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.