Kurt's Legal Brief

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 08-10147, No. 08-10258 [consolidated]
District Court No. 05-cr-00611
UNITED STATES OF AMERICA
Plaintiff/Appellee
v.
KURT F. JOHNSON and DALE SCOTT HEINEMAN
Defendants/Appellants
Appeal From the United States District Court for the Northern District of
California, Honorable William H. Alsup, Judge Presiding
APPELLANTS’ SUPPLEMENTAL OPENING BRIEF1
KURT F. JOHNSON
Appellant/Defendant
FCI Herlong
P.O. Box 800
Herlong, CA 96113
DALE SCOTT HEINEMAN
Appellant/Defendant
FCI-1 Victorville
P.O. Box 5300
Adelanto, CA 92301
Filing Supplemental Brief Pro Se
1 Appellants’ Supplemental Brief is raising additional issues to be considered with the
issues raised in the previously-filed Opening Brief prepared by Counsel. Appellants
continue to be represented by Counsel in all other matters.
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………….vi
POEM………………………………………………………………………..1
ISSUES PRESENTED FOR REVIEW……………………………………...1
JURISDICTIONAL STATEMENT.……………………………………...…3
STATEMENT OF THE CASE.……………………………………………..2
STATEMENT OF FACTS……..…………………………………………....4
ARGUMENT………………………………………………………………..5
I. THE FRAUD STATUTES ARE VOID FOR VAGUENESS...5
A. The Fraud Statutes Are Void For Vagueness…………………5
B. The Vagueness in the Statutes Permitted the Trial Court to Use
Special Verdict Forms to Find Overt Acts………………..…13
II. THE DISTRICT COURT LOST JURISDICTION WHEN IT
VIOLATED THE SPEED TRIAL ACT…. ………………....14
A. Summary of Relevant Facts……………………………...…14
B. The District Court Violated the Speedy Trial Act………….15
CONCLUSION…………………………………………………………….16
Certificate of Compliance…………………………………………….……18
Circuit Rule 27-8.2 Statement.…………………………………………..…18
Certificate of Service…………………………………………………….…19
iii
TABLE OF AUTHORITIES
Federal Cases
Bank of Nova Scotia v. Kilpatrick,
487 U.S. 250 (1988)……………………………………………..…..14
Black v. United States,
__ U.S. __, 129 S.Ct. 2379 (2009)………………………………...….6
Bloate v. United States,
__ S.Ct. __, 2010 WL 757660 (U.S. Mar. 8, 2010)…………….…….8
Carlisle v. United States,
517 U.S. 416 (1996)…………………………………………………14
City of Chicago v. Morales,
527 U.S. 41 (1999)…………………………………………………....5
Cleveland v. United States,
531 U.S. 12 (2000)……………………………………………………6
Connally v. General Construction Co.,
269 U.S. 385 (1926)…………………………………………………..7
Durlan v. United States,
161 U.S. 306 (1896)…………………………………………...….6, 12
Fasulo v. United States,
272 U.S. 620 (1926)…………………………………………………..6
Grayned v. City of Rockford,
408 U.S. 104 (1972)…………………………………………………..7
Green v. United States,
365 U.S. 301 (1961)………………………………………………...13
Kolendar v. Lawson,
461 U.S. 352 (1983)…………………………………………….….5, 7
iv
McNally v. United States,
483 U.S. 350 (1987)…………………………………………………..6
Papchristou v. City of Jacksonville,
405 U.S. 156 (1972)……………………………………………….….7
Skilling v. United States,
__ U.S. __, 130 S.Ct. 393 (2009)…………………………………..6, 8
Smith v. Goguen,
415 U.S. 566 (1974)……………………………………………..1, 5, 7
Sorich v. United States,
__ U.S. __, 129 S.Ct. 1308 (2009)…………………………………6, 8
United States v. James,
432 F.2d 303 (5th Cir. 1970)………………………………………...14
United States v. Loud Hawk,
474 U.S. 302 (1986)…………………………………………………15
United States v. MacDonald,
456 U.S. 1 (1982)……………………………………………………15
United States v. Marion,
404 U.S. 307 (1971)…………………………………………………15
United States v. Reese,
92 U.S. 214 (1875)…………………………………………………6, 7
United States v. Rodriquez,
553 U.S. 377, 128 S.Ct. 1788 (2008)…………………………………2
United States v. Rush,
738 F.2d 497 (1st Cir. 1984)………………………………………...16
United States v. Spock,
416 F.2d 165 (1st Cir. 1969)…………………………………….13, 14
v
United States v. Thomas,
788 F.2d 1250 (7th Cir. 1986)……………………………………….16
United States v. Whitley,
529 F.3d 150 (2d Cir. 2008)…………………………………………..2
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982)…………………………………………………..7
Weyhrauch v. United States,
__ U.S. __, 129 S.Ct. 2863 (2009)……………………………………6
Zedner v. United States,
547 U.S. 489 (2006)…………………………………………………15
Federal Statutes
18 U.S.C. § 401(3)…………………………………………………………..3
18 U.S.C. § 1341…..…………...……………………………3, 4, 5, 7, 11, 13
18 U.S.C. § 1344…..…………...……………………………………………3
18 U.S.C. § 1346…..…………...………………………………………1, 6, 8
18 U.S.C. § 1349……………….………………………………3, 4, 5, 11, 13
18 U.S.C. § 2161…..…………...……………………………………………2
18 U.S.C. § 3231…..………………...………………………………………2
28 U.S.C. § 1291………….…………………………………………………3
28 U.S.C. § 2461(c)………….………………………………………………3
Federal Constitution
vi
SIXTH AMEND.……………………………………………………….……15
Federal Rules
FED. R. APP. P. 4(b)…………………………………………………………3
Miscellaneous
BLACK’S LAW DICTIONARY 831 (9th ed. 2009)………..…………………….8
M. Bassionuni, SUBSTANTIVE CRIMINAL LAW 53 (1978)………..…………..7
1
POETIC JUSTICE
Haiku, iambic pentameter, the sonnet are laws for poetry
rhyme and reason can also be binding
regulations upon creative imagination can be legalistic
but realistically can never be considered a judicial finding
Placement and selection of every word does a poem justice
misplacement and mis-selection of legal words does a man
injustice
Though a judge is authorized to regulate
he is bound by separation not to legislate
Imagination seems infinite to the creative thinker
while law seems finite to deal with finite creatures
the opposite is true for law must have an infinite source
or it is just imagination of course
If law is just a collective imagination of the mind
it will not be long before justice is a crime
Appellant Kurt Johnson, Poetic Justice (2010)
ISSUES PRESENTED FOR REVIEW
1. Void for Vagueness: Personal predilections, Lack of guidance, and
Standardless Sweep are all ingredients of a vague statute. The second
principle element of the vagueness doctrine involves the requirement
that congress establish minimal guideline to govern law enforcement.
When the guidelines are absent, a criminal statute may permit “[a]
standardless sweep [that] allows policemen, prosecutors, and juries to
pursue their personal predilections.” Smith v. Goguen, 415 U.S. 566,
575 (1974). Here Appellants Kurt F. Johnson (“Mr. Johnson”) and
Dale Scott Heineman (“Mr. Heineman”, collectively referred to as
“Appellants”) foster the term[s]: “Scheme or artifice to defraud”
permits the government, in this case, to pursue their own predilections
because there is simply no guidance providing a standardless sweep of
unincluded conduct. Take for example 28 U.S.C. § 1346 and the term
“includes” which is followed by “honest services.” When “include” is
utilized, the participle including typically indicates a partial list. Only
2
in the fraud statutes here contain no such list. Instead, the statute
leaves to the government a blank check to add words to the statute
despite the fact that the Supreme Court has recently condemned the
insertion of words into a statute as, not faithful to the statutory text.
See United States v. Whitley, 529 F.3d 150, 157 n.5 (2d Cir. 2008)
(quoting United States v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1788,
1789 (2008)). Overall, the lack of guidance in 'Scheme or artifice to
defraud' allows the government to create an imaginary list of terms to
produce a federal crime with a standardless sweep of facts known
only to the prosecutor. As applied, are the fraud statutes here void for
vagueness?
2. Speedy Trial Act Violation: Did the district court lose jurisdiction to
prosecute this indictment in this case when it failed to observe the
Sixth Amendment as applied through 18 U.S.C. § 2161 et. seq.?
JURISDICTIONAL STATEMENT
Mr. Johnson and Mr. Heineman were charged by superseding
indictment with 68 felony criminal offenses in the Northern District of
California E.R. 211[Docket sheet, entry 14], which is a matter within the
jurisdiction of the United States District Court. See 18 U.S.C. § 3231. On
November 14, 2007, the jury found Appellants guilty of 35 counts. E.R. 19,
DS 525. On March 18, 2008, the district court entered a final judgment after
imposing a 300-month sentence on Mr. Johnson (a 240-month sentence on
the conspiracy count to run consecutively to the 20 months imposed on each
mail fraud count) and a 260-month sentence on Mr. Heineman (a 240-month
1 “E.R.” refers to Appellants’ Excerpts of Record, which were filed with
Appellants’ opening brief. References to the Docket Sheet will be labeled
“DS.”
3
sentence on the conspiracy count to run consecutively to 60-months imposed
on each mail fraud count). E.R. 3-4; E.R. 11–12. On March 18, 2008,
Appellants filed a timely notice of appeal pursuant to FED. R. APP. P. 4(b).
E.R. 1. This Court thus has jurisdiction to review Appellants’ appeal of the
district court’s final orders pursuant to 28 U.S.C. § 1291.
STATEMENT OF THE CASE
By a superseding indictment filed on February 16, 2006, in the United
States District Court, Northern District of California, Mr. Johnson and Mr.
Heineman were charged with 68 felony counts, involving one count of
conspiracy to commit mail fraud, wire fraud, and bank fraud (18 U.S.C. §
1349), 36 counts of mail fraud (18 U.S.C. § 1341), 26 counts of bank fraud
(18 U.S.C. § 1344), two counts of contempt of court (18 U.S.C. § 401(3)),
and three counts of forfeiture (28 U.S.C. § 2461(c)). E.R. 21–63. Prior to
trial, 26 Counts were dismissed by the Government. E.R. 537, G.E.R. 21.2
On October 15, 2007, Appellant’s jury trial commenced. DS 484.
On November 13, 2007, the Government dismissed with prejudice seven
additional counts (Counts 31, 32, 64–65, 66, 67, and 68). DS 517, 513. On
November 14, 2007, the jury found Mr. Johnson and Mr. Heineman guilty of
2 “G.E.R.” refers to the Government’s Excerpts of Record, which were filed
with the Government’s Answering Brief.
4
35 counts contained a special verdict form. E.R. 19, DS 525. In particular,
the jury rendered guilty verdicts with respect to one count of conspiracy (18
U.S.C. § 1349, Count 1) and 34 counts of mail fraud (18 U.S.C. § 1341,
Count 2–5, 8–14, 19–25, 33–34, 38–52) E.R. 19, Special Verdict Form, DS
531. With respect to Mr. Heineman, the Court imposed a 240-month
sentence for Count 1 to run consecutive to the 20-month sentence for the
mail fraud counts, for a total 260 month term. E.R. 11–12. With respect to
Mr. Johnson, the court imposed a 240-month sentence for Count 1 to run
consecutive to the 60-month sentence for the mail fraud counts, for a total
300 month term. E.R. 13–14. In addition, the Court assessed a special fine
of $3,500 and ordered both men, jointly and severally, to make restitution in
the amount of $512,911.63 to the victims. E.R. 7, 15.
On March 18, 2008, the district court entered a final judgment. E.R.
3, 11. On the same day, Mr. Johnson and Mr. Heineman filed a timely
notice of appeal. E.R. 1.
STATEMENT OF FACTS
In Appellants’ Opening Brief, they set forth a detailed statement of
facts. Appellants wish to respectfully incorporate by reference the statement
of facts into this Supplemental Brief.
//
5
ARGUMENT
I. THE FRAUD STATUTES ARE VOID FOR VAGUENESS
A. The Fraud Statutes Are Void For Vagueness
Title 18 U.S.C. § 1341 is void for vagueness. Title 18 U.S.C. § 1349
in that it is a predicated attachment that garners its elemental strength from
other fraud statutes as section 1341 in this case is likewise void for
vagueness. The structure of the argument by circumstance is in the nature of
first impression.
“A penal code is void for vagueness if it fails to ‘define the criminal
offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited' or fails to establish guidelines to prevent 'arbitrary and
discriminatory enforcement' of the law.’” City of Chicago v. Morales, 527
U.S. 41, 64–65 (1999) (quoting Kolendar v. Lawson, 461 U.S. 352 (1983)).
Of these, “the more important aspect of the vagueness doctrine ‘is . . . the
requirement that the legislature establish minimal guidelines to govern law
enforcement.'' Id. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574
(1974)).
Notice to appellant is not raised because it is understood as likely
being automatic if the second and more important prong of the vagueness
doctrine is satisfied.
6
The government in this case has shown all the symptoms of a lack of
guidance along with the idea that Durlan v. United States, 161 U.S. 306
(1896) is still good law. “The statute is broader than is claimed. Its letter
show this: ‘Any Scheme or artifice to defraud’. . . In the light of this the
statute must be read, and so read it includes everything designed to defraud. .
.” Id. at 313 (emphasis added). Cases like Fasulo v. United States, 272 U.S.
620 (1926), McNally v. United States, 483 U.S. 350 (1987), and Cleveland v.
United States, 531 U.S. 12 (2000) have by now most certainly dispelled this
imagination.
Congress in response to the McNally case, fully enacted 18 U.S.C. §
1346 to further define “a scheme or artifice to defraud” to include honest
services. Whether they accomplished their goal is a question Justice Scalia
thought ripe for review in Sorich v. United States, __ U.S. __, 129 S.Ct.
1308 (2009) (Scalia, J., dissenting from denial of petition for certiorari) and
the Court has now taken up in Skilling v. United States, __ U.S. __, 130
S.Ct. 393 (2009) (granting petition for certiorari); Weyhrauch v. United
States, __ U.S. __, 129 S.Ct. 2863 (2009) (same); and Black v. United States,
__ U.S. __, 129 S.Ct. 2379 (2009) (same).
These concerns are nothing new as far back as United States v. Reese,
92 U.S. 214 (1875) the Supreme Court has recognized the dangers in a
7
vague penal statute. The statutes on this case, as applied, have no more than
a general meaning that permit the government “to cast a net large enough to
catch all possible offenders, and leave it to the courts to step inside and say
who could be rightfully detained, and who should be set at large.” Id. at
221.
The Constitution is designed to maximize individual freedoms within
a framework of ordered liberty. Statutory limitations on these freedoms are
examined for substantive authority and content as well as for definiteness or
certainty of expression. See generally M. Bassionuni, SUBSTANTIVE
CRIMINAL LAW 53 (1978). As generally stated:
The void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness the
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and
discriminatory enforcement.
Kolender, 461 U.S. at 357. See also Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489 (1982); Smith v. Goguen, 415 U.S. 566
(1974); Grayned v. City of Rockford, 408 U.S. 104 (1972); Papchristou v.
City of Jacksonville, 405 U.S. 156 (1972); Connally v. General Construction
Co., 269 U.S. 385, 391–92 (1926) (citing cases).
Section 1346 added “Honest services” as a definite addition to be
included in an absent list with the controlling statute 18 U.S.C. § 1341.
8
“When 'include' is utilized, the participle including typically indicates a
partial list.” Bloate v. United States, __ S.Ct. __, 2010 WL 757660, at *13
(U.S. Mar. 8, 2010) (quoting BLACK’S LAW DICTIONARY 831 (9th ed. 2009)
(emphasis in Black’s Law). “A scheme or artifice to defraud” throughout
section 1346 supposedly clarified a particular elemental category, Congress
categorically ignored the fact that the list they were amending was blind to
law enforcement and that enforcement was left to their personal
predilections to divine a list. What we have is the hypothetical statute
prohibiting anything bad discussed by Justice Scalia during the oral
argument for Skillings operating in reality. See Skillings v. United States,
Oral Argument Transcript, pp 44 lns. 11–26.
“Though [section 1346] consists of only 28 words, the statute has
been invoked to impose criminal penalties upon a broad swath of behavior.”
Sorich, 129 S.Ct. at 1309 (Scalia, J., dissenting from denial of petition for
certiorari). Deputy Solicitor General Dreeben in oral arguments before the
Supreme Court in Black argued that the reach of section 1346 is to any act of
deception for personal gain. Even an employee calling in sick to attend a
ballgame would have been captured by the net of this statute for having
deprived his employer of honest services through fraud. Later in oral
arguments of Skilling, Dreeben changed his position to a more narrow
9
position of fiduciary obligations. In this case the Assistant United States
Attorney Hall (“AUSA Hall”) in direct examination adapting to testimonial
answers took his personal predilections to even a new theory that “honest
services” was now a property interest of the alleged victims.
The moving target of personal predilections free to roam in
standardless sweep in this case are not limited to this one shining example.
AUSA Keller alleges financial institutions as affected and controlling. See
E.R. 323–24 and being defined by the statute. By closing arguments AUSA
Hall has switched victims to “clients.” See E.R. 557, 560, 563. Then
patches up this change with an amalgamation theory. See E.R. 565. AUSA
Martin in closing does some more patchwork roaming on the definition of
financial institutions. See E.R. 655. Then by sentencing the allegations
have completely morphed into unnoticed and unimagined accusation on the
part of appellants by AUSA Martin. See E.R. 705, 726. Even the judge is
untethered by any guidance of the legislature when instructing the jury that
“banks” are simply irrelevant to their decision. See E.R. 665, 666. What is
relevant is really the unanswered question. Is the term “banks” now a
synonym of “financial institution”? Was this a word added to the test that
was faithful or unfaithful? Was it thrown out as a hook to reel in the
personal predilections of the jurors?
10
This case began when the sitting Judge Alsup referred Appellants to
the prosecutors out of a civil matter. Alsup functioning as a one-man grand
jury formulated a theory about Appellants’ conduct that fell easily within his
persona predilections interpreted through this “anything bad” fraud statute.
The FBI did a cut and paste investigation in deference to the rank of the
referral. They had no guidance from Congress to rein in another theory.
The probable cause affidavit of the lead investigator Agent Ernst was 90%
the words of Alsup. Now Appellants are secretly brought before a grand
jury. What was used to inflame them to indict? Were they instructed with
definiteness as to “scheme and artifice to defraud,” “Money,” “financial
institutions,” “Property,” and “victims” or were they seduced into their own
personal predilections being let loose upon the vast landscape of the
“anything bad” statute? Are they any different that the grand juries who
passed on the McNally and Cleveland indictments? From bark to core the
entire process was fundamentally flawed by, unknown to Appellants,
personal predilections. Which predilection was controlling and which
required a justified defense still remains a mystery to Appellants.
Throughout these proceedings Appellants were constantly informed by
various judges, magistrates, and prosecutors that “facts don't matter.” It was
not until absurd sentences were cast that Appellants could comprehend the
11
veracity of that statement. Facts don't matter because in the indiscriminate
net and trolling advantages of the government afloat upon the sea of process
can sell their haul to the appetites and predilections of any juror, law
enforcement, or judge out of the void unaddressed by Congress.
Title 18 U.S.C. §§ 1341 and 1349 as presently drafted and construed
by the courts, contain no construed by the courts, contain no standard of
determining what constitutes a scheme to defraud, or for that matter any
element applicable here that makes it a crime. As such, these statutes vest
virtually complete discretion in the hands of law enforcement, federal
prosecutors, and jurors following their personal predilections.
The problem with the lack of definiteness is not the missing
definitions per se but that due process cannot be obtained out of the
vagueness because law enforcement has not been able to implement any
standards of review that assure congressional intent governs. The courts
cannot continue to be asked to function as a piecemeal federal register where
each ruling clarifies another predilection false as an element of public policy
and procedures.
“Money”: credit is the postponement in payment of money, money
factually cannot be the postponement of itself. Is money a separate interest
and prong distinct from 'property' in this statute or are they merged?
12
“Financial institutions”: is a bank a financial institution under all
circumstances and in all forms? Is a ban the limiting definition of a financial
institution within this statute? “Property”: having qualities of tangibility
and transferability being in the possession of the victim can now become
intangible or another victim's? “Scheme or artifice to defraud”: is
Durland's everything bad interpretation the definitive guideline offered by
Congress? “Loans-mortgages”: are they a property interest, a money
interest, or added in a way faithful to the statutory text? “Debt elimination”:
finds its way into the prohibition textually or by predilection?
Regardless of these answers Appellants are basically foreclosed from
presenting any other arguments by the lack of guidance supplied by
Congress through these statutes. With not textual foundation from which to
launch fatal variance or constructive amendment to the accusation and
indictment how does one proceed? Where is the footing for causation and/or
reliance? Where does one stand on evidentiary issues and their sufficiency
when proof is packed upon a wandering dromedary in the parched desert of
predilection? Can one even ask if the 2002 amendment to this statute adding
financial institutions and disaster relief added new elements to create say an
“aggravated” mail fraud if the original statute fails to state an offense? Is
this statute a glorified run on sentence elucidating an overt act of use of
13
mails to some fraud crime not listed? The problem for Appellants is a twoedged
sword. On one side a very powerful and resourceful government is let
loose ungoverned to entertain its imaginary whims and equally sharp
Appellants are likewise unguided by any notice of prohibited acts,
governmental restraint, or accusations to defend. To raise any of these
arguments would be a circumvention and couched argument for vagueness
so they have all been laid subordinate to the over arching problem in this
case. Sections 1341 and 1349 fail to govern law enforcement or to provide
reasonable notice to an accused.
Regardless of this Court's ethical or moral assessment of Appellants
garnered from this record it should be noted, that “bad men, like good men,
are entitled to be tried and sentenced in accordance with law.” Green v.
United States, 365 U.S. 301, 309 (1961).
B. The Vagueness in the Statutes Permitted the Trial Court to Use
Special Verdict Forms to Find Overt Acts
It is Appellants position that vagueness in these statutes permitted the
trial court to create a procedure that does not exist in any statute, special
verdicts. Special verdicts pose a serious risk to criminal defendants, they
lead the jury through a “step by step . . . progression of questions[,] each of
which seems to require an answer unfavorable to the defendant, special
verdicts can coerce a reluctant juror to convict.” United States v. Spock, 416
14
F.2d 165, 182 (1st Cir. 1969); United States v. James, 432 F.2d 303, 307
(5th Cir. 1970). In fact, even though no federal court has “the power to
develop rules that circumvent or conflict with federal rules,” the vagueness
and lack of guidance provides the court in this case a way to circumvent
these decisions. Carlisle v. United States, 517 U.S. 416, 426 (1996); see
also Bank of Nova Scotia v. Kilpatrick, 487 U.S. 250, 255 (1988).
II. THE DISTRICT COURT LOST JURISDICTION WHEN IT
VIOLATED THE SPEED TRIAL ACT
A. Summary of Relevant Facts
Appellants were each taken into custody on related charges from the
State of Utah. Mr. Heineman on May 28, 2005 and Mr. Johnson on July 21,
2005. It is the position of Appellants that this state prosecution was a ruse
for mere tactical advantage for the Feds to take Appellants out of their
liberties while the motions to indict moved too slowly for the prosecution.
On September 22, 2005 a federal indictment was passed and made public
upon Appellants, and a federal detainer placed. At that time Utah's
usefulness had passed and an agreement with federal prosecutors was made
to have the state case dismissed on October 20, 2005. On that date at the
unction of federal prosecutors, a 60-day continuance was granted and the
case was dismissed on December 20, 2005. Appellants were now placed
into federal custody. On December 22, 2005, Appellants were taken before
15
magistrate Samuel Alba in the Utah District. Appellants have never left
federal custody since entering it. On or about February 9, 2006, Appellants
appeared in the Northern District of California where the indictment was
passed. While in court on February 17, 2006 a superseding indictment was
passed, made public, and served upon Appellants. 27 counts of the
indictment in final relativity carried forward. The first appearances before
any officer of the court that made any exclusionary finding upon the record
was Judge Alsup on March 3, 2006. A period of 74 days from the latest
attachment to the Sixth Amendment guarantee.
B. The District Court Violated the Speedy Trial Act
The Supreme Court has held that the Speedy Trial protection is more a
promise to the public than to the individual and therefore cannot be waived.
Zedner v. United States, 547 U.S. 489 (2006).
Where that right attaches to the individual has clearly been determined
to revolve around the deprivation of liberty interest. United States v.
Marion, 404 U.S. 307 (1971); see also United States v. Loud Hawk, 474
U.S. 302, 312 (1986), United States v. MacDonald, 456 U.S. 1, 8 (1982).
For Appellants that is December 20, 2005. But this right is not a precise
right that cannot be applied without some balance of the circumstance.
Though 74 days passed between federal custody and the first exclusion it
16
could be reasonably argued that the behavior of the federal prosecutor in
obtaining the 60-day extension before dismissal of the Utah charges did so
in a way that was a prejudicial circumvention of their duties and obligations
under the Sixth Amendment. Leaving behind whether the entire Utah case
was a puppet and master ruse to circumvent many rights and due process.
No motions were presented by either side during this period and to
Appellants’ knowledge no actions that would qualify for an automatic
exclusion transpired. This Court will find from the record that no exclusions
were made upon the record during this time frame in accordance with policy.
The 27 counts that were carried forward from the indictment to the
superceding indictment were not prosecuted within the protection and
provisions of law. The superseding indictment did not exempt the
government from its obligations at law to bring appellant to trial in a speedy
fashion. See United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986), United
States v. Rush, 738 F.2d 497 (1st Cir. 1984).
CONCLUSION
The speedy trial protections of the Sixth Amendment were violated in
this case through no fault of Appellants. It is not their right to waive and the
burdens are clearly to be borne of the government. The 27 counts carried
forward should be dismissed in accordance with law. With or without
17
prejudice a product of this Court's discernment. The error is structural and
requires a dismissal and vacation of the relevant sentence.
The void-for-vagueness doctrine as applied in this case is fundamental
in that it completely undermined due process at every single stage of the
proceedings. The integrity, fairness, and confidence in the system was
always impaired, marred, and circumvented. What transpired in this case
shocked the conscience of reasonableness while pricking every restraining
barrier offered by the canons of constitutional avoidance. The convictions
should be vacated and Congress should be put on notice that they must speak
with clear guidance for law enforcement's benefit and for proper
adjudication.
In the end this court can separate the justice poetry can bring to words
and the justice words can bring to the law. In poetry the imagination is a
friend, at law predilections are a specter of injustice.
Dated: April 6, 2010 Respectfully submitted,
/s/ Kurt Johnson
Defendant-Appellant
/s/ Dale Scott Heineman
Defendant-Appellant
18
CERTIFICATE OF COMPLIANCE
We certify that: Pursuant to Fed. R. App. P. 32(a)(7)(B) & (C) and
Ninth Circuit Rule 32-1, the attached opening brief is proportionally spaced,
has a typeface of 14 points or more, and contains approximately 3,860
words, exclusive of the table of contents, table of authorities, and certificates
of counsel, which does not exceed the 14,000 word-limit.
CIRCUIT RULE 27-8 STATEMENT
Mr. Johnson and Mr. Heineman each filed a writ of habeas corpus in
the U.S. District Court, Northern District of California. The district court
denied Mr. Heineman’s habeas petition in case number 08-02462. Mr.
Johnson’s petition is still pending in case number 08-02461.
Mr. Johnson has not sought or received any bail, remains in custody
of the United States of America, and is located at the federal detention
facility in Herlong, California.
Mr. Heineman has not sought or received any bail, remains in custody
of the United States of America, and is located at the federal detention
facility in Adelanto, California.
Dated: April 6, 2010 Respectfully submitted,
/s/ Kurt Johnson
Defendant-Appellant
/s/ Dale Scott Heineman
Defendant-Appellant
19
CERTIFICATE OF SERVICE
I declare that I am over the age of eighteen (18) years and not a party to
the instant action. I am in good standing with the Ninth Circuit Court of
Appeals, the State Bar of California, and the State Bar of Oregon. My work
address is 1300 Clay Street, Suite 600, Oakland, CA 94612 and 256 Cajon
Street, Suite H, Redlands, CA 92373.
On the date-listed below, I served one copy of the attached document,
entitled Appellants’ Supplemental Opening Brief to the following
individuals:
Laurie K. Gray, Esquire, Assistant U.S. Attorney
Brigid S. Martin, Antitrust Division
450 Golden Gate Ave.
San Francisco, CA 94102
Email: laurie.kloster.gray@usdoj.gov
Email: brigid.martin@usdoj.gov
[ xx ] BY ELECTRONIC SERVICE. On the date listed below, I filed a
copy of the attached motion with the Court using the CM/ECF system. The
parties above who are registered CM/ECF users will be served by the
appellate CM/ECF system.
I declare under penalty of perjury that the foregoing is true and correct and
that this declaration was executed on April 6, 2010 in Redlands, California.
/s/ Kari Hong
LAW OFFICE OF KARI E. HONG
Appointed Attorney for Appellant
Dale Scott Heineman