!-- Document created on Thursday, March 4, 1999 --> Memorandum of Law Regarding Right to a Jury Trial
United States District Court
for the District of Massachusetts

United States)
- vs - )   Criminal Docket
  )   #98-10079-REK
JOHN F. SWEENEY,Jr.
Defendant.         )


MEMORANDUM OF LAW
REGARDING RIGHT TO JURY TRIAL

        COMES NOW JOHN F. SWEENEY, JR. and respectfully responds to the order of this Honorable Court to brief the issue of John Sweeney's right to jury trial:
I. Facts Relevant to this Memorandum:
        
        JOHN F. SWEENEY, JR. ("John Sweeney" or "Mr. Sweeney") is charged with Criminal Contempt of Court in violation of 18 U.S.C.
' 401(3) for allegedly failing to vacate his own home upon an allegedly lawful order of a District Court that was never served upon him nor his four attorneys at any time from May 1997 to February 1998.

        On February 27, 1998, US Marshals ostensibly serving an order to vacate the property, instead, seized John Sweeney's house on Bay Road, which was one of two of his homes on fourteen acres of land in Hamilton, MA. The Marshals also seized all the contents of the Bay Road home, the fourteen acres of land, and several vehicles on the land. The Marshals set up a command center in the Bay Road home, using the furniture, TV, telephones and bathrooms, and thus occupied the property until the next day at approximately 5:15 p.m., when they forcibly broke into John Sweeney's other home on Meyer Lane, seizing him without a warrant, arresting him for "contempt of court," and seizing the Meyer Lane home and all its contents. The US Marshals then controlled both houses and all the contents thereof, as well as the fourteen acres of land and the vehicles that had been seized on the property. On March 1, two days after the lawless arrest of John Sweeney and seizure of all his earthly possessions, without warrant, began, the US Marshals released everything to a government-contracted storage facility and movers, who loaded the contents of both houses, valued at more than $2 million, into two semi-trailers and subsequently sold the contents for $500.00. John Sweeney was charged with "criminal contempt of court" under 18 U.S.C. 401(3) for allegedly failing to obey an allegedly lawful court order that was allegedly served on him.

II. Procedural History Relevant to this Motion

        At his arraignment on charges filed by complaint on March 2, 1998, John Sweeney filed three motions, which included a Motion for Probable Cause hearing, a detailed Brady Motion, and an omnibus motion which included a demand for Jury Trial, a speedy trial demand, a demand for indictment, and a motion for additional time to file motions and memoranda. These motions are not reflected in the Court's docket on March 2, however an indictment followed on March 18, the same date the Magistrate had set for a probable cause hearing in response to the Motion for Probable Cause hearing. So, instead, the hearing on March 18 became an arraignment on the same charge by indictment. At the March 18 hearing, where John Sweeney appeared without counsel, Magistrate Swartwood specifically names and acknowledges the motions previously filed by John Sweeney, naming them by name (Excerpted pages 6-8 of the Transcript of the March 18, 1998 hearing, This transcript is appended to the Defendant's Motion to Dismiss for Loss and Destruction of and Failure to Produce Exculpatory Evidence, and is incorporated by reference herein, rather than appending it to this motion again.

        At pg. 6 of the transcript of the March 18, 1998 hearing, lines 16-19, the Court addresses the Motion for Probable Cause hearing. At pg. 7, lines 2-8, the court addresses John Sweeney's demand for jury trial, demand for indictment, Brady material motion, demand for speedy trial, and motion for additional time to file motions and memoranda. The Brady Motion [Brady v. Maryland, 373 U.S. 83, 87 (1963)] was a separate motion from the others, which were contained in a single motion and referred to herein as the "omnibus motion."] The Court states that these motions will be designated "Exhibits" and labels them Exhibits A and B. The Court does not explain what, if any, significance attaches to calling properly filed motions "exhibits."

        At the same hearing on March 18, 1998, Magistrate Swartwood specifically stated to John Sweeney (Transcript of March 18, 1998 hearing, Pg. 8, lines 10-14, Exhibit 5) that he is entitled to a jury trial of 12 persons and that this happens automatically.

        At no time has the court asked John Sweeney whether he has or will knowingly or intentionally waive any of the rights he has very obviously asserted by filing these motions.

        The government filed a motion with the Court opposing the right to jury trial of JOHN F. SWEENEY, JR. ("Mr. Sweeney") and the Court directed that the matter be briefed by both sides.

        It is the government's position that no right of jury trial exists. The gravamen of this assertion turns upon a claim by the government that the charge herein is the equivalent of a "misdemeanor" case and that misdemeanor cases are not entitled to jury trial.

        It is the position of the People of the United States, the Constitution and law of the United States, the U.S. Supreme Court, and Mr. Sweeney that he, as a person entitled to the protections of the U.S. Constitution, determines and asserts the right to jury trial, not the nature of the proceedings against him nor the government proceeding against him.

        It is the position of the People of the United States, the Constitution and law of the United States, the US Supreme Court, Magistrate Swartwood, and Mr. Sweeney that John Sweeney is entitled to a jury trial of 12 of his peers. Anything less would be a clear violation of his right to due process protected by the Fifth, Sixth, Ninth and Tenth Amendments to the Constitution of the United States and to Jury Trial as protected by the Sixth, Ninth, and Tenth Amendments to the Constitution of the United States.
        III. The People of the United States say
John Sweeney is Entitled to Jury Trial:

        "With the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process." Powers v. Ohio, 499 U.S. 400, 407 (1991)."
"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."

U.S. Constitution, 6th Amendment (emphasis added).

        The Bill of Rights had to be added to the United States Constitution before the States would ratify the Constitution. This Bill of Rights declares rights of the People that the government cannot infringe. One of those declared rights, the Sixth Amendment, plainly protects the right of jury trial in all criminal prosecutions. The U.S. government has no authority to limit or otherwise "interpret" the plain meaning of the Constitution, which is in fact, a limit on the government's authority itself.
        This is also made clear at Article VI,
d 2, the "Supremacy clause," which reads:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding."

U.S. Constitution, Article VI,
d 2 (emphasis added).
        The lack of authority for the U.S. government to attempt to curtail a Constitutionally protected right is shown not only in the plain wording of the Sixth Amendment, but also in the 10th Amendment:
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. 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."

U.S. Constitution, 10th Amendment (emphasis added).
        Nowhere in the Constitution is the government given any authority to limit the rights declared in any amendment, including the right to jury trial in criminal cases declared in the Sixth Amendment. The Sixth Amendment itself also noticeably does not say "except in some cases, as may be declared by the government."
        The Sixth amendment protections are backed up by the due process requirements of the Fifth Amendment, plus the reservation of rights of the people declared in the Ninth Amendment:
"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 any person be subject, for the same offence, to be twice put in jeopardy of life or limb; 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."

United States Constitution, 5th Amendment
        The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

U.S. Constitution, 9th Amendment.

        This also demonstrates why, contrary to the government's assertions, the "level" of the offense is not determinative of whether or not a person is entitled to a jury trial. The government has no authority to determine which criminal offenses entitle a person to jury trial. The Constitution declares that all criminal cases are entitled to jury trial, and it is the Defendant who has the authority to declare and assert this right, which the government cannot infringe.

IV. The Statutory Law of the United States
says John Sweeney is Entitled to a Jury trial:

18 U.S.C.
d 3691. Jury trial of criminal contempts

"Whenever a contempt charged shall consist in willful disobedience of any lawful writ, process, order, rule, decree, or command of any district court of the United States by doing or omitting any act or thing in violation thereof, and the act or thing done or omitted also constitutes a criminal offense under any Act of Congress, or under the laws of any state in which it was done or committed, the accused, upon demand therefor, shall be entitled to trial by a jury, which shall conform as near as may be to the practice in other criminal cases. This section shall not apply to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the
name of, or on behalf of, the United States."

18 U.S.C.
d 3691 (emphasis added).

        Criminal contempt is a crime in the ordinary sense, Bloom v. Illinois, 391 U. S. 194, 201 (1968); Hicks v. Feiock, 485 U. S. 624, 632 (1988). Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444 (1911).
        The government has charged John Sweeney with "Criminal contempt" as a criminal offense under an Act of Congress, as codified at 18 U.S.C.
d 401(3), and therefore, pursuant to 28 U.S.C. 3691, John Sweeney is plainly entitled to a jury trial.
        The U.S. Attorney's office has continuously claimed that there is "no maximum term of imprisonment stated in the statute as a matter of law." (That may well be because the U.S. attorney's office has used the wrong statute and it is not intended as a criminal statute. See, e.g., Defendant's Motion to Dismiss the Indictment for Insufficiency, filed contemporaneously herewith. However, the US Attorney's office has consistently claimed that since there is no maximum term of imprisonment stated in the statute, that "the maximum term of imprisonment is life imprisonment. The maximum fine would be $250,000, supervised release of five years and a special assessment of $100." Transcript of April 20, 1998 hearing, page 4, lines 1-5, AUSA Timothy Feely speaking. This transcript is appended to the Defendant's Motion to Dismiss for Loss and Destruction of and Failure to Produce Exculpatory Evidence, and is incorporated by reference herein, rather than appending it to this motion again.
        
V. The US Supreme Court says
John Sweeney is entitled to a Jury Trial

        "All laws which are repugnant to the Constitution are null and void."
Marbury v. Madison (1803), 5 U.S. 137, 174, 176.
****

        "Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them."

Miranda v. Arizona
384 U.S. 436, 491 (1966).

****
        The U.S. Supreme Court has specifically determined that criminal contempts are entitled to be heard by jury trial. International Union v. Bagwell, 512 U.S. 821, 826 (1994). The reasoning for that holding is set forth briefly below:
        "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). Unlike most areas of law, where a legislature defines both the sanctionable conduct and the penalty to be imposed, civil contempt proceedings leave the offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious conduct. Contumacy often strikes at the most vulnerable and human qualities of a judge's temperament, Bloom, supra, at 202, and its fusion of legislative, executive, and judicial powers summons forth . . . the prospect of `the most tyrannical licentiousness.' Young v. United States ex rel. Vuitton, 481 U. S. 787, 822 (1987) (Scalia, J., concurring in judgment), quoting Anderson, 6 Wheat., at 228. Accordingly, in [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."

International Union v. Bagwell, 512 U.S. 821, 826 (1994) (emphasis added).


VI. The Honorable Charles B. Swartwood, III,
Magistrate of the US District Court
for the District of Massachusetts
says John Sweeney is Entitled to a Jury Trial

        At the hearing on March 18, 1999, at which John Sweeney appeared without counsel, The Honorable Charles B. Swartwood, III, Magistrate of the US District Court for the district of Massachusetts, addressing John Sweeney who had appeared without counsel, told John Sweeney he was automatically entitled to a 12-member jury trial (March 18, 1998 hearing transcript, pg. 8, lines :14-18):
        "Number two, with respect to the other document which I said I was going to mark as B, now that you've been indicted, you are entitled to a jury trial, and you're entitled to a jury of 12 persons, so that happens automatically."

Transcript, March 18, 1998 Hearing, page 8, lines 10-14, Exhibit 4. This transcript is appended as an exhibit to the Defendant's Motion to Dismiss for Loss and Destruction of, and Failure to Produce Exculpatory Evidence, and is incorporated by reference herein as if fully set forth.

VII. Federal Rules of Criminal Procedure, Rule 42, says
John Sweeney is Entitled to a Jury Trial

"Rule 42. Criminal Contempt

        "(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

        "(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. The defendant is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment."

Fed.R.Crim.P. 42. (As amended Mar. 9, 1987, eff. Aug. 1, 1987.)
        The Constitution of the United States is an "act of Congress," and it provides in the Sixth Amendment that in all criminal prosecutions, the defendant shall be entitled to a jury trial.

VIII. John Sweeney says John Sweeney
is entitled to a Jury Trial
        John Sweeney asserted his Constitutionally protected right to jury trial the first day he appeared before the Court (March 18, 1998 hearing transcript, pg. 7, lines 2-8).
        However, Constitutional guaranties may be waived by the defendant, e. g., Patton v. United States, 281 U.S. 276 (trial by jury); Johnson v. Zerbst, 304 U.S. 458, 465 (right of counsel); Trono v. United States, 199 U.S. 521, 534 (protection against double jeopardy); United States v. Murdock, 284 U.S. 141, 148 (privilege against self-incrimination); Diaz v. United States, 223 U.S. 442, 450 (right of confrontation); United States v. Gill, 55 F.2d 399 (D.N.M.), holding (indictment by grand jury).
        John Sweeney has never waived his right to jury trial, protected by the Sixth Amendment, and there is subsequently nothing in the record showing John Sweeney has ever waived this right. The Court has defined waiver as "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Courts should "indulge every reasonable presumption against waiver," Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937), and they should "not presume acquiescence in the loss of fundamental rights," Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 307 (1937). In Carnley v. Cochran, 369 U.S. 506 (1962), (regarding waiver of right to counsel) the U.S. Supreme Court held:
        "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not waiver." Id., at 516."
        The Court has ruled similarly with respect to waiver of other rights designed to protect the accused. See, e.g., Miranda v. Arizona, 384 U.S. 436, 475-476 (1966); Boykin v. Alabama, 395 U.S. 238 (1969); Barker v. Wingo, 407 U.S. 514, 530 (1972).

/ / /*********\ \ \

        WHEREFORE, JOHN F. SWEENEY, JR., made defendant herein, respectfully concludes his response to the order of this Honorable Court to brief the issue of John Sweeney's right to a jury trial.