United States District Court
for the District of Massachusetts
UNITED STATES, )
JOHN F. SWEENEY, JR.,)
| - vs -
MEMORANDUM OF LAW IN SUPPORT OF MOTION
TO QUASH THE INDICTMENT AND DISMISS THIS
CAUSE FOR INSUFFICIENCY OR IN THE ALTERNATIVE
NOTICE OF CHALLENGE TO CONSTITUTIONALITY OF 18 USC 401(3)
I. FACTS RELEVANT TO THIS MOTION:
JOHN F. SWEENEY, JR. ("John Sweeney" or "Mr. Sweeney" or "the Defendant") was arrested without a warrant, inside his home in Hamilton, Massachusetts, after US Marshals broke a window. He was indicted on March 18, 1999, and charged with Criminal Contempt in violation of 18 U.S.C. 401(3). The indictment reads as follows:
On or about February 28, 1998, in Hamilton, in the District of Massachusetts, JOHN F. SWEENEY, JR., the defendant herein, did unlawfully, knowingly, and intentionally disobey and resist a lawful order, rule, decree, and command of a Court of the United States of America, to wit: the May 29, 1997 and the February 19, 1998 orders issued by United States District Judge Edward F. Harrington requiring the defendant to vacate the properties known and numbered as 776 Bay Road and 24 Meyer Lane, Hamilton, Massachusetts. All in violation of Title 18, United States Code, Section 401(3)."
Indictment, U.S. v. John S. Sweeney, Jr., U.S.D.C. Mass. #98-10079-REK, Mar. 19, 1999.
PLEASE NOTE: The Exhibits referenced herein are the exhibits filed together this date with an index and denominated as "EXHIBITS IN SUPPORT OF MOTIONS FILED BY THE DEFENDANT ON FEB. 19, 1999 and in support of Motion to Dismiss for Loss and Destruction of and Failure to Produce Exculpatory Evidence," as referenced and incorporated herein to avoid filing the same exhibit several times in support of different motions.
II. PROCEDURAL HISTORY RELEVANT TO THIS MOTION:
1. John Sweeney has moved this Court to quash the indictment in this cause and to dismiss this case with prejudice on the bases that the indictment:
(a) is insufficient in that it fails to charge an offense or set forth the elements of an offense or facts to support it; and
(b) is duplicitous;
(c) cannot state an offense or be sufficient because the statute under which the
Defendant is charged, 18 U.S.C. 401(3) does not state a criminal offense;
(d) Prosecutorial Misconduct in presentment of the case to the grand jury.
III. INSUFFICIENCY AND DEFECTS IN THE INDICTMENT
A. The indictment does not set forth the charges against the Defendant with sufficient specificity that he is able to comprehend the charge or prepare a defense. These defects are in contravention of the Sixth Amendment standard for determining the sufficiency of an indictment and the Due Process Clause which requires that a defendant must possess an understanding of the charges, U.S. v. Allard, 926 F.2d 1237 (1st Cir. 1991). An indictment must fairly describe the crime and the victims. It must describe the offense "with sufficient clarity to show a violation of law, and enable the accused to know the nature and cause of the accusation against him." Id. The indictment is not accompanied by a statement of the facts and circumstances that inform the accused of the specific charge against him." United States v. Hess, 124 U.S. 483, 487 (1888)." Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974); accord, United States v. Serino, 835 F.2d 924, 929 (1st Cir. 1987).
Fed.R.Crim.P. Rule 7(c)(1) requires an indictment to provide "a plain, concise and definite written statement of the essential facts constituting the offense charged.
"Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 U.S. 427 (1932); United States v. Debrow, 346 U.S. 374 (1953). It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as 'those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.' United States v. Carll, 105 U.S. 611, 612 (1882). 'Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.' United States v. Hess, 124 U.S. 483, 487 (1888)."
Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974); accord, United States v. Serino, 835 F.2d 924, 929 (1st Cir. 1987).
A criminal prosecution requires strict construction of the laws in question. United States v. Anzalone, 766 F.2d 676, 680 (1st Cir. 1985).
The indictment on its face is insufficient because, although it names a Judge who is said to have issued two orders on two different dates, it fails to set forth any court or cause number from which the alleged orders were said to have issued, and it fails to set forth the language of either order that John Sweeney purposely "resisted or disobeyed." The indictment does not even give the style of the case, nor the names of the parties, nor any fact from which it may be ascertained how it is that John Sweeney came to be the subject of (some unspecified) orders to vacate property at two different addresses, issued from Judge Edward F. Harrington on the two different dates set out in the indictment.
This is wholly insufficient, as illustrated by the following facts. John Sweeney happened to have two civil cases pending before Judge Harrington in February, 1998, cause numbers #96-11864 and #96-11866, and each of those two cause numbers has two orders (a total of four orders) that were issued on February 19, 1998. See Exhibits 2 and 3, the dockets for both cause number #96-11864 and #96-11866.
As for May 29, 1997, there were also at least two orders issued on May 29 in each of the two cases, again for a total of four orders issued on May 29, 1997, as reflected by the docket entries in both cases for May 29, 1997. See Exhibits 2 and 3, the dockets for both 96-11864 and 96-11866, showing two orders entered by Judge Harrington in each case on May 29, 1997.
So there are a total of eight possible orders that could be at issue, assuming that the cases involved are the two cause numbers, #96-11864 and #96-11866.
It is possible none of these is the orders in question, because, examining the Probable Cause Affidavit filed by Deputy U.S. Marshal Anthony Visalli with the original complaint in this case [Docket Entry #1], he says service of the orders at issue in the original complaint (and subsequently, the indictment) was made on February 23, 1998, by posting "a copy of the second order" (whatever that is, since there are at least 8 orders issued out of Harrington's court on the two dates specified in the indictment and none of those seem to be the ones Visalli is talking about) . Visalli says the order was posted "on the front and rear doors" of the 776 Bay Road house and on the main door to the 24 Meyer Lane House where John Sweeney lived. [Docket Entry 1, Affidavit of US Deputy Marshal Anthony Visalli in support of Complaint, pg. 3, para. 7]. Now, this all occurred on February 23 and it must have occurred in daylight hours because the affidavit next says that "later in the day, Deputy U.S. Marshals observed that the posted order had been removed from the main door to John Sweeney's residence." Id.
There is no return of service for any of the four orders issued on February 19, 1998 in civil cause number #96-11864 and #96-11866. [See Exhibit 2 Docket of Cause number #96-11864, entries under #27, and Exhibit 3, cause number #96-11866, docket entries under #29].
As shown by Exhibits 11, 12, 15, and 17, affidavits of counsel and Rhetta Sweeney, none of the four February 19, 1998 orders was ever served on John Sweeney at any time.
In fact, all four of those orders were sealed and were not unsealed until long after John Sweeney's arrest. [See Exhibit 2 Docket of Cause number #96-11864, entries under #27, and Exhibit 3, cause number #96-11866, docket entries under #29]. Also as shown by these dockets, these four February 19, 1998 orders had issued ex parte, without opportunity for notice or hearing to John Sweeney, so they were sealed, secret orders that were never even served on his counsel. None of these must be the orders in the indictment.
As for the four orders issued on May 29, 1997, there is a return of service for two of these four orders. In case #96-11864, on March 3, 1998, docket entry 41 and the return of service show service to John Sweeney on February 27, 1998. [See Exhibit 2 Docket of Cause number #96-11864, entries under #27 and 41]. In case #96-11866, on March 3, 1998, docket entry 44, also says service was made to John Sweeney on February 27, 1998. [See Exhibit 3, cause number #96-11866, docket entries under #29 and 44].
"Remarks" at the bottom of both of these returns of read "Seizure completed 2/28/98. Property turned over to FDIC 3/1/98 11:00 a.m. to John Gilpatrick, FDIC. Attached to both of these returns is a copy of one of the May 29, 1998 orders.
The return of service for both of these two May 29, 1997 orders asserts that John Sweeney was served at "9:30 p.m. on February 27, 1998." This would be 24 hours prior to his arrest and would have been nighttime and very dark. [See Exhibit 13, Return of Service of May 29, 1997 order in Case #96-11864, and Exhibit 14, Return of Service of May 29, 1997 order in Case #96-11866].
Again, neither of these two orders is the order referenced in the Affidavit of Deputy US Marshal Anthony Visalli, who claims "the second order" (whatever that is) was served "by posting it on the main door" early enough on February 23 that Marshals were still able to observe later in the day that it had been removed.
As shown by Exhibits 11, 12, 15, and 17, affidavits of counsel and Rhetta Sweeney, none of the four May 29, 1997 orders was ever served on John Sweeney at any time.
Having eliminated the eight known possible orders as being the orders John Sweeney is alleged in the indictment to have violated, it then becomes a mystery to determine what order(s) are at issue and a complete impossibility to prepare a defense to the indictment.
As the indictment is framed, the Defendant will be unable to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 U.S. 427 (1932); United States v. Debrow, 346 U.S. 374 (1953).
Because of these defects in the indictment, it fails to afford procedural due process, U.S.Const.Amend. V, and fails to adequately inform the Defendant of the charges against him. U.S. Const.Amend. VI; and see United States v. Sheehy, 541 F.2d 123, 130 (1st Cir. 1976). On this basis, the Court has never acquired subject matter jurisdiction of this cause.
B. The indictment is duplicitous. Duplicity is the joining in a single count of two or more distinct and separate offenses. Bins v. United States, 331 F.2d 390 (5 Cir.), Cert. denied, 379 U.S. 880, 85 S. Ct. 149, 13 L. Ed. 2d 87 (1964). The indictment plainly alleges that there are two separate orders issued on two separate dates, and that John Sweeney is alleged to have violated them. This is clearly duplicitous.
Additionally, the indictment also claims John Sweeney did disobey or resist "a lawful order, rule, decree, and command . . ." Each of these words, "order, rule, decree, and command" has a separate meaning, as those meanings are set forth in Black's Law Dictionary, Fifth edition. The use of the word "and" then means that the government is stating that John Sweeney disobeyed and resisted at least one of each of those, an order, a rule, a decree and a command.
"Order. A mandate; precept; command or direction authoritatively given; rule or regulation. Brady v. Interstate Commerce Commission, D.C.W.Va., 43 F.2d 847, 850. Direction of a court or judge made or entered in writing, and not included in a judgment. . . "
"Rule. n. An established standard, guide, or regulation. A principle or regulation set up by authority, prescribing or directing action or forbearance; as, the rules of a legislative body, of a company, court, public office, of the law, of ethics. Precept attaching a definite detailed legal consequence to a definite detailed state of facts.
"Rule. v. To command or require by a rule of court; as, to rule the sheriff to return the writ, to rule the defendant to plead, to rule against an objection to evidence. To settle or decide a point of law arising upon a trial, and when it is said of a judge presiding at such a trial that he 'ruled' so and so, it is meant that he laid down, settled, or decided such and such to be the law."
" - An order made by a court, at the instance of one of the parties to a suit, commanding a ministerial officer, or the opposite party, to do some act, or to show cause why some act should not be done. It is usually upon some interlocutory matter. See also Decree; Order."
"Decree. The judgment of a court of equity or chancery, answering for most purposes to the judgment of a court of law. A decree in equity is a sentence or order of the court, pronounced on hearing and understanding a points in issue, and determining the rights of all the parties to the suit, according to equity and good conscience. It is a declaration of the court announcing the legal consequences of the facts found. With the procedural merger of law and equity in the federal and most state courts under the Rules of Civil Procedure, the term "judgment" has generally replaced "decree." See Fed.R.Civil P. 54(a). See also Decision; Judgment; Order."
"Command. An order, imperative direction, or behest. To direct, with authority. Power to dominate and control."
If the United States intended to assert that John Sweeney had disobeyed each of these directives, then clearly, the indictment is duplicitous. Even if the government did not intend to charge John Sweeney with one each of this assortment of nouns, it has nonetheless made exactly that allegation in the manner in which the indictment has been written. Either way, it fails to say which one (or all) of these directives that John Sweeney is alleged to have disobeyed, so it is not specific, either. See, e.g., Hagner v. United States, 285 U.S. 427 (1932); United States v. Debrow, 346 U.S. 374 (1953); United States v. Carll, 105 U.S. 611, 612 (1882). United States v. Hess, 124 U.S. 483, 487 (1888) for the general requirements that an indictment specifically set forth the offense and support it with facts.
In fact, if the Marshals in fact were given anything to serve, it very likely should have been a writ:
"Writ. An order issued from a court, requiring the performance of a specified act, or giving authority to have it done. A precept in writing, issuing from a court of justice, addressed to a sheriff or other officer of the law, or directly to the person whose action the court desires to command, either as the commencement of a suit or other proceeding or as incidental to its progress, and requiring the performance of a specified act, or giving authority and commission to have it done. See also Order; Prerogative writs; Process."
C. The indictment also fails to set forth all the elements necessary to constitute the offense intended to be punished. United States v. Carll, 105 U.S. 611, 612 (1882). In fact, even if the indictment cannot ever be sufficient or state a charge against the Defendant because the Defendant is not charged under any criminal statute.
The statute and subpart under which John Sweeney is charged, 18 U.S.C. 401(3), in its entirety reads:
"TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 21 - CONTEMPTS
Sec. 401. Power of court
"A court of the United States shall have power to punish by fine or imprisonment, at its
discretion, such contempt of its authority, and none other, as -
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or
18 U.S.C. 401 (emphasis on the subpart with which John Sweeney is charged).
The statute itself is, at best, a "definition" or "authority" statement of Congress of the power of federal courts to punish contempts of their own authority ("and no other" Id.). ). In other words, the federal courts could not punish, say, contempts of Congress.
It says the Courts "shall have power" to punish offenses. It does not say "whoever knowingly, willfully or intentionally (does something that constitutes a contempt, which obviously is a definition that needs to be provided.) Basically, the Statute does nothing more, nor less, than state the powers of the Court, which, as noted in the history, below, was in fact the original purpose of the statute as it existed in Title 28 before it was moved to Title 18 in the 1940's.
The history of this statute shows that it was formerly part of the authorities of the District Courts set out in 28 U.S.C. § 385, 1940 ed. (Mar. 3, 1911, ch. 231, Sec. 268, 36 Stat. 1163). Title 28 sets forth the powers and authorities of the federal courts. Section 385 conferred two powers. The first part authorized courts of the United States to impose and administer oaths and remained in Title 28, U.S.C., 1940 ed., Judicial Code and Judiciary. The second part became 18 U.S.C. § 401, which is one of three sections that comprise the chapter on contempt. Examining the three chapters, it is clear that section 401 does nothing more than set forth the powers of the Courts and is essentially a definition section, not a criminal penalty section.
On the cover sheet of the docket in the Clerk's office and computer records, there is an item that states "Offense Level (opening): 4. Yet, there is no offense level, degree of offense, nor penalty specified in the statute itself, as shown below. There also is no state of mind requirement.
Somewhat illustrating the point, the indictment is crafted to impute a scienter requirement, asserting that John Sweeney "knowingly, willfully and intentionally" disobeyed or resisted, but that is not mentioned anywhere in 18 U.S.C. § 401(3) itself.
In fact, it is clear that the actual procedure to be followed is not even found in Title 18 at all.
Notes to 18 U.S.C. § 401 state:
"FEDERAL RULES OF CRIMINAL PROCEDURE: Prosecution of criminal contempt by summary disposition or notice and hearing, see rule 42, Appendix to this title. Statutory provisions defining criminal contempts, see Notes of Advisory Committee on Rules, rule 42."
Fed.R.Crim.P. 42 reads:
"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.)
This removes all of the proceedings against a defendant from the executive branch and puts the onus squarely on the Court to determine its own offenses, hail the wrongdoer before it, and mete punishment, as required (within the constraints set forth in International Union v. Bagwell, 512 U.S. 821 (1994), however, which mandates a jury trial for criminal contempt alleged to have been committed outside the presence of the court).
Thus, as shown above, there is no procedure, other than an "order to show cause" or an "order of arrest," issued by the allegedly offended Court, that could have legally brought the Defendant into the Court at all. None of these procedures have been followed in this case.
The Defendant was arrested, without a warrant, for "Criminal Contempt" by US Marshals, who forcibly broke into his home, allegedly to serve an order directing all persons to leave the property. John Sweeney was never served with the order to vacate and when he was seized by the Marshals inside his own home, he was offered no opportunity to leave and immediately put in handcuffs and carted off. These circumstances are the continuing effect of a long series of lawless conduct committed by government officials over the course of several years, as more specifically set forth in the Defendant's Motion for Return of Property and to Suppress Evidence, with its accompanying affidavit and brief in support, incorporated by reference herein as if fully set forth.
D. Prosecutorial Misconduct: Generally, "an indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363, 100 L. Ed. 397, 76 S. Ct. 406 (1956). Under certain circumstances, however, it is appropriate to inquire into the proceedings surrounding a grand jury's decision to indict. Under its supervisory powers, a Court may dismiss an indictment if there has been prosecutorial misconduct that actually biases the grand jury in performing its fact-finding function. See, e.g., United States v. Basurto, 497 F.2d 781 (9th Cir. 1974). See generally, Arenella, Reforming the Federal Grand Jury and the State preliminary Hearing to Prevent Conviction Without Adjudication, 78 Mich. L. Rev. 463, 539-58 (1980).
The U.S. Supreme Court has also recognized that prosecutorial misconduct may "so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due process violation, the prosecutorial misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." United States v. Bagley, 473 U.S. 667, 676 (1985) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)).
In this case, the U.S. Attorney for Massachusetts interjected himself into the two underlying civil cases, absent any standing to do so, and in February, 1998, filed several motions on behalf of the U.S. Marshals Service, who also lacked standing in the underlying civil case. [See Exhibit 2, Docket in USDC Mass. Civil Docket #96-11864-EFH, FDIC v. Sweeney, and Exhibit 3, Docket in USDC Mass. Civil Docket #96-11866-EFH, FDIC v. Sweeney, entries for February 19, 1998.]
The Court had no jurisdiction to act on the Motions filed by the U.S. Attorney as "attorney" for the U.S. Marshals. Article III of the Constitution limits federal courts to "deciding cases or controversies arising between opposing parties." Muskrat v. United States, 219 U. S. 346, 362 (1911); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
To have standing, a party must show that they have
"[S]uffered an "injury in fact" -- an invasion of a legally-protected interest which is (a) concrete and particularized, see Allen v. Wright, 468 U.S. 737, 756 (1984); Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972); and (b) "actual or imminent, not 'conjectural' or 'hypothetical,'" Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be "fairly . . . traceable to the challenged action of the defendant, and not . . . the result the independent action of some third party not before the court." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
"The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth, supra, at 508.. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting)."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130, 119 L. Ed. 2d 351, 60 U.S.L.W. 4495 (1992).
One of the Motions filed by the U.S. Attorney, which was granted by Judge Harrington on February 19, essentially duplicated the order of May 29, 1997, ordering the Sweeneys to leave their home, so it is, in effect, an admission that the May 29, 1997 order was invalid. The February 19, 1998 order obtained by the U.S. Attorney, however, is even worse.
Obviously the US Attorney's office is well aware that even a temporary restraining order requires notice to the party to be restrained, in this case, the utility companies and John and Rhetta Sweeney (and other persons on the property), all of whom were to be affected by these orders and none of whom were given any notice of the hearing or application for the restraining order. John Sweeney was given no notice or opportunity for hearing when the U.S. Attorney applied for an ex parte, sealed order to order him off his property.
"Due process requires that a party be given notice "reasonably calculated, under all of the circumstances, to apprise that party of the pendancy of the action and afford her an opportunity to present her objections." Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652). However, "[t]his right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Mullane, 339 U.S. at 314, 70 S.Ct. at 657. Furthermore, the "notice must be of such a nature as reasonably [sic] to convey the required information . . . and it must afford a reasonable time for those interested to make their appearance." Id.
There is also no authority in law to "seal" anything whatsoever in a civil case, again, absent hearing and notice to parties affected.
Holding secret hearings with no notice was plainly unlawful and violates the limits of the governments authority as set forth in the Constitution and violated John Sweeney's rights protected by the Fifth and Sixth Amendments to due process, to hearing and notice, to confront witnesses and to present evidnence.
There can be no question that this was not mere negligence or innocent error, because the U.S. Attorney's office well knew what it was doing.
The fact is, the U.S. Attorney's actions belie a deliberate effort to subvert the Fourth Amendment's constraints and a total disregard for his oath and duties of office.
"No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."
Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891).
"I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations."
Meachum v. Fano, 427 U.S. 215, 230 (1976) (STEVENS, J., dissenting); Hewitt v. Helms, 459 U.S. 460 , 484 (1983).
The AUSA was required by Rule 41 and the Fourth Amendment to the Constitution to get a warrant to arrest John Sweeney, and to get a warrant to search John Sweeney's property, see, e.g., Payton v. New York, 445 U.S. 573 (1980); 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).
"At the core of the Fourth Amendment, whether in the context of a search or an arrest, is the fundamental concept that any governmental intrusion into an individual's home or expectation of privacy must be strictly circumscribed (see, e. g., Boyd v. United States, 116 US 616, 630; Camara v. Municipal Ct., 387 US 523, 528). To achieve that end, the framers of the amendment interposed the warrant requirement between the public and the police, reflecting their conviction that the decision to enter a dwelling should not rest with the officer in the field, but rather with a detached and disinterested Magistrate (McDonald v. United States, 335 US 451, 455-456; Johnson v. United States, 333 US 10, 13-14). Inasmuch as the purpose of the Fourth Amendment is to guard against arbitrary governmental invasions of the home, the necessity of prior judicial approval should control any contemplated entry, regardless of the purpose for which that entry is sought. By definition, arrest entries must be included within the scope of the amendment, for while such entries are for persons, not things, they are, nonetheless, violations of privacy, the chief evil that the Fourth Amendment was designed to deter (Silverman v. United States, 365 US 505, 511)." Id., at 320-321, 380 N. E. 2d, at 235-236 (Cooke, J., dissenting)."
Payton v. New York, 445 U.S. 573 (1980).
The U.S. Attorney also knew that the underlying May 29, 1997 order was illegal because under the law, the Sweeneys and any Massachusetts resident, were entitled to a jury trial on the issue of eviction, which they never received, which the U.S. Attorney knew because the U.S. Marshals office and the U.S. Attorneys office had been sent a letter concerning this by attorney Linda Thompson. Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). See Exhibit 18, copy of Massachusetts law requiring jury trial.
"As a starting point, it is to be recognized that Massachusetts has long accorded tenants both a constitutional and a statutory right to a jury trial in eviction cases. Davis v. Alden, 2 Gray 309, 312 (1854). It is familiar law that the right of trial by jury secured by art. 15 of the Declaration of Rights is sacred and must be sedulously guarded against every encroachment, yet it may be regulated as to the mode in which the right shall be exercised so long as such regulation does not impair the substance of the right." H. K. Webster Co. v. Mann, 269 Mass. 381, 385 (1929). Fratantonio v. Atlantic Refining Co. 297 Mass. 21, 24 (1937)."
Kargman v. Marjorie E., 359 N.E.2d 971, 5 Mass. App. Ct. 101 (1977); and see Pernell v. Southall Realty, 416 U.S. 363 (1974) ["The United States Supreme Court has held that the Seventh Amendment to the Federal Constitution guarantees the right to a trial by jury in an action brought in the District of Columbia for the recovery of possession of premises." Id.]
The U.S. Attorneys office and U.S. Marshal, Nancy McGillivray, had been provided proof that the underlying orders were unlawful and proof that each of them had a legal duty to determine that any order they sought to enforce was legal. Attorney Linda Thompson had sent letters reciting the law, as above, to each of them and reciting the facts concerning the unlawful conduct of Judge Harrington, including the facts that:
Edward F. Harrington, at all times knew or should have known that he had multiple bases upon which his disqualification was and remains mandatory by law. 28 U.S.C. 455. In the underlying case, U.S. District Court #91-10098WD, which forms the basis for the continuing orders in the underlying cases of USDC Mass. #96-11864EFH and #96-11866EFH, which were heard before Judge Edward F. Harrington, the following bases for mandatory disqualification existed and now exist, and all of which Judge Harrington knew at all times and all of which precluded Judge E. F. Harrington from exercising authority at the inception of the underlying case, and at all times subsequently:
John Hanify, the lawyer for the Defendant, ComFed Bank, in the underlying case, and then for the Resolution Trust Company, brought this case to the Federal Court through procedurally illegal mechanisms, by literally taking the physical state court file, after a jury verdict and judgment had been entered, and his own client had an appeal pending in the state appellate court, and waltzing the physical file right out of the State Court (destroying the record of a judgment by Judge Izzo) and presenting the case to a federal judge as if it were properly removed. The case was transferred to Judge Harrington, John Hanify's former associate and friend, and Judge Harrington accepted a provably perjured affidavit, that was otherwise wholly inadmissible because it contains hearsay attributed to multiple employees of John Hanify (who could have, but did not, provide testimony or affidavits). The unbelievable circumstances surrounding the removal have never been reviewed by any other court, owing to the fact that the Sweeneys were pro se at the time this occurred. Even a seasoned attorney would have had serious difficulty keeping up with the incredibly lawless conduct that worked the so-called "removal" of a case that had already been to trial and judgment, awarding the Sweeney's $4 million, over to a federal court to be summarily "dismissed." [Without getting into more detail here about the underlying cases, to illustrate just one reason why the order from Judge Harrington dismissing the Sweeney's $4 million judgment was bogus is facially apparent in the Full Faith and Credit Act, 28 U.S.C. §1738, "mandate[s] that the "judicial proceedings' of any State "shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.' " Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 373, 116 S.Ct. 873, 877, 134 L.Ed.2d 6 (1996) (quoting 28 U.S.C. § 1738). Accordingly, "[f]ederal courts may not employ their own rules ... in determining the effect of the state judgment, but must accept the rules chosen by the State from which the judgment is taken." 516 U.S. at 373, 116 S.Ct. at 877 (internal quotation omitted).]
Federal Judge Edward F. Harrington formerly worked with John Hanify in the U.S. Attorney's office in Boston and continued to work in the U.S. Attorney's office, when Hanify became involved in this case, and then became the judge in the case, with Hanify appearing before him representing the RTC.
John Hanify, the lawyer opposing the Sweeneys in the underlying civil case, was a material witness at the critical hearing on the issue upon which the Court's sole basis for jurisdiction was determined, which was the illegal removal of the underlying State Court cause to Federal Court, by John Hanify. Judge Harrington had a clear and mandatory disqualification on this basis that was not waiverable. 28 U.S.C. 455.
Demonstrating the clear bias resulting from Judge Harrington's failure to disqualify, even though an evidentiary hearing was held on the issue of John Hanify's removal of the Middlesex Court file, Edward Harrington accepted a "group affidavit" from Hanify that was wholly deficient under Fed.R.Civ.P. 56 on its face, in lieu of testimony by John Hanify, who was present for hearing and was not allowed to be subjected to cross-examination.
Additionally, John Hanify is the original lawyer for ComFed Savings Bank (who the FDIC later claimed to succeed), who then represented the government's Resolution Trust Corp. (RTC), the agency that took over the failed bank and was supposed to investigate the fraud of the bank's officers and lawyers, a clear conflict of interest of interest for Hanify, the bank's lawyer, who himself was subject to investigation.. Disciplinary Rule 5-102(A), 359 Mass. 796 (1972), provides that an attorney who learns that he 'ought to be called as a witness on behalf of his client . . . shall withdraw from the conduct of the trial . . . .' One of the reasons for this rule is that if a lawyer appears both as an advocate and witness, 'he becomes more easily impeachable for interest and thus may be a less effective witness." Borman v. Borman, 378 Mass. 775, 786, 393 N.E.2d 847, 855 (1979) (relied upon in Siguelan v. Allstate, unpublished First Circuit Opinion, March 10, 1995.)
Judge Harrington knew this conflict clearly existed, that Hanify's conduct and self-serving testimony and perjured affidavit were in fact the linchpin of the "lawfulness" of the removal action, and the sole basis upon which the Court's purported jurisdiction derived, but allowed John Hanify to continue in this representation.
Edward Hanify is John Hanify's father. Edward Hanify's lawfirm is Ropes and Gray. Ropes and Gray also appeared in the Sweeney cases before Judge Harrington, after Hanify took it to Judge Harrington.
Judge Harrington was nominated to his current position by Ted Kennedy (who is represented by Edward Hanify's lawfirm, Ropes and Gray).
Edward Hanify (John Hanify's father), a partner in Ropes and Gray, testified before Congress on behalf of Judge Harrington's nomination to rescue the nomination after the Massachusetts. Bar Association testified against Harrington's nomination.
Ed Hanify's lawfirm, Ropes and Gray, represented Ted Kennedy in the Chappaquidick litigation. Kennedy owes his career to Ropes and Gray, and Judge Harrington owes his Federal Judgeship to both Kennedy and to Ropes and Gray.
Every one of the above is reasons Harrington was disqualified from acting in the two underlying civil cases and why every "order" issued by him was without authority..
"28 U.S.C. § 455, "Disqualification of justice, judge, or magistrate," provides in relevant parts:
"(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
"(b) He shall also disqualify himself in the following circumstances:
"(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
"(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
"(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
"(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
"(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
"(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
"(ii) Is acting as a lawyer in the proceeding;
"(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
"(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
28 U.S.C. § 455 (emphasis added)."
However, finally, Judge Ed Harrington's son, WILLIAM T. HARRINGTON, two years ago, went to work for John Hanify's lawfirm while the Sweeneys' case was before Judge Harrington. (John Hanify is the lawyer who was opposing the Sweeneys in State Court, illegal removed the case and accomplished a false substitution of parties).
Judge Harrington's son continued to work for Hanify for two years, and was still working there on the day Judge Harrington issued the Feb. 19, 1998 "ex parte" order on application of non-parties.
"18 U.S.C. § 201, "Bribery of public officials and witnesses," provides in relevant part:
"(b) Whoever -
"(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent -
"(A) to influence any official act; or
[. . .]
"(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
"(A) being influenced in the performance of any official act;
[. . .]
"shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States."
18 U.S.C. § 201.
Judge Harrington has heard other cases presented by Hanify during this same period and it is clear that Harrington's son was given a job, right out of law school, by Hanify, while these cases were pending, and that Hanify and Harrington know one another, both from past work associations, as well as presently. There is no basis upon which Judge Harrington can deny that his duty to disqualify was mandatory, nor that the employment of his son by Hanify gives the clear appearance that felonious conduct, to wit, bribery, has in fact occurred.
It was far easier, then, in this framework, for the U.S. Attorney to present secret petitions to a rubber-stamp Judge, Judge Harrington, who could be relied upon to do whatever was necessary to try to silence the Swine's, who by this point had already obtained Congressional hearings into some of the underlying criminal fraud and conduct rampant in this case.
The unlawful proceedings by which the U.S. Attorney claimed to have entered the case, absent any standing whatsoever, and to have obtained orders on February 19, 1998, ex parte, without hearing or notice to anyone affected, and to have then moved to seal the motions and orders, again without hearing or notice, all before Judge Edward F. Harrington, and the fact that Judge Harrington not only entertained these facially defective motions, he granted them, demonstrates further nothing more than one more transgression in a long series by Judge Harrington in this case. The U.S. Attorney's office well knew, and very clearly relied upon, Judge Harrington's bias and willingness to wholly ignore the Constitution and laws of this country, and his oath of office. (Judge Harrington was also formerly the U.S. Attorney for Massachusetts and an Assistant U.S. Attorney).
As set forth under part A, above, the discrepancies between the returns of service filed by the U.S. Marshals [Exhibit 2, Entry 41, and Exhibit 3, Entry 44; and the returns themselves shown at Exhibits 13 and 14.] and the Affidavit of Probable by US Deputy Marshal Anthony Visalli [Docket Entry #1] originally filed with the complaint in this cause, show that both the returns and the paragraphs of Deputy U.S. Marshal Visalli's affidavit concerning service cannot both be true.
In fact, Deputy U.S. Marshal Anthony Visalli's affidavit says that notice was effected by posting a copy of the second order (whatever that is) on the front and back doors of the house at 776 Bay Road and on the Front Door at Meyer Lane [Affidavit of Deputy US Marshal Anthony Visalli, Entry #1, para. 7].
This is not lawful notice, which the US Attorney knows. Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652);. In Mennonite Board of Missions v. Adams, 462 US 791, 799 (1983), the Supreme Court found that use of a less reliable form of notice is not reasonable where "an inexpensive and efficient mechanism such as mail service is available." Id.
As shown by the affidavits of attorneys John Andrews, Steve Gordon, and Linda Thompson at Exhibits 11, 12, and 17, Steve Gordon, in writing, requested to be served with copies of the May 29, 1998 orders, and filed a motion to obtain a copy of the February 19, 1998 orders, which was denied. Linda Thompson repeatedly requested copies of the orders. Both John Andrews and Steve Gordon's offices are in Boston, where they could easily have been served either in person or by mail, effecting service on the Sweeneys pursuant to Fed.R.Civ.P. 4. The Sweeneys were continuously at their home at 24 Meyer Lane and could have been served by mail at anytime.
Nancy McGillivray, the U.S. Marshal, and Deputy U.S. Marshal Timothy Bane were present at the mediation hearing on August 6, 1998 and informed that no one, including the attorneys and the Sweeneys, had ever been served with the May 29, 1997 order.
Not once, from May, 1997 to February 28, 1998, did the U.S. Marshals ever serve John Sweeney or any of his attorneys.
It is also very clear from the circumstances that the US Marshals office and the US Attorneys office had ample time to seek a warrant of arrest and a warrant to search and a warrant to seize the real and person properties of the Sweeneys, but they never did.
Given these circumstances, and the fact that the U.S. Attorney very likely introduced either the Affidavit or testimony of US Deputy Marshal Anthony Visalli to the Grand Jury (but not the returns of service from the US Marshals office, Exhibits 13 and 14) and Deputy Visalli's testimony can be presumed to have been just as contradictory and wrong before the Grand Jury as it is in his affidavit, the U.S. Attorney has knowingly suborned perjury before the Grand Jury.
The U.S. Attorney also knew that John Sweeney was arrested without a warrant in his own home and the underlying circumstances leading to that arrest which were unlawful, in which the US Attorney played a direct part and can be said to be using the Grand Jury process and these criminal proceedings, for the purpose of after-the-fact justification of his own criminal conduct, to thereby subsume the unlawful underlying proceedings in the tempest and turmoil of a criminal arrest, indictment and prosecution.
The US Attorney also knew or should have known that these proceedings were outside the law and that charging John Sweeney under 18 U.S.C. § 401 (3) stated no offense, and that the US Attorney had failed to follow the procedures of Fed.R.Crim.P. 42.
After initiating these unlawful proceedings, the U.S. Attorneys office stood up in open court At a hearing on April 20, 1998, AUSA Timothy Feely falsely represented in open court that the US Department of Justice never took possession, control or exercised any dominion or control over the household goods on the property. [EXHIBIT 5, Transcript of April 20, 1998 hearing, page 12, lines 10-12]. This was very clearly a wholly false representation.
As shown by a letter of November 9, 1998 1 from AUSA Sheila Sawyer to William Korman (an associate of Defendant's counsel John McBride), Sheila Sawyer represented that the government never "seized" (nor had control of) these household goods.
In fact, the US Marshals Service seized the house at 776 Bay Road and all its contents, plus several vehicles and fourteen acres of land -- everything except the house at 24 Meyer Lane -- on February 27, 1998, without a warrant. The Marshals seized and occupied this property, which includes all the acreage, the house on Bay Road and all possessions therein beginning on February 27, at 9:30 p.m., as set forth in the sworn affidavit of US Marshal AnthonyVisalli in support of the original complaint in this cause (Entry #1). The US Marshal's service maintained continuous control of the aforesaid property until Mr. Sweeney's arrest on February 28, 1998, at approximately 5:15 p.m, Then, the U.S. Marshal's Service also seized the house on Meyer Lane and all its contents.
These facts, too, may be noted from US Marshal Anthony Visalli's sworn affidavit appended to the original complaint in this cause.
In other words, the US Marshal's Service had possession and control of the Bay Road house, its contents, all the grounds, and several cars on the grounds, from February 27, 1998 to March 1, 1998. Marshals physically occupied the Bay Road house and used the telephones, furniture, and bathroom facilities from February 27 to at least February 28. The Marshals then seized the Meyer Lane house on February 28, at the time Mr. Sweeney was arrested (approximately 5:15 p.m.). Since it was too dark to videotape anything at that time, the US Marshals doubtlessly continued to control the property until at least the next day, March 1, 1998, since the videotape was made during daylight hours. This is substantiated by the returns of Service filed in the two underlying civil cases by the U.S. Marshals which read:
"Seizure completed 2/28/98, property turned over to FDIC 3/1/98 11:00 a.m. to John Gilpatrick."
See Exhibits 13 and 14, Returns of Service filed by the US Marshals.
Very plainly (and directly in contradiction of the US Attorneys representation to the Court in this case) the US Marshals exercised dominion and control over all the personal property within the Bay Road house, and the 14 acres of land surrounding the Bay Road house and the Meyer Lane house, continuously from February 27, 1998 at approximately 9:30 p.m. until at least 11:30 a.m. on March 1, 1998, see also Exhibit 7, Suffolk County Storage Non-Commercial Storage - Notice of Claim, dated 7/24/98 which states that the goods were left with the storage company by a Deputy U.S. Marshal on March 1, 1998.]
The US Attorney's office had represented to Defendant's counsel and to the court, e.g., see government's response to the Defendant's Motion to Preserve Exculpatory Evidence (Docket Entries 23 and 24) that no inventory had been made and this was based on the government's knowingly false assertion that the US Marshals never had dominion and control over the property or contents (household goods). Not only was this "lack of dominion and control" a knowingly false statement, the only way the US Marshals could not have known that probative, relevant, likely exculpatory and provably exculpatory material, mountains of it, existed, was to selectively and purposefully pretend not to notice it while they were working, searching, and standing in the middle of it..
In September, 1998, unbeknownst to the Defendant, AUSA Sheila Sawyer advised the storage company's attorney by letter that she understood the storage company intended to dispose of all the property immediately and that it was "of no relevance whatsoever to the pending criminal contempt case." The US attorney's office did not merely "fail to produce" or "fail to look for" evidence that was in the government's control from February 27, 1998 to March 1, 1998, when it had a clear, known legal duty to preserve this evidence, but it then took the position of "it's out of our hands" for months when it turned the property over to a government-contracted storage company, and then actively promoted the destruction of these goods! [See the September 8, 1998 letter from AUSA Sheila Sawyer to Richard Connors, Exh. 9, appended as an exhibit to the Defendant's Motion to Dismiss for Loss and Destruction of, and Failure to Produce Exculpatory Evidence, and incorporated by reference herein as if fully set forth.]
AUSA Sheila Sawyer, in a subsequent letter on Nov. 9, 1998 letter [Exh. 10], represented that US Marshal Anthony Visalli had informed her that a videotape inventory that had been made by "an independent contractor" would be forthcoming. Nearly 3 months later, it was produced.
Until then, the government had represented repeatedly that there was no inventory; [see, e.g., government's response to Defendant's Motion to Preserve Exculpatory Evidence, entry #24]. The government also failed to produce any inventory in response to standard discovery.
As can be seen from the Affidavit of James Granitsas [Exh. 6], September 15, 1998, the owner of the storage company to whom the US Marshals released Mr. Sweeney's household goods and all the evidence, Granitsas himself asserts that the US Marshals and FDIC made the videotape. (As also shown by the September 8, 1998 letter mentioned above from AUSA Sawyer to Granitsas' attorney, telling them, in writing, that the government says the property has no relevance whatsoever to this case, the government and Granitsas were in close contact with one another).
Granitsas' affidavit is appended as Exhibit 6 to the Defendant's Motion to Dismiss for Loss and Destruction of, and Failure to Produce Exculpatory Evidence, and incorporated by reference herein as if fully set forth.
All of the exculpatory and possibly exculpatory evidence in this case was sold for $500.00 at auction and John Sweeney never got to see it. The U.S. Attorneys office directly and falsely represented it knew nothing of the evidence (all the household goods and earthly belongings of the Sweeney family, two three-story houses worth), and then wrote to the persons holding those goods and said the goods had "no relevance," directly encouraging the loss and destruction of these goods, when the AUSA clearly knew that John Sweeney's attorney had been mislead by the misrepresentations of the AUSA and that John Sweeney and his attorney were trying desperately to get in to see those goods and had asserted that they contained exculpatory evidence.
The loss of the evidence, though, was minor compared to the vindictive and outrageous loss of all the Sweeney's earthly belongings, valued in excess of $2 million (and as shown on the government's videotape, which the government falsely originally claimed didn't exist, and then claimed it existed but the government didn't make it).
There could not be a clearer, more continuing course of vindictive, lawless conduct by the U.S. Attorneys office than this case, and therefore, the Court should inquire into just exactly what was presented to get an indictment in this case which was, in fact, not subject to indictment..
WHEREFORE JOHN F. SWEENEY, JR. respectfully moves this Honorable Court to quash the indictment in this cause and to dismiss this case with prejudice on any one or more of the bases that the indictment:
(a) is insufficient in that it fails to charge an offense or set forth the elements of an offense or facts to support it; and
(b) is duplicitous;
(c) cannot state an offense or be sufficient because the statute under which the Defendant is charged, 18 U.S.C. 401(3) does not state a criminal offense;
(d) Prosecutorial Misconduct in presentment of the case to the grand jury.
and for all other relief just or equitable in the premises.