of counsel on appeal, arbitrarily denied me the privilege to argue orally and steadfastly refused my reply brief to be filed, read and considered by the court, thereby effectively foreclosing my right of equal access to the appellate process – but to alert and urge upon those in authority to more responsibly utilize their due diligence, use more circumspection in their nominating and approving appointments to the federal district and appellate courts.

That the writer felt dismayed at the court’s vacuous conclusions in its Order affirming the U. S. District Court for the Northern District of Illinois, Western Division’s judgment in the instant case is the proverbial understatement of the year. A more accurate description would have to be utter shock and disbelief. The Order by the U. S. Court of Appeals for the Seventh Circuit is a showcase example of judicial sleight-of-hand, legal pettifoggery and downright intellectual dishonesty. For the court to have held, as it did in this case, that since the U.S. Congress did not by any words specifically and affirmatively assign any particular degree of criminal intent for the first paragraph charge of Section 2314, Title 18, United States Code, the court may, at its sole discretion and at will, select any degree of criminal intent or completely eliminate the question of criminal intent from that first paragraph charge, is a grievous and monstrous error of constitutional dimensions.

It is not for the judiciary to set the degree of criminal intent necessary for the conviction of a crime, made a crime by enactment of Congress. It is for the judiciary to apply those laws in light of past law, the common law, legislative intent and prior judicial decisions. None of this wealth of judicial knowledge and learning was ever applied or even considered by the court in its Order. It therefore assigned the degree or non-necessity of criminal intent without any legal foundation whatsoever. It is not the case that the court was without any legal and judicial guidance in the matter. A long line of U.S. Supreme Court decisions ranging from the progenitor case of U.S. v. CARLL to the modern day landmark of MORISSETTE V. U.S. as well as the Seventh Circuit's own U.S. v. BARCLAY were more than adequate to enlighten them.

Even if the court of its own volition could set the degree of criminal intent necessary for the charge which, of course, it cannot, none was charged in the specious indictment. Nowhere in the annals of either the American or English system of criminal jurisprudence do we find valid convictions without an allegation of some degree of criminal intent, either in exact words or words of similar import unless that crime has been relegated to a “public welfare” type of crime where no degree of criminal intent in the charge need be alleged or proved. Surely the U. S. Court of Appeals for the Seventh Circuit is not suggesting that since Congress left out exact words of criminal intent or words of similar import, the charge is therefore a “public welfare” crime and its violator may consequently be sent to prison for ten years and/or suffer a $10,000 fine.

The court also in its Order seems to have taken umbrage to the supposed fact that the writer has “rejected” three previous court appointed assistants of counsel. The court knows this to be an untrue statement. The established fact that one of the counsels was allowed to withdraw upon its own motion, without any of the writer’s participation, alone is enough to make the statement untrue. And the writer’s participation in the other two motions to withdraw court appointed counsel for good cause shown does not render the statement true. The court knows that the writer, in law, lacks any power or discretion to “reject” any court appointed counsel. Would or does the court suggest that a motion for court appointed counsel to withdraw for good cause shown is tantamount to a “rejection” or that the same motion is equivalent to a waiver? Whether the writer had made any number of motions for court appointed counsel to withdraw for good cause shown and, to use the court’s own phrase, “reject” them, the court upon each withdrawal is bound in law to appoint other assistance of counsel.

In addition, the court in its Order has charged the writer with “obfuscation” and with “interfering” with court appointed counsel. If the writer has indeed confused and stupefied the court with an elucidation of all the essential issues that had to be addressed by the court – but were not – in order to obtain substantial justice, and if the writer has “interfered” with court appointed counsel by insisting upon all his civil and constitutional rights by demanding that both counsel and the court give them their due attention then the writer, in all truthfulness, has no rejoinder.

And lastly, the Court has propounded a new and novel theory regarding the sufficiency of an indictment. The court proclaimed in its Order that the writer has “in effect” been indicted for this or that crime. The Court had undoubtedly taken its cue for this misguided notion from that of the opening statement of the prosecution at trial wherein the indictment was orally amended by stating no less than three instances in succession on pages 54 and 55 of the trial transcript that one, the indictment “overall charges the writer with fraudulently obtaining”, two, “in somewhat technical terms, the indictment charges that the writer fraudulently obtained and converted” and three, “Put another way, the writer is charged with fraudulently obtaining”. We here observe how hard the prosecution is laboring to beef up their concocted charges by attempting to paper over the gaping holes in the indictment by assuring the trial jury that the charge is in “somewhat technical terms” or “put another way” or “overall” it is this or that crime. The Court, by stating that the charge “in effect” charged the writer with a crime, has made it one of its own devising and has obviously sided with the prosecution. There is scarcely anything more elemental in criminal law, other than the necessity to allege and prove criminal intent: that an indictment is not subject to interpretation either by the prosecution or the Court and is not subject to change in any form unless done so by the Grand Jury. The indictment must stand alone and every word given its ordinary and plain meaning. The indictment must be construed most strictly, more strictly, in fact, than the strictest construction of a statute. Nothing may be inferred or implied. The prosecution knew and the Court knows that there are no crimes by implication and that by stating that “in effect” it says this or that or that “overall” it means something else – that is precisely what they have accomplished - created a crime by implication. This is a naked violation of the indictment by grand jury clause of the Fifth Amendment and the writer is constrained to declare it inexcusable and indefensible.


What possible reason or reasons can we ascribe to the Court’s evident and perverse prejudice and intransigence towards this writer? The fact that it does exist cannot now be doubted. Could these reasons have germinated from that amorphous “system” that is so commonly referred to whenever one is caught up in the cog-wheel of current federal criminal justice administration; that same “system” which effectively informs the adversary:

do not raise any genuine issues of law before the court, especially if you are without counsel, else you will be sent to a federal “medical facility” to have your head examined; do not raise any genuine issues of law before the court, especially if you are without counsel, because all will go easier for you and your family if you refrain from doing so? Is it this same “system” that allows those who are charged under oath of office to uphold and defend the constitution and laws of the United States to look the other way and conduct their business without those constraints? Will this same “system”, then, inevitably permit a complete reversal of our national heritage that “we are a nation under laws and not of men”? The federal judiciary is understandably zealous and covetous in guarding against encroachments of their vast discretionary powers but that fact should not lend itself to provide camouflage or a standing invitation to hold themselves above the law. Most legal writers and commentators agree that the worst possible abuse of discretion by the court is to not perform judicial duties assign to them by law, that is, by law enacted by the legislature or to grant, deny, affirm, reverse or issue orders and judgments without a firm or any foundation in law. It cannot now be gainsaid that the instant case provides a textbook example of these maladies.

While it may quickly become tiresome to a few and certainly embarrassing to all for the writer to have to recite the litany of nonfeasance of office, plain abuses of judicial discretion and prosecutorial misconduct in the instant case, it is nonetheless necessary to do so in order to fill in an accurate mosaic of an unparalleled incidence of the most abusive and vicious example of willful and malicious prosecutorial fraud ever perpetrated upon the federal courts and the most shameful example of subsequent judicial “stonewalling” and cover-up in the annals of American criminal jurisprudence.

This writer, having learned of the specious charges handed down by a grand jury as a result of a prior 22 month conspiracy among the U.S. Attorney’s office and other non-governmental parties to deprive the writer of his civil and constitutional rights and guarantees and which culminated in the gross abuse and unbridled manipulation of the grand jury process, moved for dismissal of the indictment at arraignment on the grounds that it did not state an offense. But for the obstinacy of the federal magistrate in refusing to transmit the motion, as required by law, to a federal district judge who alone had authority to rule on the motion, this case might well have come abruptly to an end shortly thereafter. Following the arraignment, this writer once again submitted his written motion to dismiss for failure to state an offense. The federal district judge who heard the case resolutely and unalterably refused to adjudicate the motion before trial without a showing of good cause as required by law in Rule 12(e) of the Federal Rules of Criminal Procedure. The federal magistrate at arraignment, moreover, chose to ignore the law as outlined in Title 18, Section 3006A, United States Code by refusing to appoint assistance of counsel as prescribed by the Plan adopted by the U.S. District Court for the Northern District of Illinois under the authority of said section, which Plan is the sole method, under law, for appointing assistance of counsel unless a federal district judge declares that an emergency exists and appoint counsel not under the Plan. There was no such finding of an emergency situation in the instant case. Rather, the magistrate chose to ignore the law and appointed assistance of counsel who, in fact, had little or no criminal law experience save past involvement in city ordinance violations or petty business offenses.


The federal district judge who heard the case then proceeded to engage in a number of stark abuses of discretion in that he failed to insure that the defendant had adequate and effective assistance of counsel as required by the Sixth Amendment of the U.S. Constitution and the laws of the United States; more specifically under the Plan adopted by the U.S. District Court for the Northern District of Illinois as required and sanctioned under the Criminal Justice Act and the Federal Rules of Criminal Procedure; by disparaging the writer’s ability and motives by “in effect” defending himself when “very able and competent counsel could have handled the defense for you” and attempting to belittle the writer for having “worked very hard on a lot of technical matters” when the judge knew or had every reason to know that the court had appointed woefully inadequate assistance of counsel and that as aptly said by the Bollenbach court, “All law is technical if viewed solely from concern for punishing crime without heeding the mode by which it is accomplished”. Bollenbach v. U.S., 90 L. Ed. 350 (1946); by working a particularly damning abuse of discretion in not allowing a motion for a Bill of Particulars which, although if granted would not have saved the phony indictment, would have at least spelled out in concrete and unambiguous terms the nature of the charges especially in light of the facts that the judge had even refused to entertain the pre-trial motion to dismiss for failure to state an offense, the judge’s allowing the prosecution to orally amend the indictment in front of the trial jury, the judge’s refusal to take note of the writer’s insistence that none of the acts alleged in the indictment were in violation of any law of the State of Illinois and since the charge in the indictment was one of state-federal cooperation and not distinctly a federal crime, the court was bound to apply the panoply of common law principles and the Illinois Criminal Statutes in determining if a crime as spelled out in the Criminal Code of the State of Illinois occurred in order to give rise to the federal interstate commerce nexus of interstate transportation. Instead of giving serious and probative consideration to the Bill of Particulars motion that well might have saved both the writer and the court an enormous amount of valuable time, the judge who heard the case merely shrugged off the entreaties of this writer and chose rather to accept and give succor to the prosecution’s inane rejoinder to the writer’s last ditch effort to discover the charges against him by asking, at trial, the nature of the fraud charges: “Oh, your honor, just good old-fashioned fraud!” Never mind considerations that it might amount to civil rather than criminal fraud. Never mind that fraud charges were not coupled with any allegations of intent to defraud. Never mind that a scheme to defraud was never alleged. Never mind that “just good old-fashioned fraud” does not come within the purview of the Criminal Code of Illinois nor the Federal Criminal Statutes. Top priority should be given to “moving the business through the courts” rather than having to contend with these nettlesome questions.


After having been compelled by force of circumstance to “in effect” defend himself from trumped up criminal charges in a federal district court, the judge who heard the case, after issuing constitutionally defective jury instructions based upon a prohibitive notion that an inference may be inferred from another inference – especially on the question of intent – which is succinctly explained in Sandstrom v. Montana, 61 L. Ed. 2D 39 (1979) – apparently deemed it fit and proper to enter an Order of Judgment and Conviction against the writer which was and remains wholly distinct from that “crime” alleged in the indictment or even from that orally amended at trial, or given in the jury instructions, or mentioned in the pre-sentencing report. The Order, read in light of the record, is void ab initio. The writer’s attempts by motion in the district court and by motion for a writ of mandamus in the appellate court to have it declared void were summarily rebuffed. On five separate occasions, then, the federal district court, in partnership with the U.S. Attorney’s Office, toyed with and bandied about four differently worded “indictments” at trial. None of the “indictments” constitutionally stated an offense. The court then entered a judgment of conviction that did state an offense but did not resemble in any measure any of the bandied about “indictments” nor that of the phony “indictment” handed down by the Grand Jury.


A total lack of awareness or regard by the court was encountered when a detailed and concise Motion in Arrest of Judgment was filed. The judge who heard the case failed to give it even a cursory reading and brushed it aside. Worse, the federal magistrate who is charged by law in Rule 1.72 (B)(2) of the General Rules of the U.S. District Court for the Northern District of Illinois, Western Division under authority of Rule 57 of the Federal Rules of Criminal Procedure and more particularly sanctioned by Title 28, Section 636(a)(1) and (B)(3), United States Code with the duty to conduct a preliminary hearing of all Western Division cases and then to submit a report and recommendation to the judge who heard the case, purposefully and decidedly declined to perform his duty under the law by refusing to implement said Rule. The writer sought relief by bringing a mandamus petition before the appellate court against the Magistrate for not performing the duty specifically assigned to him under the Rule and against the judge who heard the case for not deliberating upon the motion in arrest of judgment. The appellate court summarily denied the petition with the advice to take the matter up on appeal.


This writer then proceeded to do exactly what the appellate court suggested – take the matter up on appeal. Indeed, the writer submitted an appellant’s reply brief without benefit of requested court appointed appellate counsel that included numerous substantive and constitutional issues as assignments of error at the pre-trial, trial and post-trial stages.

The U.S. Court of Appeals for the Seventh Circuit chose not to address any of the aforementioned assignments of error, not even addressing the matter they themselves suggested be deliberated. The Court attempted to exculpate itself by stating that the assignments of error were not part of the record on appeal and that they were not to bother to look at the whole record nor of the record of the several collateral attacks made upon the judgment and of which they were all aware. The audacity of this pretext is all the more incredulous since the record shows that the Court refused to grant expansion of the record at the writer’s behest in those areas crucial to his appeal, even including those materials which were to be given upon request pursuant to General Local Rules of the U.S. District Court and went to extremes, in one instance, by reversing its own Order granting the writer grand jury material without a showing of good cause or any explanation whatsoever. In the interim, the Court was exacerbating their prejudice towards this writer by granting to the prosecution a wholesale and unlimited expansion of the record and nearly unrestricted extensions of time to file their briefs.


In other collateral attacks upon the judgment, an attack under Title 28, Section 2255, United States Code and under Rules 32 and 35 of the Federal Rules of Criminal Procedure both being for post-trial relief, the magistrate charged with the duty, as aforementioned, utterly rejected the notion that he must perform it. After petitioning the Court for a writ of mandamus to compel his performance, the Court took over 120 days to flatly deny the petition but only after the writer was forced to prod the Court, by motion, to answer the petition. In the latter motion attacking the judgment, the Court by order proffered the explanation to this writer that the magistrate’s calendar or docket was crowded and when cleared, the magistrate will perform his duty. After a very long length of time in which the magistrate surely had time to perform his duty, but did not, the writer felt compelled to motion both the magistrate to do his duty as previously suggested by the Court and the Court to remind the magistrate to perform his duty. To this very day a resounding silence emanates from both quarters.


The U.S. Court of Appeals for the 7th Circuit has demonstrated an animosity and prejudice towards this writer that can only be described as intractable and base. It is now highly doubtful that any active judge on the circuit’s bench had read or considered any of the writer’s briefs, motions or petitions. Their prejudice has reached such a frenzied state that mere mention of the writer’s name must trigger it. In a petition for writ of mandamus against the Circuit Court, filed in the U. S. Supreme Court and properly served on the parties, the Circuit Court chose to usurp the power of the Supreme Court by assigning a Miscellaneous case number of its own to the petition and then issuing its own Order denying the petition to the Supreme Court is a demonstrable fact that this is occurring. Given the appalling state of the administration of criminal justice in the 7th U.S. Circuit, this too will most likely be shunted aside as an “inadvertence”, “not prejudicial to the defendant” or even as “a discretionary act of the court".


The Circuit Court’s complete acceding to the inability of the U.S. District Court to administer its business efficiently and fairly, in the instant case, and employ the normal rules of law under the common law, its own rules, the Federal Rules of Criminal Procedure, the U.S. Code and the precepts of the U.S. Supreme Court which, after all, are the laws of the land, is incomprehensible to the person of average intelligence. Because the federal district court has lent its approbation to over twenty-two months of criminal conspiracy and skullduggery by the U.S. Attorney’s Office and other non-governmental conspirators before the case was in the district court, is all the more reason the Circuit Court ought to have employed, indeed, were required by law to employ the means at their ready disposal to bring quickly to an end this sham of criminal judicial administration.

JUDICIAL COUNCIL OF THE SEVENTH CIRCUIT U S COURT OF APPEALS

COMPLAINT OF JUDICIAL MISCONDUCT

CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY, IMPARTIALLY AND DILIGENTLY

The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:

A. Adjudicative Responsibilities.


(1) A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.



Name of Complainant: J. Patrick Dohm

Contact Address: 6532 Spring Brook Road, #303
Rockford, IL 61114

Daytime telephone: 815-282-3184

Name of Judges: William J. Bauer, Richard A. Posner, John L. Coffey
James B. Moran (deceased)

U. S. Attorney: Dan K. Webb


Courts: U.S. Circuit Court of Appeals for the Seventh Circuit
U. S. District Court for the Northern District of Illinois,
Western Division

Does this complaint concern the behavior of the judges in a particular lawsuit or lawsuits? Yes


Case Number: 82 CR 20003

Docket number of any appeal to the Seventh Circuit 82-2627

Were you a party or lawyer in the lawsuit? Party






Have you filed any lawsuits against the judge? No

Brief Statement of Fact. See Attachment


Declaration and signature:

I declare under penalty of perjury that the statements made in this complaint are true and correct to the best of my knowledge.






/s/ J. Patrick Dohm September 1, 2012

DENIED

ScanA

Are the 7th Circuit Court Justices smarter than a fourth grader? Not.

 Are the U.S. Seventh Circuit Court of Appeals Justices Smarter than a Fourth Grader?  Evidently not. 

The ruling by the circuit court in this case was issued as an order rather than as an opinion.  As an order,  it is not published in any of the legal reporting systems and cannot be cited in any legal document or proceeding. 

I have motioned the court to have the ruling reissued as an opinion pursuant to rule.  If the court grants the motion,  the opinion will then be accessible to anyone having access to a law library.

 Stay tuned.

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

From the U.S. District Court

for the Northern District of Illinois,

Western Division

Case No 82 CR 20003

Judge James B. Moran

United States of America,

     Plaintiff-Appellee

             vs.

J. Patrick Dohm,

    Defendant-Appellant

Appellate Case No. 82-2627

MOTION TO CHANGE STATUS OF
UNPUBLISHED ORDER
Pursuant to Federal Rule of Appellate
Procedure 32.1(c)

NOW COMES the Defendant-Appellant, J. PATRICK DOHM, pro

se, moving the court to reissue its Order, entered in the above 

entitled cause on March 19, 1984,  as an opinion pursuant to 

Federal Rule of Appellate Procedure 32.1(c) and (d).


IN SUPPORT THEREOF Defendant-Appellant cites the following 
facts and circumstances:

On March 19, 1984 the court issued its Order with a stamp stating:

“UNPUBLISHED ORDER NOT TO BE CITED PER CIRCUIT RULE 35”.
 

Under current Federal Appellate Rules no order of the court, issued before January 1, 2007, may be cited except to support a claim of preclusion or to establish the law of the case from an earlier appeal in the same proceeding.  Federal Rules of Appellate Procedure 32.1(d).

This change would be appropriate for the following reasons:

 A.  The core ruling, cited on page four of the Order is the following, to-wit:

"Dohm argues that the indictment is fatally defective in that it fails to charge that he had criminal intent to transport the bank drafts in interstate commerce.  This formulation, however, 
follows the language of the statute which does not require that 
any particular mental state be associated with transporting the 
converted property.  Congress apparently intended  to write the 
first paragraph as it did, and we will not subvert that intent by 

implying an element specifically excluded."  

This is a ruling,  with all its implications,  not reflective of any case in any of the federal circuit courts, including the 7th Circuit.  

None of the circuits, including the 7th Circuit, subscribe to the notion that a criminal indictment is nonetheless sufficient if it tracks the language of the statute without the necessity of adding words of criminal intent or words of similar import if the statute is silent in that respect.  

And attempting to supply that essential element of intent
by referring to the predicate phrase in the statute, to-wit:
“knowing the same to have been converted and taken by fraud”
fails the mark because the gravamen of the crime is interstate
transportation, not fraud.  

In addition, the attempt to resurrect the indictment by stating 
“that the indictment in effect chargers Dohm with knowing 
interstate transportation” is tantamount to trying to infuse the indictment, by inference, interpretation or implication, with a word of criminal intent.  This fails, in any case, because, the word knowing is either a noun or an adjective and cannot be used as an adverb modifying the verb to transport.
(emphasis mine)




B.  Because of the forgoing, the ruling of the 7th Circuit has

set a new precedent for it’s own circuit and has provided a 

conflict, vis-a-vis this ruling, with the remaining circuit courts.

        

          WHEREFORE,  the defendant-appellant prays that the 

court will rule favorably on his motion and direct that the Order 

of March 19, 1984 be reissued as an opinion.


RESPECTFULLY SUBMITTED




J. Patrick Dohm                          
6532 Spring Brook Road #303
Rockford, IL 61114
(815)282-3184





                                      PROOF  OF  SERVICE


This is to certify that the undersigned personally delivered during regular business hours an exact copy of the Motion herein to the office of the U. S. Attorney in the Federal Courthouse, 327 S. Church St., Room 3300, Rockford, IL 61101 on Wednesday, April 18, 2012.

 

J. Patrick Dohm