More evidence suggesting that the indictment against Michael Ioane and Steven and Louise Booth is a sham. We’re still asking, where is the Oath or affirmation, as the fourth amendment requires?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
See the article below by Dan Meador.
Proper Federal Indictment Procedure
By Dan Meador (Rev. 1, April 14, 2000)
People across the country have called for research concerning Federal indictments and how to defend against or attack them. So far as I can tell, there probably hasn’t been a legitimate Federal indictment in the last two or three decades. Consequently, nearly all Federal criminal prosecution should be aborted and verdicts vacated, with the effect of defendants and prisoners being discharged. Therefore, this memorandum is timely.
I haven’t completed research to support each position with case law, but the basic flaws in Federal prosecution default subject matter jurisdiction. If a court lacks subject matter jurisdiction, the action, judgment, or whatever is void, it is a nullity, so where there is a judgment, it should be vacated. Lack of subject matter jurisdiction can be raised at any time without time limit. Rule 60 of the Federal Rules of Civil Procedure is the key to opening old civil or criminal cases. Rule 12(a) & (b) of the Federal Rules of Criminal Procedure should be used for pre-trial motions. Lack of subject matter jurisdiction can be attacked within the existing action, or by an independent action, i.e., via extraordinary writs, including habeas corpus, writ of error coram nobis, writ of prohibition or whatever. See particularly, 28 U.S.C. §§ 2201 et seq. for declaratory judgment, and 28 U.S.C. §§ 2241 et seq., for the original writ of habeas corpus. Motions
within an existing case where there is already judgment should be styled “Motion to Vacate Judgment”, or within an active case, a simple motion to dismiss.
In the course of this memorandum, I will use the phrase “subject matter jurisdiction” to the point readers will probably be sick of it, but this is the key to the Federal prosecution riddle. The basic jurisdictional elements are jurisdiction over the person and jurisdiction over subject matter. Venue, or territorial jurisdiction, is also a consideration, but isn’t treated exhaustively in this discourse.
When working within Federal rules of procedure, it is important to know that the rules preserve constitutionally secured rights. Authority for the Supreme Court to promulgate rules of procedure is at 28 U.S.C. § 2072, and § 2072(b) preserves rights: “(b) Such rules shall not abridge, enlarge or modify any substantive right.”
Federal rules of civil and criminal procedure preserve constitutionally secured rights. Therefore, it is necessary to know and understand the three Amendments that govern Federal criminal prosecution. The Fourth, Fifth and Sixth Amendments follow:
Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The first thing to understand is that all Federal courts, including the Supreme Court, are courts of limited jurisdiction. So-called common law jurisdiction over contracts, historically recognized common crimes, etc., is reserved to courts of the several States within their respective territorial borders. The Tenth Amendment imposes this limitation:
Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If a power is not enumerated in the Constitution, primarily in Article I § 8, Federal government lacks subject matter jurisdiction within the Union. This provides the framework for what is known as the “arising under clause” at Article III § 2, clause 1 of the Constitution:
Section 2. The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority.
View the Constitution as a corporate charter. It enumerates powers of the
Government of the United States, with those powers distributed among three
departments or branches, the legislative, executive and judicial. Except in
very rare and limited cases, one branch cannot exercise power of another.
This is called “separation of powers doctrine.” Each of the powers
enumerated, regardless of what branch it is enumerated for, must be set in
motion by legislation, the legislation being in the form of a “statute” or
law. This is specified at Article I § 8, clause 18:
[The Congress shall have Power] To make all Laws which shall be necessary
and proper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof.
Coming to grips with Article I § 8.18 in the context of the “arising under
clause” at Article III § 2.1 sheds light on United States judicial power and
understanding of “due process of law.” Unless a law vests authority in
Federal administrative agencies, or the courts themselves, courts of the
United States do not have subject matter jurisdiction. And in nearly all
cases, the law is complex, not simple. In other words, in very few instances
does any given statute stand alone. Tax law serves as an example. United
States v. Menk at 260 F.Supp. 784 articulates the point:
“It is immediately apparent that this section alone does not define the
offense as the defendant contends. But rather, all three of the sections
referred to in the information – Sections 4461, 4901 and 7203 – must be
considered together before a complete definition of the offense is found.
Section 4461 imposes a tax on persons engaging in a certain activity;
Section 4901 provides that payment of the tax shall be a condition precedent
to engaging in the activity subject to the tax; and Section 7203 makes it a
misdemeanor to engage in the activity without having first paid the tax, and
provides the penalty. It is impossible to determine the meaning or intended
effect of any one of these sections without reference to the others.”
Any of the crimes listed in Chapter 75 of the Internal Revenue Code (§§ 7201
et seq.) such as failure to file, failure to withhold, and the like, is not
a stand-alone statute. In order to prosecute the Government must (1)
identify a taxing statute, and (2) prove application of a liability statute,
before a penalty statute is applicable. Without the first two elements, a
Federal court lacks subject matter jurisdiction to impose a penalty, whether
civil or criminal. This principle applies to nearly all Federal penalty
statutes, whether relating to tax, commerce, securities or anything else.
Without a preexisting liability to perform or refrain from any given
activity, a Federal penalty statute doesn’t apply. Unless all elements are
in place, the Department of Justice, U.S. Attorney or whatever has failed to
meet threshold criteria for burden of proof, with the effect being that the
Federal court lacks subject matter jurisdiction.
Although I’m not going to get into the subject in this memorandum, it is
also necessary for a department or agency of Federal government to prove
standing. For instance, the Department of the Interior doesn’t have
authority to enforce revenue laws. If an agency isn’t vested with authority
by law, it lacks standing to bring a complaint, so the court lacks subject
matter jurisdiction. We’ll see this in the Code section that specifies who
has authority to make complaints under revenue laws.
I’ll restate the obvious: All courts of the United States are statutory
courts, i.e., courts of limited jurisdiction. Due process of law is
predicated on statutes of the United States that either compel or prohibit a
given activity. The statutory authority is usually complex rather than
simple, i.e., the need for all elements being on the table in order to
establish subject matter jurisdiction.
There is also an additional important element of proof: What is the
geographical application of any given law or set of laws? In Foley Brothers
v. Filardo (1948) 336 U.S. 281, we find that “It is a well established
principle of law that all federal legislation applies only within the
territorial jurisdiction of the United States unless contrary intent
appears.”
Congress has two distinct characters: Where States of the Union are
concerned, Congress may legislate only within the framework of
constitutionally enumerated powers, but where territory belonging to the
United States is concerned, Congress operates with the combined authority of
state and national governments much on the order of European governments,
and may do whatever the Constitution does not expressly or implicitly
prohibit. Where States of the Union are concerned, Congress’ authority is
restrictive; where the District of Columbia, Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Northern Mariana Islands, and smaller
insular possessions are concerned, Congress has plenary or near-absolute
power.
It may be that Congress exercises a general power enumerated in Article I §
8 of the Constitution, but application is limited to the geographical United
States, i.e., territory belonging to the United States. This, then, is
another element of burden of proof, i.e., proof of subject matter
jurisdiction. The advocate, in this case the Attorney General or U.S.
Attorney, must prove the venue or geographical application of any given
statute.
Just because the Constitution enumerates powers United States Government may
exercise doesn’t mean the power has to be exercised. For example, prior to
the Civil War, Congress exercised power to impose direct taxes only twice,
and until after the Civil War, if then, Congress did not vest Federal
courts, including the Supreme Court, with all available jurisdictional
powers enumerated in Article III § 2 of the Constitution. Although it is
beyond the scope of this memorandum, I am convinced that by 1948 virtually
all Federal statutory authority was withdrawn from the Union and ever since
has been applicable only in United States maritime and territorial
jurisdictions.
We will now turn to essentials of due process of law as prescribed in the
Fourth, Fifth, and Sixth Amendments.
We saw at 28 U.S.C. § 2072(b) that Federal rules of procedure may not
deprive anyone of substantive rights. In a manner of speaking, rights
secured by the Fourth, Fifth, and Sixth Amendments are carved in stone, and
they are cumulative, they are not independent or elective unless someone
knowingly chooses to forfeit one of the specified rights. If one of the
constitutionally secured rights is bypassed, administrative offices,
including the Department of Justice and the U.S. Attorney, and courts of the
United States, lack or lose subject matter jurisdiction. This is the essence
of the Fifth Amendment guarantee that no person shall be deprived of life,
liberty or property without “due process of law.”
Here we see two distinct elements: Not only does there have to be law which
compels or prohibits any given activity, but procedure or process must
conform to that prescribed by the “Constitution and laws of the United
States.” The Fourth, Fifth and Sixth Amendments secure mandatory minimum
requirements of due process.
The Fourth Amendment requirement for probable cause, “supported by Oath or
affirmation,” is the jumping-off point: “… no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation…
Here are two secured rights: There must be an oath or affirmation, a
complaint, that specifies key elements of a crime, and a committing
magistrate must issue a warrant based on the complaint. The complaint is
made in a probable cause hearing. Unless or until these threshold
requirements are met, there can be no Federal prosecution.
We will use Federal tax law as an example. At 18 U.S.C. § 3045 we find
authorization for who may set the criminal prosecution process in motion via
an affidavit of complaint:
“Warrants of arrest for violations of internal revenue laws may be issued by
United States magistrates upon the complaint of a United States attorney,
assistant United States attorney, collector, or deputy collector of internal
revenue or revenue agent, or private citizen; but no such warrant of arrest
shall be issued upon the complaint of a private citizen unless first
approved in writing by a United States attorney.”
This Code section needs an amount of qualification: Whoever makes the
affidavit of complaint must have personal knowledge. In other words, an U.S.
Attorney cannot make the affidavit of complaint unless he was personally
involved with the investigation process and has hands-on involvement with
securing and examining evidence.
Our concern is whether or not the Federal Rules of Criminal Procedure
preserve this constitutionally secured right. We find that they do. Rule 3
of the F.R.Crim.P. is specific:
“Rule 3. The Complaint
“The Complaint is a written statement of the essential facts constituting
the offense charged. It shall be made upon oath before a magistrate judge.”
We then go to Rule 4, “Arrest Warrant or Summons Upon Complaint”.
Rules 3 through 9 of the Federal Rules of Criminal Procedure preserve the
proper procedural sequence of the Fourth, Fifth and Sixth Amendments. If any
portion of any of these rules, i.e., of any of the three amendments, is
defective, Courts of the United States lose subject matter jurisdiction.
Before continuing with what should happen, I’ll review what normally
happens.
The first most people know of a Federal investigation is when they receive a
“summons” in the mail, with something akin to an “indictment” attached, or
they are arrested on a warrant with an indictment attached. Occasionally a
U.S. Attorney, the Criminal Division of the Internal Revenue Service, the
FBI or another Federal agency will notify the target of an investigation,
and sometimes the target will be offered the opportunity to testify to a
grand jury. However, whether arrested or summoned, the target’s first court
appearance is at the alleged arraignment after the grand jury has supposedly
issued an indictment. At the hearing, the defendant is asked to enter a
plea. If the defendant refuses to enter a plea, the presiding magistrate,
usually a United States Magistrate Judge, enters a plea for him. After that
ritual, the U.S. Magistrate Judge will either set or deny bond.
Where is the affidavit of complaint, probable cause hearing, et al? Has the
defendant had the opportunity to examine witnesses and evidence against him,
call his own witnesses and present contravening documentary or other
evidence? As we will see, current Federal prosecution practice for all
practical purposes trashes Fourth, Fifth, and Sixth Amendment due process
rights, and it employs the services of quasi-judicial officers who don’t
have lawful authority to do what they’re doing. In sum, current Federal
prosecution practice amounts to a criminal conspiracy among administrative
and judicial officers.
Federal criminal prosecution must begin with the affidavit of criminal
complaint required by the Fourth Amendment and Rule 3 of the Federal Rules
of Criminal Procedure. Without the affidavit of complaint, courts of the
United States do not have subject matter jurisdiction, so whatever ensuing
verdict, judgment and/or sentence there might be is a nullity, it is void
and should be vacated.
We then go to Rule 4, the warrant issued subsequent to the probable cause
hearing. Warrants for seizure and/or arrest must issue following, they
cannot issue without a probable cause hearing.
The Federal courts are presently relying on Rule 9(a), “Warrant or Summons
Upon Indictment or Information”. Rule 9(a), in relative part, stipulates
that, “Upon the request of the attorney for the government the court shall
issue a warrant for each defendant named in an information supported by a
showing of probable cause under oath as is required by Rule 4(a), or in an
indictment … More than one warrant or summons may issue for the same
defendant … When a defendant arrested with a warrant or given a summon
appears initially before a magistrate judge, the magistrate judge shall
proceed in accordance with the applicable divisions of Rule 5.”
They then jump to Rule 10, the arraignment, rather than dropping back to
Rule 5, as Rule 9 specifies. Rule 5 is “Initial Appearance Before the
Magistrate Judge.”
Grand juries have certain investigative powers. If in the course of
investigating a cause of action that is lawfully before them, grand jury
members may find evidence sufficient to recommend additional charges, or
name additional defendants, by way of presentment. However, if the original
complaint against the primary defendant for a specific offense is not before
it, the grand jury has no basis for initiating an investigation. There must
be original probable cause determined by a committing magistrate, with the
finding of probable cause being predicated on the antecedent complaint.
We’re going to use Rule 6(b)(1) to demonstrate this point:
“(1) Challenges. The attorney for the government or a defendant who has been
held to answer in the district court may challenge the array of jurors on
the ground that the grand jury was not selected, drawn or summoned in
accordance with law, and may challenge an individual juror on the ground
that the juror is not legally qualified. Challenges shall be made before the
administration of the oath to the jurors and shall be tried by the court.”
The right to challenge grand jury array (composition) and individual jurors
is antecedent to individual jurors being administered the oath required
prior to a grand jury being formally seated. The government attorney and the
defendant, or the defendant’s counsel, both have the right to challenge
array and disqualify grand jury candidates prior to the grand jury being
seated. If this right has been denied, there is a simple solution at Rule
6(b)(2):
“(2) Motion to Dismiss. A motion to dismiss the indictment may be based on
objections to the array or on the lack of legal qualification of an
individual juror, if not previously determined upon challenge. It shall be
made in the manner prescribed in 28 U.S.C. § 1867(e) and shall be granted
under the conditions prescribed in that statute. An indictment shall not be
dismissed on the ground that one or more members of the grand jury were not
legally qualified if it appears from the record kept pursuant to subdivision
(c) of this rule that 12 or more jurors, after deducting the number not
legally qualified, concurred in finding the indictment.”
Rule 6(c) requires the grand jury foreman to record the vote, then file a
letter or certificate of concurrence with the clerk of the court.
If the original defendant or his counsel did not have the opportunity to
challenge the grand jury array (composition selection process) and
individual grand jurors prior to the grand jury being seated, they’re all
disqualified as the qualification process is among the defendant’s
constitutionally secured due process rights. By consulting Chapter 121 of
Title 28 generally, and 28 U.S.C. § 1867 specifically, we find that there is
no distinction in the voir dire examination and other jury qualification
process for grand juries or petit trial juries:
“(a) In criminal cases, before the voir dire examination begins, or within
seven days after the defendant discovered or could have discovered, by the
exercise of diligence, the grounds therefor, whichever is earlier, the
defendant may move to dismiss the indictment or stay the proceedings against
him on the ground of substantial failure to comply with the provisions of
this title in selecting the grand or petit jury.”
If a defendant doesn’t know a grand jury is investigating him, he doesn’t
have the opportunity to challenge the grand jury array, or individual grand
jurors. Consequently, he has been deprived of substantive due process, which
is expressly prohibited by 28 U.S.C. § 2072(b).
We have an adversarial judicial system. All parties to any given action, the
government included, stand on equal ground. The system isn’t set up for
convenience of the government. Government always has the burden of proof,
whether in civil or criminal matters. The defendant has the right to
challenge the qualifications and competency of everyone involved in the
prosecution process, inclusive of grand and petit jurors selected from
“peers” who ultimately have responsibility for determining indictable
offenses and/or final liability. If and when government personnel deprive
the Citizen of any of these rights, constitutionally secured due process of
law is abridged. In that event, courts lose subject matter jurisdiction.
Now consider Rule 6(f), F.R.Crim.P.
“(f) Finding and Return of Indictment. An indictment may be found only upon
concurrence of 12 or more jurors. The indictment shall be returned by the
grand jury to a federal magistrate judge in open court. If a complaint or
information is pending against the defendant and 12 jurors do not concur in
finding an indictment, the foreperson shall so report to a federal
magistrate judge in writing forthwith.”
This section of Rule 6 specifies foundation necessities: Federal government
may prosecute felony crimes only on a valid affidavit of complaint that has
been presented in a probable cause hearing (Rules 3 & 4). Only corporations
can be prosecuted via “information.” Rule 6(f) preserves the antecedent
affidavit of complaint and probable cause hearing in the second sentence:
The grand jury may proceed only on “complaint” or “information” that has
previously been formally processed. Additionally, if the grand jury issues
an indictment, the return must be made in open court to a magistrate judge.
The return should appear on the case docket, and a transcript of the hearing
should be available. A return of an indictment is the same as the petit
trial jury return of a verdict.
In practice, any given grand jury returns several indictments at once.
However, when we understand the indictment process, it is clear that the
grand jury pool may be held over for several months, but any given grand
jury is empanelled to consider only one charge or set of charges in related
cases. To date, we haven’t found where an indictment for any single case or
set of related cases has been returned in open court, and a transcript of
the proceeding made available.
Rule 8 governs limits of the reach of any given grand jury, Rule 8 being
“Joinder of Offenses and of Defendants.”
During any court or jury session, any given juror might sit on one or more
grand or petit juries, but each jury has limited subject matter
jurisdiction. Where the grand jury is concerned, it may proceed only from an
original complaint where probable cause has been found to issue additional
indictments and/or name additional defendants where the crimes “are of the
same or similar character or are based on the same act or transaction or on
two or more acts or transactions connected together or constituting parts of
a common scheme or plan.” (Rule 8(a)) Rule 8(b) specifies criteria for
naming additional defendants.
Here is where our reservation of rights in Rule 9(a) comes in: “When a
defendant arrested with a warrant or given a summons appears initially
before a magistrate judge, the magistrate judge shall proceed in accordance
with the applicable subdivisions of Rule 5.”
We will first consider Rule 5(b) and the first portion of Rule 5(c):
“(b) Misdemeanors and Other Petty Offenses. If the charge against the
defendant is a misdemeanor or other petty offense triable by a United States
magistrate judge under 18 U.S.C. § 3401, the magistrate judge shall proceed
in accordance with Rule 58.
“(c) Offenses not Triable by the United States Magistrate Judge. If the
charge against the defendant is not triable by the United States magistrate
judge, the defendant shall not be called upon to plead…
What is now known as the United States Magistrate Judge was originally a
national park commissioner. The name of the office has changed, but the
nature of the office hasn’t. This is an administrative, not a judicial
office. It’s equivalent to what used to be the police court magistrate.
Today the only offenses triable by a United States Magistrate Judge are
traffic violations and other misdemeanor and petty offenses committed on
military reservations, in national parks and forests, etc., under
regulations promulgated by the Department of Defense and the Department of
the Interior. Don’t capture wild burrows and mustangs in national parks
without a permit as that is a misdemeanor offense triable by a United States
Magistrate Judge.
United States Magistrate Judges in the several States have “venue”
jurisdiction solely over offenses committed on Federal enclaves where United
States Government has exclusive or concurrent jurisdiction ceded by one of
the several States. And as Rule 5(c) specifies, they cannot even ask for,
much less make a plea for a defendant charged with a felony crime. This
prohibition is effective under Rules 5, 9, 10 & 11. When and if a United
States Magistrate Judge asks for or makes a plea for a defendant in a felony
case, he has usurped power vested in Article III judges of the United
States. When this quasi-judicial officer exceeds authority Congress vested
in him by law, the United States loses subject matter jurisdiction and there
are grounds to pursue lawful remedies, both civil and criminal. Government
officials, regardless of capacity, enjoy the cloak of immunity only to the
outer reaches of their lawful authority. The notion of blanket judicial or
any other absolute immunity is nothing more than a convenient fiction.
Rule 5(c), second paragraph, also stipulates that, “A defendant is entitled
to a preliminary examination, unless waived, when charged with any offense,
other than a petty offense, which is to be tried by a judge of the district
court.”
We’re going to continue with this subsection, but it is useful to understand
the term “magistrate judge” as opposed to “United States Magistrate Judge”
or “United States magistrate judge.”
The President of the United States is the nation’s highest “magistrate.” In
other words, the “magistrate” is a ministerial, not a judicial office. All
lawful judges function in a magistrate capacity when they preside at
probable cause hearings, initial appearances and the like. In a sense, this
is an “extra-judicial” capacity that within proper context can be vested in
or exercised by administrative or judicial officers. The United States
Magistrate Judge is an administrative office with quasi-judicial capacity
limited to specific subject matter, where the “district judge” of the United
States is vested with the full range of United States judicial authority,
i.e., his extra-judicial capacity as magistrate judge extends to Federal
offenses of all stripes.
Essentials of the preliminary hearing or examination are prescribed at Rule
5.1(a) of the Federal Rules of Criminal Procedure:
“(a) Probable Cause Finding. If from the evidence it appears that there is
probable cause to believe that an offense has been committed and that the
defendant committed it, the federal magistrate judge shall forthwith hold
the defendant to answer in district court. The finding of probable cause may
be based upon hearsay evidence in whole or in part. The defendant may
cross-examine adverse witnesses and may introduce evidence…
Now we go back to Rule 5(c), second paragraph:
“A defendant is entitled to a preliminary examination, unless waived, when
charged with any offense, other than a petty offense, which is to be tried
by a judge of the district court. If the defendant waives preliminary
examination, the magistrate judge shall forthwith hold the defendant to
answer in the district court. If the defendant does not waive the
preliminary examination, the magistrate judge shall schedule a preliminary
examination. Such examination shall be held within a reasonable time but in
any event not later than 10 days following the initial appearance if the
defendant is in custody and no later than 20 days if the defendant is not in
custody, provided, however, that the preliminary examination shall not be
held if the defendant is indicted or if an information against the defendant
is filed in district court before the date set for the preliminary
examination…
If a defendant is joined to an indictment under Rule 8, he has the right to
a preliminary hearing under Rule 5.1. This assures his opportunity to
challenge witnesses and present evidence before being subjected to the trial
process. The right is particularly important where government prosecutors
routinely play “let’s make a deal” to secure incriminating testimony from
questionable witnesses.
We will now summarize indispensable or “substantive” elements of Federal
criminal prosecution:
The criminal prosecution process may commence if and only if there is an
affidavit of criminal complaint submitted under oath in a probable cause
hearing. (Rule 3, F.R.Crim.P.)
A committing magistrate judge must issue a warrant or summons after finding
probable cause. (Rule 4, F.R.Crim.P.)
The defendant may be arrested and “returned” by the appropriate Federal
authority. (Rule 4, F.R.Crim.P.)
The defendant then has an initial appearance at which he is asked to enter a
plea, and bond, if any, is set. If the offense is a felony offense, a United
States Magistrate Judge may not ask for or enter a plea. The defendant is
entitled to a preliminary hearing unless an indictment or information
(against a corporation) is returned prior to a preliminary hearing. In the
event that the defendant is “joined” by a grand jury under Rule 8 and has
not previously been arrested, the Federal criminal prosecution process
begins here, and the defendant is entitled to a preliminary hearing. (Rule
5, F.R.Crim.P.)
If the defendant exercises his right to a preliminary hearing, he has the
opportunity to cross-examine adverse witnesses and he may introduce his own
evidence, whether the evidence is via witnesses or is documentary in nature.
(Rule 5.1, F.R.Crim.P.) The preliminary examination may be bypassed only in
the event that the defendant waives the right, or indictment issues
subsequent to the initial appearance.
The defendant, or his counsel, has the right to challenge array of the grand
jury pool and voir dire individual grand jury candidates prior to the grand
jury being sworn in. (Rule 6(b), F.R.Crim.P. & 28 U.S.C. § 1867).
In the course of its investigation, based on an affidavit of complaint and
the finding of probable cause, a grand jury may by “presentment” issue
additional indictments and/or join additional defendants in compliance with
provisions of Rule 8, F.R.Crim.P.
The grand jury must return indictments in open court, and the grand jury
foreman must file a letter or certificate of concurrence with the clerk of
the court. (Rule 6(f), F.R.Crim.P.)
A warrant or summons may issue against additional parties joined to an
original complaint under provisions of Rule 8 subsequent to grand jury
deliberation and return of indictment in accordance with Rule 6. (Rule 9,
F.R.Crim.P.)
After all previous conditions are met, as applicable, a defendant may be
arraigned and called on to plead. (Rules 10 & 11, F.R.Crim.P.)
From my research, it appears that the Department of Justice and United States Attorneys are convening grand juries under auspices of the “special grand jury” provisions in Chapter 216 (§§ 3331-3334) of Title 18. However,
this is misapplication of law as special grand jury investigation authority
extends only to criminal activity involving government personnel, and the
grand jury is limited to issuing reports. Defendants and prospective
defendants are afforded the opportunity to rebut or correct the reports
prior to public release. Although evidence unearthed by the special grand
jury may be used as the basis of criminal prosecution, the special grand
jury does not have indictment authority.
It appears that the first steps toward securing secret indictments were
taken during prohibition days to shield grand jury members from reprisal.
Although secret indictments were and are patently unconstitutional, the
extreme remedy in the midst of highly volatile and dangerous circumstance
was rationalized in the midst of what amounted to domestic war with
organized crime. Unfortunately, as other such rationalizations, those who
found the extraordinary process convenient incorporated it as routine
practice.
Rule 60(b) of the Federal Rules of Civil Procedure preserves causes to
challenge judgments. They are as follows:
Mistake, inadvertence, surprise, or excusable neglect;
Newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b);
Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
The judgment is void;
The judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or
it is no longer equitable that the judgment should have prospective
application; or
Any other reason justifying relief from the operation of the judgment.
The rule then specifies, “The motion that shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken. A motion under this
subdivision (b) does not affect the finality of a judgment or suspend its
operation. This rule does not limit the power of the court to entertain an
independent action or relieve a party from a judgment, order, or proceeding,
or to grant relief to a defendant not actually personally notified as
provided in Title 28, U.S.C. § 1655, or to set aside a judgment, for fraud
upon the court. Writs of coram nobis, bills in the nature of a bill of
review, are abolished, and the procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules or by an
independent action.”
There are two keys in Rule 60(b). First, Rule 60(b)(4), where the “judgment
is void,” opens the door to vacating a judgment at any time, and second, the
void judgment may be attacked “by motion as prescribed in these rules or by
an independent action.”
A judgment is void where the court lacked subject matter jurisdiction. The
court lacks subject matter jurisdiction when and if the administrative
agency has proceeded without statutory authority, or the administrative
agency has deprived the defendant of substantive due process rights. Where
the court lacked subject matter jurisdiction, the judgment is void; it has
no lawful effect, so it should be vacated. The defendant may proceed by
motion at any time, without the encumbrance of time limitation, or may
initiate collateral attack via the extraordinary writs, i.e., an independent
action.
