Salvadore Sciandra
Attorney at Law
2300 Tulare Street, Suite 230
Fresno, California 93721
Tel: 209-233-1000
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, CR F. 95-5174 OWW
Plaintiff, NOTICE OF MOTION AND MOTION
TO DISMISS THE INDICTMENT
v.
Time:
Robert McKendrick and Date:
Janice Mallen, Dept:
Defendants
_____________________________/
STATEMENT OF FACTS
Defendants were indicted on June 22, 1995. The only count
against them is Count 5 of the indictment wherein they are
alleged:
"[C]orruptly endeavor to influence, obstruct and
impede the due and proper administration of the law
under which a pending proceeding, an IRS wage levy on
Terry Ingram, was being had before the (IRS) by
preparing and mailing, and causing to be prepared and
mailed, to the offices of the IRS... a fictitious
warrant for the arrest of an employee of the IRS in
violation of 18 U.S.C. 1505."
A copy of the "fictitious warrant" is Exhibit 1.
It is NOT a "warrant for the arrest of an IRS employee,"
fictitious or otherwise. It is a facetious political
expression sarcastic of government's delusions of self
importance. It is obviously an example of political
expression. To treat it as "threat," or as "interference" with
government functions, not only violates the First Amendment,
but it should also embarrass government to so expose its
paranoid delusions of persecution. These delusions make it "a
federal crime" for people to poke fun at federal government
clumsiness.
Anyone reading it absolutely knows Exhibit 1 is not
authority to arrest or to interfere with government agents.
But, before examining it in detail, let us examine the
fundamental right to create and send such an expression to
government in the first place.
THE BASIC RIGHT TO POLITICAL SPEECH
Specifically, the First Amendment says:
"Congress shall make no law ... abridging the freedom
of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government
for a redress of grievances."
The U.S. DoJ wants an exception: "EXCEPT that it is a
crime to poke fun at government, especially its IRS." But its
absolute prohibition is written into international law,
ratified by the U.S. Senate and signed by President Bush in
June of 1992. Article 19 of The International Covenant on
Civil and Political Rights states:
"Everyone shall have the right to freedom of opinion
and expression; this right shall include freedom to
seek, receive and impart information and ideas of all
kinds, regardless of frontiers either orally, in
writing or in print, in the form of art, or through
any other media of his choice. [emphasis added]
While a similarly worded Article 19 of the Declaration of
Human Rights has no restrictions at all, Article 19, Section 3
of the International Covenant contains the following language:
"3. The exercise of the rights provided for in
paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only
be such as are provided by law and are necessary."
Of particular interest is what Our United States Senate had
to say about those "restrictions" in its Instrument of
Ratification. It is recorded in the instrument at item III(2),
as follows:
"(2) That it is the view of the United States that
States Party to the Covenant should wherever possible
refrain from imposing any restrictions or limitations
on the exercise of the rights recognized and protected
by the covenant, even when such restrictions and
limitations are permissible under the terms of the
Covenant. For the United States, Article 5, paragraph
2, which provides that fundamental human rights
existing in any State Party may not be diminished on
the pretext that the Covenant recognizes them to a
lesser extent, has particular relevance to Article 19,
paragraph 3 which would permit certain restrictions on
the freedom of expression. The United States Declares
that it will continue to adhere to the requirements
and constraints of its Constitution in respect to all
such restrictions and limitations."
What does our Constitution require when a statute is so
broad that it violates freedoms of expression, as DoJ has
interpreted 18 U.S.C. 1505 in this case? It not only invalidates
the indictment, but statutes that are so vague as to chill
freedom of expression are invalid. (See United States v
Reeves, infra at page 9-10; U.S. v De Cadena, 105 F.Supp. 202,
204 (1952); Connally et al. v General Construction Co., 269 US
391 (1926).)
In a case relevantly similar, Watts v United States, 394 US
705 (1969), The Supreme Court determined that a person who made
a public statement, after receiving his A-1 draft
classification, that "I'm not going. If they ever make me
carry a rifle, the first man I want to get in my sights is
L.B.J. (President Johnson)" did not in fact "threaten the
President." Said the Court at 394 US 708:
"The majority below seemed to agree (that only an
apparent determination to carry out the threat is
required). Perhaps this interpretation is correct,
although we have grave doubts about it. See
Dissenting opinion 402 F2d at 686-693 (Wright J.) But
whatever the "willfulness" requirement implies, the
statute initially requires the Government to prove a
true "threat". We do not believe the kind of
political hyperbole indulged in by petitioner fits
within that statutory term. For we must interpret the
language Congress chose "against the background of a
profound national commitment to the principle that
debate on public issues should be uninhibited, robust
and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on
government and public officials." (Cites Omitted)
The language of the public arena, like the language
used in labor disputes (cites omitted) is often
vituperative, abusive, and inexact. We agree with
petitioner that his only offense here was "a kind of
very crude offensive method of stating a political
opposition to the President." Taken in context, and
regarding the expressly conditional nature of the
statement and the reaction of the listeners, we do not
see how it could be interpreted otherwise." [emph.
added]
What would Americans say about Russia's putting Russians
in jail for a like political expression directed at the KGB?
Does the United States really want to set this standard for
political persecution of persons who "crudely state their
political opposition" to government bureaucracies? Not
according to The U.S. Senate's Ratification of The
International Covenant on Civil and Political Rights, supra.
EXAMINE THE "WARRANT" ON ITS FACE
On its face, the "warrant" calls itself a "judgment" and
does NOT pretend to authorize arrest. Read what it "orders" on
page two:
"Court of Conscience: Assembled in Article 1, Sec. 2
Government by Authority of JURY Article IV Sec. 23,
(symbol for paragraphs) 9, 14 Mandated in all
jurisdiction by equal I, IX, X, POWERS to Amend
Administrations District of Columbia jurisdiction."
Where's the order for arrest? Whatever it means, it does
not purport to authorize an arrest. Anyone "threatened" by it
is only threatened by his own conscience.
Examine the Face Page. Note under the "DoJ address": "Ex
rel: Form 668-A (c) 71589". Whatever that means, it seems to
be gibber-ish. My, oh, my: Such a high quality of IRS agents
to be "threatened" by ramblings from Alice in Wonderland.
Next, as part of the address "c/o (delta, symbol for
change) Government Article I, (symbol for section) 2." Such
begins a factious political dialogue carried on immediately
under the title USA: "(symbol for change) U.S.C. TITLE 18 Sec.
336".
The court is asked to read 18 U.S.C. 336. Anyone who issues
or accepts a check for less than a dollar is jailable for six
months. That is a federal law. Can anyone be blamed for
poking fun at it?
Now, note the next two lines in combination with the DoJ
address: "SUPREME COURT, OCTOBER TERM 1993". The combination
is a political pundit at the DoJ's enforcing ludicrous laws in
the Supreme Court. Instead of a separation of powers, this
sarcastically refers to the combination of judicial and
executive powers against the smallest details of human
liberties, like "paying private debts with checks under a
dollar."
Again, in the case title there is a reference to a form
and the phrase: "Change Government Article I Sec. 2".
Whatever that means, it is in the context of the opposing
party: "Federal agent M. Ryan dba Modesto Toyota et al does 1-
999 U.S.C. T 18 336 syndicate."
It is plainly just making fun of an all-important federal
government harassing people over the most petty things - like
this prosecution - in blatant violation of political rights.
In effect, it is saying:
"Who can really take the 'big bad federal wolf'
seriously when it wastes all this federal money and
prosecutorial power, over nothing; while real
gangsters roam free."
The document title again refers to the Form 668-A (c) 71593
and then says "CAVEAT EMPTUS UCC T 5-104". While exact
interpretation is difficult, it is obviously saying, "Buyer
Beware, Uniform Commercial Code Title 5 Section 104." That
section deals with the "Formal Requirements" of letters of
credit, from which we know that the author is making fun of
government's efforts to control the people in the most minute
details, as in the next phrase "Warrant for Arrest," followed by
"SS" and the spaces for a social security number. Whatever it
means, this too is so obviously political expression that even
this court ought to be embarrassed to have allowed the
persecution to go this far.
The court is asked to read the "judgment." It simply pokes
sarcastic fun at a government agent. It cannot be construed any
other way. She is "guilty of carrying a U.S.C. Title 18 Sec 336
instrument with intent to pass" it as a Treasury Note!
Now, look at the back page: "Warranted this 3 SONday of
August in Jesus Christs 1993 year of (symbol for change)
Government for Article I, Sec. 2 JURY." Then note the titles of
the "JURY PEERS". If there need be any proof that the author
is correct, that government deserves this kind of criticism and
that people should not take it seriously, it is prosecutions
like this.
ISSUES ON THE MOTION TO DISMISS
Defendants raise Three Issues which are all a part of the
major issue: Did the DoJ violate both the rights of the accused
and the rights of the Grand Jury by failing to advise the Grand
Jury that the First Amendment protects the People's Right
peacefully to poke fun at government agencies, even if the
agency has no sense of humor?
1. The acts alleged + of "preparing and mailing" the
document alleged + is like filing a "declaration of trespass,"
and is protected by the Petition Clause as in U.S. v Hylton, 710
F2d 1106.
2. Given cases like Hylton supra, are the acts alleged
so APPARENTLY protected by the First Amendment, that even if
they are not, prosecution for such acts and such associations
violates the due process of law? That is, 18 U.S.C. 1505, taken
in combination with Hylton and Reeves and the Petition and Free
Speech Clauses, does not give fair warning that the conduct
alleged is prohibited by them, or even prohibitable.
3. Does the use of general laws like 18 U.S.C. 1505
(directed at prohibiting obstruction of justice by use of force
or threats) to intimidate and punish people for exercising
political speech rights not render such general statutes
violative of the First Amendment and thus unconstitutional? The
issue is not just "as applied in this case." DoJ systematically
uses these laws to chill Petition and political speech rights.
Are they not "void for vagueness and overbreadth" because DoJ
interprets "threat" to include "poking fun at government in a
way no rational person could take as a threat?"
POINTS AND AUTHORITIES IN SUPPORT OF MOTION
1. The Act Alleged Is a "Peaceable Assembly to Petition"
The act alleged is, in effect, an allegation that
Defendants corruptly assembled to petition government for a
redress of grievances, where "corruptly" means "the IRS agent
disagrees that they have a right to redress" ... or that the
petition should be mailed to the particular agency; or that it
should be published; or that ... or that ... all the endless
"or thats" which make a difference, in a self-serving agent's
subjective mind, between a "bona fide" exercise of First
Amendment Rights, and a crime punishable by five years in jail.
IF ANY AGENTS mistook this document as a threat within the
meaning of 18 U.S.C. 1505, they should be terminated as so
paranoid they cannot be trusted to deal with the Public under
the Constitution.
Under Hylton, and the face of the First Amendment, the
crime alleged is political speech to government, albeit
sarcastically. When Agents, who naturally feel their conduct is
justified, are free to decide that a highly protected right is
"really" a criminal offense that can put a person in jail for
five years, it is not called "prosecution," but "political
persecution."
U.S. v Hylton elaborated on protected status at 710 F2d
1111:
"As the U.S. Supreme Court has held, the right to
petition for redress of grievances is 'among the most
precious of the liberties safeguarded in the bill of
rights.' (Cites) Inseparable from the guaranteed
rights entrenched in the First Amendment, the right to
petition for redress of grievances occupies a
'preferred place' in our system of representative
government and enjoys a 'sanctity and a sanction not
permitting dubious intrusions.' Thomas v Collins, 323
US 516; 65 S.Ct. 15, 322. Indeed, '[i]t was not by
accident or coincidence that the rights to freedom in
speech and press were coupled in a single guarantee
with the rights of the people peaceably to assemble
and to petition for redress of grievances.' Id. at
323."
What is the essence of the "crime"? It is a difference of
ideas on "proper" ways to Petition Government, and IRS Agent
Mary Ryan wants to make a crime of Defendants' idea of how to
get the attention of a government that systematically refuses to
listen. Said Justice Holmes in his acclaimed dissent in U.S. v
Abrams, 250 US 616 at 630:
"Persecution for the expression of opinions seems to
me perfectly logical. If you have no doubt of your
premises or your power and want a certain result with
all your heart, you naturally express your wishes in
law and sweep away all opposition. To allow opposition
by speech seems to indicate that you think the speech
impotent as when a man says that he has squared the
circle; or that you do not care whole heartedly for
the result; or that you doubt either your power or
your premises. But when men have realized that time
has upset many fighting faiths, they may come to
believe, even more than they believe the very
foundations of their own conduct, that the ultimate
good desired is better reached by free trade in ideas
-- that the best test of truth is the power of the
thought to get itself accepted in the competition of
the market, and that truth is the only ground upon
which their wishes can be safely carried out. That,
at any rate, is the theory of our Constitution."
Imagine: The conduct is a peaceful and sarcastic petition
to government for redress of grievances, but Mary Ryan &
Company think that the great force and might of the United
States is required to stop it by criminal persecution, because
she does not think that such sarcastic speech, to her or about
her, is a good idea.
First, federal agents got special immunities; now it is a
crime to even complain about their conduct; and that does not
abridge the Petition Clause? We must be looking at a different
constitution from the one that Justice Holmes knew.
2. The Statutes Give No Warning for the Conduct Indicted
18 U.S.C. 1505 states:
"Whoever corruptly or by threats of force or by
threatening letter or communication, influences,
obstructs or impedes or endeavors to influence,
obstruct or impede the due and proper administration
of law ...."
The Court is asked to read United States v Reeves, 752 Fed
995 (1985), and apply it to the facts of this Case and 18 U.S.C.
1505.
The indictment violates due process in that the conduct it
indicts is apparently protected under Hylton. The Reeves case
holds that even a "frivolous lien" is close enough to the gray
area to be protected, saying:
"'The Court has a duty to construe a federal statute
to avoid constitutional questions where such a
construction is reasonably possible.' Arnett v
Kennedy, 416 US 134 (1974). This constitutionally
based duty reaffirms our interpretation of the
language of the statute and its legislative history."
U.S. v Reeves, 752 F2d at 1001.
The Reeves court went on:
"Thus, even if the filing of a frivolous common law
lien is not protected by the first amendment
guarantee, such filings are at least adjacent to areas
of protected activity. It is possible that where the
filer has a "bad" motive, the only factor
distinguishing a protected from an unprotected filing
would be the frivolousness of the lien were we to
adopt the trial court's definition of 'corruptly.' In
addressing the free speech guarantee of the first
amendment, the Court has noted that over breadth is
possible where conduct 'falls close to the line
separating the lawful and unlawful, the possibility of
mistaken fact-finding -- inherent in all litigation --
will create the danger that ... legitimate action will
be penalized.' Speiser v Randall, 357 US 513, 526.
Similar considerations apply to the guarantee of
freedom to petition." U.S. v Reeves, 752 F2d at 1001.
3. The Statutes Are Unduly Vague and Unconstitutional
One problem is in the disjunct: "corruptly OR by means of
force." That leaves it up to the agent to interpret "corruptly"
as she pleases. This chills persons from complaining of an
agent's conduct. If the agent disagrees, it is "corrupt"
because the statute states no standard and agents are free to
create their own.
The void for vagueness doctrine requires that a statute
must be precise enough to give fair warning to actors that "the
contemplated conduct is criminal," and it must provide adequate
standards to enforcement agencies, fact finders and reviewing
courts. See Connally v Gen. Const. Co., 269 US 385; Lanzetta v
N.J., 306 US 451; Coluatti v Franklin, 439 US 379; Village v
Flipside, 455 US 489.
An over broad statute which sweeps under its coverage
both protected and unprotected speech and conduct will
normally be struck down as facially invalid, although
in non-first amendment situations the Court would
simply void its application to protected conduct. See
Kunz v NY, 340 US 290; Aptheker v Secretary, 378 US
500; U.S. v Robel, 389 US 258; Lewis v City of New
Orleans, 415 US 130.
Due process requires that courts strike down vague criminal
statutes:
"The essential purpose of the "void for vagueness
doctrine" with respect to interpretation of a
crimninal statute, is to warn individuals of the
criminal consequences of their conduct. ... Criminal
statutes which fail to give due notice that an act has
been made criminal before it is done are
unconstitutional deprivations of due process of law."
U.S. v De Cadena, 105 F.Supp. 202, 204 (1952)
"That the terms of a penal statute creating a new
offense must be sufficiently explicit to inform those
who are subject to it what conduct on their part will
render them liable to its penalties is a well-
recognized requirement, consonant alike with ordinary
notions of fair play and the settled rules of law;
and a st atute which either forbids or requires the
doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and
differ as to its application violates the first
essential of due process of law." Connally et al. v
General Construction Co., 269 US 385, 391 (1926)
Does DoJ's use of general laws like 18 U.S.C. 1505 to
intimidate and threaten Citizens with punishment for exercising
Petition Rights not render such laws unconstitutional? Reeves
says that it does:
"In addition, we have upheld sec. 1503 as not
unconstitutional on vagueness grounds largely because
the statute covers only actions related to pending
judicial proceedings, thus providing adequate notice
to potential violators. (U.S. v Howard, 569 F2d 1331,
1336, n.9) In contrast, the IRS is permitted great
power to intrude on, and investigate virtually every
aspect of economic life to effect its purpose of
administering the tax laws; thus, the narrow
circumstances in which Sec. 1503 applies have no
parallel in cases involving sec. 7212(a). We have
noted in the past that except for those narrow
circumstances, "we would tend to agree ... with the
claim that the statute (1503) ... is
unconstitutionally vague (Howard at 1336). Since sec.
7212(a) is not restrained by the fact that it is
narrowly applicable, we cannot say with as much
assurance that potential violators will be put on
notice that their conduct is 'corrupt' in the eyes of
the law as is the case under Sec. 1503." U.S. v
Reeves, 752 F2d at 999
DoJ/IRS continue to create broad interpretations of
statutes like 18 U.S.C. 1505 to oppress First Amendment
expression, in total disregard of the Court's teaching to
construe those statutes narrowly. By force of its continued
violation of First Amendment rights, 18 U.S.C. 1505, and all
statutes DoJ regularly uses for political oppression, are all
void for vagueness.
It is necessary and proper that statutes which DoJ/IRS
interpret with such liberty as to intentionally chill petition
and speech rights be declared unconstitutional, not because of
any fault of Congress, but because of the repeated abuse by
DoJ/IRS.
Dated: December 28, 1995
______________________________
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U.S.A. v. McKendrick et al.