Federal Courts

Petition for Coram Nobis

2009-09-02T20:29:00.001-05:00

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No: 82 CR 20003

J. PATRICK DOHM

Defendant

MOTION IN THE NATURE OF A WRIT

OF ERROR CORAM NOBIS

PURSUANT TO 28 USC 1651(a)

J. Patrick Dohm, pro se

6532 Spring Brook Road, 3303

Rockford, IL 61114

815-282-3184

NOW COMES the Defendant, J. PATRICK DOHM, pro se, pursuant to 28 U.S.C. 1651(a), moving the court, in the nature of a writ of error coram nobis, to quash the indictment in the above entitled cause for being prima facie fatally defective.

JURISDICTION

Jurisdiction for this motion rests with 28 U.S.C. 1651(a).

In support of his motion the defendant states the following.

FACTS AND CIRCUMSTAMCES

1. On February 19, 1982 the defendant was indicted by a grand jury in the United States District Court for the Northern District of Illinois, Western Division, Rockford, IL for allegedly violating 18 U.S.C. 2314, first subsection. The indictment consisted of five separate counts all worded in the same manner except for variations describing the object transported. (Exhibit A)

2. A trial proceeded based upon the indictments described in Exhibit A, noted above. Judgments of Conviction were issued by the court on September 28, 1982 (Exhibit D) and on December 5, 1984 (Exhibit C).

3. The defendant made attacks on the indictment’s sufficiency prior to trial and during trial but was rebuffed.

4. The defendant avers that the indictments are prima facie void for not including all the essential elements of the crime proposed to be charged. Although the indictments track the language of the statute, 18 U.S.C. 2314, first subsection, the element of criminal intent is lacking for the gravamen of crime, interstate transportation.

5. Neither the Judgment of Conviction noted in Exhibit D above nor the Judgment of Conviction noted in Exhibit C above reflects the wording of the indictments in any manner. The Judgment of Conviction seen in Exhibit C is based upon allegations that might be made pursuant the third subsection of 18 U.S.C. 2314, not the first subsection. The Judgment of Conviction seen in Exhibit D is based upon the first subsection but conveniently adds three words, knowingly, willfully and unlawfully, each denoting criminal intent, which are absent in the indictments. Also, the necessary essential words of interstate commerce is absent from the Judgment of Conviction as seen in Exhibit D.

6. The defendant avers that because the indictments are inherently and intrinsically void ab initio and could not be made whole by any proceedings at trial without first submitting them to the grand jury, they must of necessity be quashed. As a concomitant to this averment, the Judgments of Conviction must be declared null and void and of no force or effect.

7. The defendant avers that because of the forgoing, his personal rights guaranteed to him under the Fifth Amendment – “No person shall be held to answer for a . . . . . . infamous crime, unless on a presentment or indictment of a grand jury, . . . . . . nor be deprived of life, liberty, or property, without due process of law” and the Sixth Amendment – “In all criminal prosecutions, the accused shall enjoy the right . . . . . . to be informed of the nature and cause of the accusation” - to the United States Constitution have been denied.

LEGAL ARGUMENT

8. The gravamen of the crime described in 18 U.S.C. 2314, first subsection, is interstate transportation. “The gravamen of a violation of 18 U.S.C. 2314 is transportation of stolen goods in interstate commerce”. U.S. v. Calabrese, 645 F. 2d 1379, (10^th Circuit 1980). “In enacting Section 2314, Congress intended to extend the National Motor Vehicle Theft Act to cover all stolen property over a certain value which is knowingly transported across state or international boundaries”. U. S. v Taylor, 178 F. Supp 352, 353-55, (E.D.Wis. 1959) and followed in U.S. v. Whaley, 788 F. 2d 581 (9^th Circuit 1986).

9. The words in the first subsection of Section 2314 “knowing the same to have been stolen, converted or taken by fraud” constitute a predicate element to the gravamen of the crime of interstate transportation. In U. S. v. Johnson, 207 F. 2d 314 (5^th Circuit 1953), the court dealt extensively with this very matter. “The indictment did not charge appellant with stealing, converting or taking the jewelry by fraud. The manner in which the property was unlawfully taken from its possessor is a subsidiary element of the offense. By enacting the statute which the appellant stands convicted of violating, Congress intended to prohibit the channels of interstate and foreign commerce from being employed to evade and escape State detection and prosecution within its boundaries. Appellant was charged with transporting the jewelry in foreign commerce with knowledge that it had been “stolen, converted or taken by fraud.” The quoted words relate to the quality of the property he transported and not to the manner in which he acquired it”, at 318, 319. “The gravamen of the offense prohibited by 18 U.S.C. 2314 is the transportation in interstate or foreign commerce of goods with knowledge that they have been secured by the unlawful means referred to in the statute. It is immaterial whether the accused is guilty of any offense in connection with the primary wrongful taking of the goods, nor is it significant how the accused acquired possession of the goods, except that this may be shown in order to prove his knowledge of their character as being stolen, converted or taken by fraud”, at 319.

It is instructive in connection with the explanations given above that the Johnson Indictment, supra read as follows: “The Grand Jury charges: On, to-wit: April 18, 1952, at Miami, Dade County, Florida, in the Southern District of Florida, Charles Wesley Johnson, the defendant herein, unlawfully did knowingly transport in foreign commerce . . . . . . . . . which said property had therefore been stolen, converted or taken by fraud as he, the said defendant at the time of transporting said merchandise as aforesaid, well knew” at 318.

10. The United States Court of Appeals for the Seventh Circuit’s U. S. v. Johnson, 805 F.2d 753, 757, (1986) recited the indictment upon which Johnson stood trial for an alleged violation of the first subsection of Section 2314 as follows, to-wit: “That on or about November 12, 1980, at Chicago, in the Northern District of Illinois, Eastern Division, JACK JOHNSON, defendant herein, did with unlawful and fraudulent intent, cause to be transported in interstate commerce from Chicago, Illinois to Mulberry, Arkansas, a certain security of the following tenor and description: Merchandise National Bank of Chicago Cashier’s [C]heck # C 174589, dated November 13, 1980, payable to Tri-State Drilling Co. in the amount of $75,000 knowing the same to have been converted and taken by fraud.”

Thus, the court had ruled that the essential elements of a charge brought under 18 U.S.C 2314, first subsection, are: “Elements of the Offense. To support a conviction under section 2314, an indictment must allege: "(1) interstate transportation of a stolen, converted, or fraudulently taken check of at least $5,000 value (2) with fraudulent intent." United States v. Mosley, 786 F.2d 1330, 1334 (7th Cir.)”.

11. In U.S. v. Beard, 414 F.2d 1014, 1016 (3^rd Circuit 1969) the court followed the reasoning in U.S. Blackshere, 282 F. Supp 846, 847 (D.N.M 1968), to-wit: “The allegation that the defendant knew the cattle to have been stolen does not supply the indictment with the necessary element of willfulness {intent} for it cannot be said to have the same meaning.”

12. In 1947 the United States District Court for the Northern District of Illinois, U.S. v. Weber, 71 F. Supp. 88, 90 (N.D. Illinois 1947), sought to put to rest the question of whether an indictment which fails to charge an element of a statutory crime is sufficient, when such element is not actually contained in the statute by following the ruling in U.S. v. Carll, 26 L.Ed. 1135, to-wit: “In an indictment upon a statute it is not sufficient to set forth the offense in the words of the statute, unless these words of themselves fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense 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. United States v. Cruikshank, 23 L.Ed. 588.”

In United States v. Cruikshank, 23 L. Ed. 588, the Supreme Court said: “It is an elementary of criminal pleading, that where the definition of an offense, whether it be at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species; it must descend to particulars’ I Arch.Cr.Pr. and Pl. 291.”

13. The question of resolving the allegation of criminal intent in an indictment has been thoroughly treated by U.S. Supreme Court rulings. Most notable among them are: U.S. v. Hess, 124 U.S. 483-489 (1888), Morissette v. U.S., 96 L. Ed. 288 (1951)., U. S. v. Bailey, 62 L. Ed. 2d 578 and Stirone v. U.S., 4 L. Ed. 2d 252.

WHEREFORE, the defendant prays, that for all of the forgoing reasons advanced, the court will find his motion meritorious and quash the indictments brought against him and declare the Judgments of Conviction null and void and of no force or effect.

RSPECTFULLY SUBMITTED

J. Patrick Dohm

J. Patrick Dohm, pro se

6532 Spring Brook Road, #303

Rockford, IL 61114

815-282-3184

PROOF OF SERVICE

The undersigned hereby certifies that he has personally delivered by hand an exact copy of the Motion herein to the office of the United States Attorney for the Northern District of Illinois, Western Division at 308 W. State St., Rockford, IL 61101 on June 3, 2009.

Patrick Dohm

THE FIX WAS IN

2009-03-22T16:29:00.005-05:00

The federal prosecutor in this case, Dan K. Webb who, by the way, is a very smart person and not stupid, thought he could finesse a slam dunk upon the defendant, the grand jury and the district and appellate courts all at the same time.

Instead having to grapple with the matter of criminal intent in the proposed indictment and realizing that he could easily intimidate the grand jury by the reputation that preceded him, he indeed allowed the grand jury to sign on to an indictment devoid of any words of criminal intent or any words of similar import.

The courts at the outset continued to ignore the phony indictment by refusing to rule on a motion to dismiss for failure to state a cause of action prior to trial which was required by rule. From that point onwards, the actions (or lack thereof) of the district and applellate courts became ludicrous.

After having to endure a show trial, wherein the indictment was allowed to be orally amended on three separate occasions, the defendant was presented with a Judgment of Conviction dated September 28, 1982 that bore no resemblance to the phony indictment.

There were no words of criminal intent or words of similar import in the indictment. However, the court saw fit to add them to the judgment: knowingly, willfully and with unlawful and fraudulent intent. The indictment did not alleged “falsely made and forged securities”. Yet the court saw fit to do just that: convict the defendant for transporting falsely made and forged securities. The specious indictment also included, as a predicate component of the alleged crime, that the defendant knew that the items transported were converted and taken by fraud.
The judgment is silent as to the defendant’s knowledge about any items converted and taken by fraud.

After pointing out the errors of the September 28, 1982 judgment to the district court, a new one was presented to me on December 5, 1984. This exercise only added to the befuddlement of the court. In it, the element of interstate transportation was absent and no mention of knowledge of the items being converted and taken by fraud.

Sometime later, the defendant filed a motion in the nature of a writ coram nobis.
The court issued an order declaring that the writ was no longer available in criminal cases.

The district court throughout this entire episode evidently did not know what it was doing. If it did, it did not show it. It is doubtful if it knew the crime proposed to be alleged in Title 18 USC Section 2314, 1st paragraph was the codification of the National Stolen Property Act. If it did know, it did not follow any of the requirements of the Act necessary to spell out crime. Neither did it pay heed to any of the plethora of case law available to them at the district, appellate and supreme court levels that conclusively supports the proposition that the indictment was void ab initio.

2009-03-22T16:07:00.000-05:00

2009-03-22T15:53:00.000-05:00

2009-03-22T14:12:00.000-05:00

2009-03-22T13:18:00.003-05:00

The Administrative Office of the United States Courts Weighs In

2005-11-17T16:02:00.001-06:00

It appears that the Administrative Office of the United States Courts has become somewhat skittish or, perhaps, just plainly annoyed in having this blog remain in existence. A MSN Search for "Federal Courts" found the following tidbit of information on November 15, 2005:

"WEB SITE Notify Blogger about objectionable content. What does this mean? Blog This! Federal Courts " The moving finger writes and, having writ, moves on; nor all your piety nor wit shall lure it back to . . . . link http://federalcourts.blogspot.com"

This blogger is aghast! He is turning and tossing every night in his sleep wondering who or what will be the messenger of doom. If the Administrator believes the content is nothing more that the ranting of a nut case, so be it. There are untold numbers of rants on the internet. If the Administrator believes the content is actually objectionable, the blogger would appreciate an explanation for its objectionableness. If the Administrator believes it is the factual recounting of a criminal proceeding gone bad, from start to finish, on account of deliberate and purposeful collusion, the ineptitude and personal animosities on the part of the individuals involved, then so be it also.

One has only to review the court record to discover the factual underpinnings of every last allegation.

LawGuru.com bows to the Federal Judiciary

2005-09-21T19:34:00.001-05:00

LawGuru.com's new Legal Forums, "Screwed by the System", has taken on some screwing of its own. My post on the forum, "Federal Courts, US Circuit Judges Collude with Prosecutors", which had appeared unscathed since its posting in February, 2005 has suddenly disappeared into thin cyberspace. The first inkling that something was afoot was the moderator's substituting the personal names named in the post with silly looking strings of asteriks. This, of course, emasculated the post entirley. After vigorously protesting to LawGuru.com, accusing them of caving into heavy-handed jawboning from federal quarters, the post was unceremoniously booted off. Lordy, lordy, woe is me!

2005-09-07T18:21:00.002-05:00

"Our Hero", "Champion Public Defender" and "Defender of the Century" Terence F. MacCarthy, Northern District of Illinois

Mr. Parsons,

I have much enjoyed your newsletter, “The BACK BENCHER”, especially those sections citing cases of possible reversible error.

I understand that you, as Federal Public Defender for the Central District of Illinois and Terrence MacCarthy, Executive Director of the Federal Defender Program for the Northern District of Illinois will be jointly conducting a federal defender seminar in Rockford, IL on April 1 and 2 of this year. My interest was more than piqued as I read the details in the announcement.

I have also read the glowing accolades heaped upon Mr. MacCarthy - see addendum at the end of this blog - and especially those given in the brochure leading up to the seminar at Suffolk Law School on April 13, 2002:

"Terry MacCarthy firmly believes that communication, not scholarship, is the key to successful litigation. At this program, he will teach you what he calls the “look good” system, an approach wherein style is more important than substance. He also believes that stylistic excellence is ultimately a science, not an art, and something trial lawyers can learn, not something they wish they were born with. He makes this point using examples from both his experience and imagination, not merely war stories".

(emphasis added).

It was unfortunate that his “good look” system was found wanting in the case of United States of America vs. J. Patrick Dohm – which occurred on his watch – and attached to this correspondence.

Perhaps in this case he failed to learn any substantive law before he began to dance and pirouette around the courtroom in order to “look good”.

J. Patrick Dohm
ingepat@ix.netcom.com
(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

cases of U. S. v CARLL, 105 U.S. 611 (1881), U. S. v. HESS 124 U.S. 483 (1888)

to the modern day landmark of MORISSETTE V. U.S., 342 U.S. 246 (1952)

as well as the Seventh Circuit's own U.S. v. TAYLOR, 178 F. Supp. 352 (E.D. Wis.1959) and followed in U. S. v. WHALEY, 788 F. 2d 581 (9th Circuit 1986), U. S. v. WEBER, 71 F. Supp. 88 (N.D. Illinois E.D. 1947), U.S. v. WABAUNSEE, 528 F.2d 1 (7th Cir. 1975) and others including U. S.. v. BLACKSHERE, 282 F. Supp. 846 (D.N.M. 1968) and followed by U. S. v. BEARD, 414 F. 2d 1014 (3rd Circuit 1969), U. S. v JOHNSON, 207 F. 2d 314 (5th Circuit 1953), U.S. v. MOSLEY, 786 F. 2d 1330 (7th Circuit argued June 12, 1985, decided March 26, 1986) 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.

ADDENDUM

Chief Judge Richard Posner's nomination of Terence F. MacCarthy, Esquire for the Seventh Circuit Professionalism Award

American Inns of Courts, 2000 Newsletter

http://www.innsofcourt.org/Content/Default.aspx?Id=365

J. Patrick Dohm

6532 Spring Brook Road

Rockford, IL 61114

(815) 282-3184

ingepat@ix.netcom.com

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