Attorney at Law*
200 Reynolds Street
Brundidge, AL 36010
Tel: 334-735-9050 Internet: email@example.com
February 20, 1998
Ms. Nancy McGillivray U.S. Marshal Massachusetts
By fax to: 1-617-223-9726 1-413-785-0231 1-617-223-4737
cc: General Janet Reno
U.S. Attorney General Command Center, 1-202-514-5778
Donald Stearn, U.S. Attorney
By fax to: 617-223-4825
In Re: U.S. vs. Sweeney
Dear Ms. McGillivray:
This afternoon, by fax (which is not legal notice, as you know), I received from your office for the first time copies of the orders you are intending to serve. These were dated May 29, but noted as “nunc pro tunc,” meaning they were entered at some time later than the actual date on the order (this morning for all we know, particularly since it is already established that the Federal Court clerk in Boston backdates entries in the computer record, and has done so in this case time and again).
One point looms foremost (if the orders were legitimate): The orders direct the Marshal’s Service to serve them, but they are not required to be served in person. Service by mail would obviate the need for any personal meeting whatsoever. If these orders really issued in May, it’s astounding that no one has bothered to serve these orders at all in all this time by simple means of certified mail, Fed.R.Civ.P. 4.
Not only that, by the wording of the order itself, the Marshal’s service has 20 years from the TIME OF SERVICE to effect any forcible removal (see second page of each order).
So just who is it that has been egging on the “personal service” and “fearing a dangerous confrontation?” We know who has been making all the threats and it certainly hasn’t been anyone on the Sweeney’s side. These orders in themselves are clear proof that neither the FDIC nor the U.S. Marshal’s service has been acting in good faith because these orders could have and should have been presented, long ago, by mail.
Then and only then, could anyone have claimed the Sweeneys were “ordered to vacate” or to have made all the belligerant demands on the Sweeneys to “just leave or else.”
Over these months, Attorney Steve Gordon requested copies of these orders in writing. I have repeatedly requested copies.
Instead, the Sweeneys have been subjected to a smear campaign in the media, to threats from the FDIC, and the constant harangue and stress on them, about orders they’ve never even seen, which on their face are unlawful, and threats of wholly unnecessary action. In the meantime, the Sweeneys have been subjected to spy surveillance from airplanes commandeered by the local flying club, where a U.S. Marshal just happens to be a member, and to having their neighbors asked to put up spy cameras for the Marshals’ service in their homes, to spy on the Sweeneys.
Next, today we learned that on January 15, 1998, the U.S. Marshal’s service and the U.S. Attorney’s office filed motions in this case secretly and obtained five SECRET ORDERS without ANY hearing or notice to the Sweeneys whatsoever, and then all five of these orders were sealed.
So now we have secret trials and orders? In a civil case? In the United States?
Neither the U.S. Marshals nor the U.S. Attorney has any standing in this case whatsoever and no legal right whatsoever to file ANY motion in the case, much less FIVE EX PARTE secret motions, that are then granted by a Judge we have already established is corrupt, who so very obligingly sealed these secret and illegal orders -- the very same Judge both of you refuse to investigate for his clearly collusive and criminal conduct. Instead, you perpetuate the same course of conduct in concert with him. Every person who has violated the law and their oaths of office and who has caused harm to the Sweeneys will be held accountable for their conduct. Please be governed accordingly.
Your attention is once again directed to the illegality of the orders you claim you intend to enforce and the manner stated to me in which you intend to effect those orders, on the following additional bases:
1. The orders to forcibly remove the Sweeneys and ordering the Sweeneys to leave the properties exceed the judgment of March, which only awards possession to FDIC.
2. The Federal Court was required to follow Massachusetts law. Under Massachusetts law, the Sweeneys were entitled to notice, and a jury trial, not merely a hearing, on the issue of eviction prior to the order of possession. This is also a fundamental -- and thus, nonwaiverable -- requirement of due process in the Federal Courts, too.
“When a state deprives a person of liberty or property through a hearing held under statutes and circumstances which necessarily interfere with the course of justice, it deprives him of liberty and property without due process of law. Moore v. Dempsey, 261 U.s. 86; Frank v. Mangum, 237 U.s. 309.”
Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927).
3. Additionally, no tenants are named in any of the orders, nor has any tenant or other resident of the property received any notice or hearing whatsoever. None of the corporate trusts involved in the litigation, each of whom was a named litigant in the case, each of whom claims to be lawful owners of the property and each of whom are in possession, is named in any of these orders, either.
4. The award of possession was all that was included in the March judgment and that is the only thing that could lawfully be addressed in any subsequent order, which cannot include eviction absenta jury trial concerning the eviction. The relevant law is appended hereto.
5. An order which states that the persons must be served and then if they don’t vacate “immediately,” that they shall be forcibly removed, amounts to a preemptory order to make an illegal seizure and an illegal arrest. It leaves the determination of probable cause wholly up to the subjective determination and summary execution of a police officer, which is wholly in violation of the 4th Amendment to the Constitution of the United States.
6. A person restrained by police is considered arrested,‘[i]f, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ Mendenhall, 446 U.S at 554 (footnote omitted); see Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion).” INS v. Delgado, 466 U.S. 210 (1984) (emphasis added); see also Florida v. Bostick, 501 U.S. 429 (1991). However, a person may not be arrested, absent a showing of probable cause and the issuance of a warrant. U.S.Const. Amend. IV; Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), reh'g denied, 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969)).
An arrest, or “forcible eviction” cannot be made absent probable cause and the issuance of a warrant of arrest. Likewise, there is no such thing as a lawful preemptory order which anticipates its disobedience and dispenses with the formalities of a finding of probable cause and the issuance of an arrest warrant -- which, nonetheless, the orders you have in your possession clearly do.
7. You also stated to me that “all the property” (everyone’s), including cars and whatever else was on the property, would be “secured” and “turned over to the FDIC” and we might “end up in court” trying to get it back.
First of all, not even the orders you possess presume to accord this authority. Further, you are strictly prohibited from seizing the personal effects of all these people by the Constitution, which as you should know is the “Supreme Law” of the land (U.S. Const. Art. VI, § 2, Supremacy Clause) and its limitations apply strictly to you as a government actor. Forcibly seizing anyone on that property and “securing” (seizing) any of their property, would constitute a warrantless seizure and search and would be per se unreasonable and therefore illegal under the U.S. Constitution. There is an even greater prohibition in that the entity you claim you intend to “secure” these items for is itself a government agency, and limited by the constraints of the Fourth Amendment to lawful seizures.
The Fourth Amendment of the Constitution of the United States, mandates your observance of the right of the people to be free of unreasonable search and seizure of their persons and property:
“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.”
U.S. Const. Amend. IV [emphasis added].
U.S. Const. Amend. IV is a declarations by the People of unalienable rights of the people that are limitations on the government.
“Shall not be violated” is a plain, straightforward mandate. It does not say, “Government employees can do what they want and we’ll sort it out later.” It says this (God-given, unalienable) right “shall not be violated.” The burden is on the government to observe the right and to then prove that it was not violated.
The centerpiece of federal search and seizure jurisprudence is the warrant requirement of the Fourth Amendment. Searches and seizures conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specific and well delineated exceptions. Minnesota v. Dickerson, 113 S.Ct. 2130, 2135 (1993); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967).
Please note that the “prior approval” of a magistrate is itself conditioned upon a clear showing of probable cause that a crime has been committed.
The protection of the Fourth Amendment extends to a person's effects, which include automobiles, though to a lesser degree than it protects homes. Cady v. Dombrowski, 413 U.S. 433, 439-440, 93 S. Ct. 2523, 2527, 37 L. Ed. 2d 706, 713-14 (1973).
Once it has been shown that a search was conducted without a warrant, the burden shifts to the state to demonstrate that the search or seizure falls within one of the exceptions. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), reh'g denied, 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969)).
Additionally, the Marshal’s Service would have no legal powers of arrest
outside federal property and on property located within a state, absent
a warrant, which requires a showing of probable cause that a crime has
8. Earlier today, you mentioned “contempt of court.” You’ll have a very difficult time getting people held in “contempt” of an order you’ve had nearly a year to serve and couldn’t bother to put in the mail, while the Sweeneys have yet to see it and everyone has refused to provide copies of any of these orders for months, even with a written request from counsel, including the FDIC and yourselves.
However, an arrest for “contempt of court,” requires that either the contempt occur in the direct presence of the judge, in court, or otherwise, it is indirect contempt of court or criminal contempt, both of which entitle the person to a jury trial, and do not afford “summary arrest” proceedings, absent a warrant and probable cause.
“This Court has not revisited the issue of coercive civil contempt fines
addressed in United Mine
Workers. Since that decision, the Court has erected substantial procedural protections in other
areas of contempt law, such as criminal contempts, e.g., Bloom, 391 U. S. 194, and summary
contempts, e.g., Taylor v. Hayes, 418 U. S. 488; Codispoti v. Pennsylvania, 418 U. S. 506,
513 (1974); Johnson v. Mississippi, 403 U. S. 212 (1971); In re Oliver, 333 U. S. 257, 275
(1948) . . . . The traditional justification for the relative breadth of the contempt power has been
necessity: Courts independently must be vested with power to impose silence, respect, and decorum,
in their presence, and submission to their lawful mandates, and . . . to preserve themselves and their
officers from the approach and insults of pollution. Anderson v. Dunn, 6 Wheat. 204, 227 (1821).
Courts thus have embraced an inherent contempt authority, see Gompers, 221 U. S., at 450; Ex
parte Robinson, 19 Wall. 505, 510 (1874), as a power-necessary to the exercise of all others.
United States v. Hudson, 7 Cranch 32, 34 (1812). But the contempt power also uniquely is liable
to abuse. Bloom, 391 U. S., at 202, quoting Ex parte Terry, 128 U. S. 289, 313 (1888)."
International Union v. Bagwell, U.S. Supreme Court No. 92-1625 (June 1994).
“[I]n [criminal] contempt cases an even more compelling argument can
be made [than in ordinary
criminal cases] for providing a right to jury trial as a protection against the arbitrary exercise of official power.
Bloom, 391 U. S., at 202. . . . Direct contempts also cannot be punished with serious criminal
penalties absent the full protections of a criminal jury trial. Bloom, 391 U. S., at 210.”
An additional reason that Judge Harrington cannot issue an order anticipating its disobedience and ordering the forcible eviction of the Sweeneys is that even a criminal or indirect “contempt” charge may not be heard by the judge who issued the order. The Sweeneys would also be entitled to a Jury trial -- all assuming they weren’t illegally arrested in the first place in some spontaneous and illegal forcible grab on their property.
If any of those “secret” orders you obtained were arrest orders, they were obtained illegally, since there could be no probable cause since the Sweeneys have never been served with any order to vacate the property, and therefore cannot be in contempt of them; further, the orders which exist are plainly unlawful.
9. You are required by Massachusetts law to afford 48 hour notice prior to an eviction, after legal service of the order of possession, and after a lawful jury trial on the issue of an eviction. The relevant law is attached.
10. Even if all the Massachusetts law requirements were satisfied and they clearly are not, the U.S. Marshal’s service has no lawful authority within Massachusetts to effect a forcible eviction, nor does the U.S. District Court have authority to issue such an order to be executed upon property within a state and outside the territory and enclaves of the United States. The order must be domesticated by a state court, and again, this affords the Sweeneys a right to a hearing on the issue of eviction. Your authority is derived from legislative delegation and the limits of that authority are set forth clearly at Article I, Section 8, Clause 17, as well as at Amendments Nine and Ten to the U.S. Constitution.
11. You are prohibited by Massachusetts law from serving any possession order before 9:00 a.m. or after 5:00 p.m. or on a Saturday, Sunday or legal holiday and you must afford 48 hours notice. Please note the attached law.
Gordon and Wise are preparing an emergency motion to stay these orders based upon these and other deficiencies.
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