Monday, April 23, 2012
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UNPUBLISHED ORDER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)
UNPUBLISHED ORDER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“UNPUBLISHED ORDER NOT TO BE CITED PER CIRCUIT RULE 35”.
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“UNPUBLISHED ORDER NOT TO BE CITED PER CIRCUIT RULE 35”.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:
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.
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
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