Petition for Coram Nobis

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

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.