Wake Up America – by Susan Duclos
Well this is pretty creepy. According to a notice sent by Senator Sheldon R. Songstad, Ret. of South Dakota State and published, with a video, which will be shown below, titled “Emergency Fema Region 3 Alert!!!,” the government obviously believes something big is coming.
Region three includes, DC, DE, MD, PA, VA, WV.
The preparations listed include; Nine-week training course for UN Peacekeepers in CONUS to learn Urban Warfare, English, and US weapons systems beginning 4th week of July for 386,000 troops to be completed by October 1st;
$11 million in antibiotics to be delivered to FEMA region III by October 1st ordered by CDC;
FEMA purchase orders for over $14.2 million for MREs and heater meals to be delivered to Region III by October 1st;
FEMA purchase orders for 22 million pouches of emergency water to be delivered to region III by October 1st;
FEMA purchase orders for $13.6 million for MREs and heater meals to be delivered to Austin by October 1st;
2800 MRAPs must be delivered to DHS by October 1st;
The copied email alert, in full, below:
Emergency Fema Region 3 Alert!!!
FEMA Region III: DC, DE, MD, PA, VA, WV
Sent: Tuesday, August 13, 2013 6:43 AM
Subject: National update from Sheldon: Senator Sheldon R. Songstad, Ret. of South Dakota State
A few nights ago Donald Trump was with Greta on Fox News. He told her something BIG was going to happen, most likely starting the first week of October. He could say NOTHING ELSE at this time.
HERE IS WHAT WHAT THE SENATORS NATIONAL PREPAREDNESS RESEARCH TURNED UP…
FEMA purchase orders for over $14.2 million for MREs and heater meals to be delivered to Region III by October 1st.
FEMA purchase orders for 22 million pouches of emergency water to be delivered to region III by October 1st.
FEMA purchase orders for $13.6 million for MREs and heater meals to be delivered to Austin by October 1st.
Nine-week training course for UN Peacekeepers in CONUS to learn Urban Warfare, English, and US weapons systems beginning 4th week of July for 386,000 troops to be completed by October 1st.
$11 million in antibiotics to be delivered to FEMA region III by October 1st ordered by CDC.
World Health Organization held second emergency meeting in its history to discuss MERS Coronavirus. Determined a vaccine MUST be in place by October 1st.
2800 MRAPs must be delivered to DHS by October 1st.
No leave will be allowed for US military from September 28th thru November 5th. NORCOMM yearly training for civil unrest suspended until September 27th. To be performed in northeast coastal areas.
Date for release of QE3 report moved to October 16th.
All DHS agents MUST qualify with sidearm, shotgun and AR 15 by September 28th. No mention of yearly less lethal qualification.
Sporadic testing of GPS and Communications satellites is coordinated for the first time with a testing date of September 29th.
POTUS mandates to FEMA and DHS concerning support for metropolitan communities dealing with the extreme climate change MUST be complete by October 1st. These mandates were issued during the last three weeks.
Over 300 school systems in the US have determined they need three-day kits for each school AND three-day kits for each student to take with them. All deliveries are scheduled for the month of September.
All National Guard units will complete riot control and disaster assistance training during this years annual two week training. All units MUST have their training complete by September 30th.
Daily testing of the Emergency Broadcast System to begin on September 25th and run thru October 2nd.
Eastern-based Coast Guard units to perform massive group training, usually performed in the Gulf, in the Virginia and Delaware areas. This is a 10-day training mission to begin September 26th.
“GOD, PLEASE HELP AMERICA”
Sheldon R. Songstad
Senator Retired: South Dakota State
LETS SEE,…1×1 is 2…,2×2 is 4…,OK theres a shit storm coming ,GOT IT,now what?..lets see,..russian troops,check..,asian troops,check,..NATO troops,check,..OH shit we gave the government all our guns “TO SAVE THE CHILDREN” oh crap, I sure hope we aren’t about to be taken over,what will we do?…HOW ABOUT KISS YOUR STUPID ASS GOOD BY……………………………
5150
HAHAHA,…Quack,Quack,ever have a day when you feel like a duck?if it looks like a duck,and it quacks like a duck,it must be a duck,BUT,BUT our daddy OBAMA said he changed the rules,now only cows go quack,quack,and chickens go mo,mo……and being invaded will be good for jobs,ME THINKS a job in a fema camp might not be a good job,OK ,I ain’t going,now what?what do you mean we have to go?NO FOOD,and the POWERS OFF,I don’t care, I ain’t going,you girlymen,you go ahead, I ain’t going,I’am staying here,and hidding,what do you mean theres a 5,000 dollar reward for me,cause I’am a resister,I ain’t no resister,I’am a good law abiding citizen,I never resisted anything in my life……ask my wife……ahahaha…………(better be ready)….their coming for you,you resister you………….hahaha………….OBAMA just changed you from a citizen to a terrorist,now what you got to say?………….OH shit is that a drone?
Please, for the children, they are FEMA Gulags.
OK, thanks :/
Please take your meds.
Is there a doctor in the house?
I was just asking around about these facts the other day because there are too many things being time framed for there to be a coincidence and here is an article on it. I wonder though if this info is being telegraphed for some reason though; Trump knows and talks about it on TV?. I am concerned however.
“The preparations listed include; Nine-week training course for UN Peacekeepers in CONUS to learn Urban Warfare, English, and US weapons systems beginning 4th week of July for 386,000 troops to be completed by October 1st;”
This is clearly UN/Global Government, completely and utterly unconstitutional and treasonous to the core. Why oh why are Americans, patriots and military personnel letting this happen? I just don’t understand it.
Hey guys/gals…I always have to double/triple check articles such as this. On this one I typed in “Sheldon R. Songstad”…it took me awhile to find out that he even exists, but he does. He was born in 1938 and a senator. IMO, people at his age, same with Paul Craig Roberts, dont lie, or fearmonger for profit or fame, they are too old to care about that stuff…..I usually find older people the most honest. Add that to other factors, and I give this story a “probably true story” …The email was sent to Rev. Michelle Hopkins..Here is another article from her.. http://www.shiftfrequency.com/rev-michelle-hopkins-haarp-ttas-us-west-coast-earthquakes-man-made-right-before-your-eyes-video/
We all know its gonna happen, just a matter of when. They’ve been prepping for a long time. We see more evidence everyday on what course they are planning to take. The writing has been on the wall for sometime. They don’t go through all the trouble to mobilize an army here on home turf for no reason. The camps, false flags, weapons, stripping our rights, immigrants, ammo, meds, coffins, mraps, and on and on and on….. They’ve been rigging the game for sometime. Anyone here on this site, I would assume is educated enough to know the wait doesn’t go on forever.
I’m just ready to get it on so we can defeat this evil cult and take the power back. Im tired of being paranoid under the reign of these heartless two faced bitches.
Here is some audio for when the time comes to apply the war paint. This won’t be for everyone.
http://m.youtube.com/watch?v=APmUWC8S1_M
If FEMA’s involved, it’s ALL bad.
Also, not long ago we read about the powers
that be, looking into securing those MRE’s,
and other long term food. Remember ?
Yes, we all know the game is afoot…..
I agree with James, and most of you also
have the same view.
It’s past time to “Rock -n- Roll”
No. 13- 5668
IN THE
Supreme Court of the United States
Shane Christopher Buczek, Affidavit of Truth
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent,
On Petition for a Writ of Certiorari to the
United States Court of Appeals
For the Second Circuit
PETITION FOR A WRIT OF CERTIORARI
Dated: July 26, 2013 Shane Christopher Buczek – Pro se
PO Box 93
Derby, New York 14047
I, Shane Christopher Buczek states under the penalties of perjury, pursuant title 28, United States Code, Section 1746, as follows:
I am the Petitioner in this writ of Certiorari to the Supreme Court of the United States.
1. On or about July 8, 2013 I talked to Deputy Clerk in the Western District of New York Jean Marie McCarthy regarding now many grand juries were empaneled there from May 4, 2007 to November 5, 2008 and received an answer that there is one that generally stays on for 12 months but can stay for 18 months pursuant to rule 6 (g). If the grand jury panel needs to stay on any longer, it needs an order from Chief Judge to extend.
2. On June 14, 2013, Petitioner went to see the Clerk again and asked her about when the case comes to the clerk, what happens next? She said that they assign a case number to the case and it is stamp filed into pacers immediately.
3. Petitioner then told her that my indictment did not have a case number assigned to it on the day of indictment and that the case a case number did not show up until much later in the paperwork when motions are filed by the government. I indicated to her that this was high irregular, wasn’t it? She only gave me a blank look.
4. Petitioner also told her that there was no criminal complaint filed anywhere and the grand jury concurrence did not appear in the record or in the docket sheet anywhere.
5. The Petitioner explained to the Clerk about the federal rules of criminal procedure, Rule 6 which requires at least 12 jurors concur in the indictment of the Petitioner. The record shows that this had not happened. There was no indication that the record was sealed. I went on to say that the “indictment” issued in this instant case was not signed by the Grand Jury foreperson in violation of rule 6 (c) which states that, “The foreperson…..will sign all indictments.” The local rules for (WDNY) and the Administrative Procedures Guide states in §§ 2 (c) (1), Appendix G that “Charging instruments in criminal cases shall be filed in the traditional manner rather than electronically.” I told her my alleged indictment had both the grand jury foreperson and the US Attorney signature filed electronically [“/s/” foreperson] wherein the indictment should have had the Foreperson’s cursive signature redacted shown and the US Attorney signature in cursive. I asked her if there was a sealed signed foreperson’s signature with his concurrence. She gave me that blank look again.
I6. The Deputy Clerk did not have an answer for that and went on the say that I could call clerk of the records in the Western District of New York Charlene Shumaker about the grand jury concurrence, grand jury transcripts and the issue of the extension.
7. On or about July 11, 2013 at 4:30 pm Petitioner did in fact contact the clerk of records Charlene Shumaker and said that she could not release them because she could get fired.
8. At that time I explain in great detail the facts about the draft indictment that the AUSA can create and upload into the portal of the clerk’s office. I also explained that the foreperson or another juror designated by the foreperson will record the number of jurors concurring in every indictment and will file the record with the clerk, but the record may not be made public unless the court so orders. Then I said while recognizing the Petitioner is not the public, as the Defendant in a draft criminal prosecution, the failure of the indictment to be signed by Grand Jury forepersons opens the door allowing the Petitioner to question the validity of the indictment. What is to stop the AUSA from feigning a True Bill, and electronically signing the foreperson signatures? I explained that there is no record on whether my empaneled grand jury was extended by an order of the Chief Judge of the Circuit. There is no record that my grand jury was still in session at the time of my alleged indictment. This clerk would neither confirm nor deny
that my grand jury was expired or legally extended. She reiterated that she could get fired for telling me.
9. The clerks in the Western District of New York have been completely silent with no answer to the above statements or questions. The only thing I got out of them was that there was only one grand jury in session back in May 4, 2007, and that was allegedly mine. And if not extended, the one that indicted me was not mine. Any other grand jury empanelled at that time was empanelled with a different stating date that the alleged one I had.
10. Petitioner also told the clerk that 28 USC Section 1868 states “that all records and papers compiled and maintained by the jury commission or clerk before the master wheel was emptied shall be preserved in custody of clerk for four years….”
11. Petitioner has asked the clerks to please produce the above information for my disclosure which is a due process right especially after a case has closed disclosure is wholly proper where the ends of justice require it and it is in the interest of justice and the public good. The veil of secrecy can be lifted to the grand jury minutes after a case is closed. Petitioner stated that maintenance of a dual-docketing system was and will always be unconstitutional infringement. The clerks would make no comment of that. The clerk’s office said once again that none of his documents exist here in their office.
12. Petitioner believes that his empanelled grand jury did not exist at the time of his alleged indictment or if it did, it was an expired one leaving the government and court without subject matter jurisdiction in his case.
Dated: July, 26, 2013 _______________________ Shane Christopher Buczek – Pro Se
Derby, New York 14047
716-947-5384
F-ing trolls. Post “comment” is fake bs.
http://www.fbi.gov/buffalo/press-releases/2010/bffo030810.htm
Affidavit of Facts
To the District Court of Western New York, Second Circuit Court of Appeals and the Supreme Court of the United States:
Shane-Christopher :Buczek, being duly sworn, pursuant to title 28 U.S.C. Section 1746 (1), deposes and says:
1. I am the Petitioner herein and submit my affidavit in support of the within violation(s) to the United States Constitution.
2. The Petitioner contends that the 02/14/2013 ORDER, denying his petition for Writ of mandamus was in error with no finding or facts in conclusion in law.
3. Following Affiant’s draft indictment, he was arraigned before Hon. H. Kenneth Schroeder, Jr. on 05/06/2009. Court read charges contained in indictment to petitioner and enter plea of not guilty on this behalf. Petitioner objected to the Court entering plea of not guilty on his behalf. Petitioner was advised of his rights. Government moved for detention. Petitioner objected to government’s motion. Detention hearing was set for 5/7/2009 at 10:30 Am before Hon. Kenneth Schroeder Jr. Petitioner then waived his right to be represented by counsel for purposed of Detention hearing…..
4. On 5/7/2009, Affiant requested adjournment of Detention Hearing. Detention hearing was adjourned to 5/15/2009 at 2:00Pm before Hon. H. Kenneth Schroeder Jr. Petitioner was remanded to the custody of the U.S. Marshals service.
5. Affiant on or about 5/15/2009 stated that he wished to proceed pro se for purposes of Detention hearing. Court released petitioner in all three cases (08-cr-54, 09-cr-121 and 09-cr-141) on $ 10,000.00 signature bond to be Co-Sign by responsible surety, electronic monitoring and home incarceration…petitioner consider either retaining Counsel or requesting assigned Counsel.
6. On 05/28/2009, a Summons was issued in case as to Shane C. Buczek. Docket Call was set for 6/3/2009 10:30 Am before Hon. H. Kenneth Schroeder Jr. alongside an Order setting condition of release. Signed by Hon. Kenneth Schroeder, Jr. on 5/15/2009.
7. On 6/3/2009, Affiant made oral motion to travel to Texas to meet with attorney he may wish to retain. Motion was denied. Affiant was then directed to provide the Court with name of attorney he has retained no later than 6/14/2009. Status Conference was set for 6/5/2009 at 3:30 Pm. Affiant was reminded to follow terms and conditions of bail previously imposed.
8. 06/05/2009 at Status Conference Affiant was advised that he has a meeting scheduled with Attorney David Jay on 6/6/2009. Appearance of Counsel Hearing was set for 6/15/2009 at 2:30 Pm before Hon. H. Kenneth Schroeder Jr. Court found that petitioner once again did not violate the terms of conditions of bail alleged in the most recent violations. But petitioner was order to remove himself from all social networking sites by 5:00PM. On 6/8/2009.
9. Affiant on 6/15/2009, Confirmed that he will be preceding pro se. Affiant also requested permission to leave his residence in order to work on his case at UB Law University at the Law School in Amherst New York. Court directed petitioner to make application to the U.S. Probation Office for the sole purpose of going to the UB Law School Library, the Federal Courthouse Library or the Supreme Court Library.
10. In Initial Appearance was held 8/14/2009 re Petition for another Revocation of supervised release as to Affiant. Petitioner advised of charges in the violation petition and was informed of rights. Court enters denial as to charges but Government moved to detain once again. Matter was scheduled for 10:00 Am on Monday August 17, 2009 before Magistrate Judge Schroeder. Petitioner was remanded pending hearing.
11. Bail Violation Status Hearing as to Affiant was held on 8/17/2009. Court acknowledges attorney Brian Comerford from the public defender’s office is present. Court conditionally assigns Mr. Comerford to Affiant. The government moves again to detain petitioner bail review Hearing was set for 8/20/2009 2:00 Pm before the Hon.H. Kenneth Schroeder Jr. Petitioner was continued detained and remanded pending hearing.
12. Bail review hearing as to Affiant was held on 8/20/2009. Petitioner completed financial affidavit, and was sworn, examined and determined eligible for Counsel. AFPD accepts the Appointment and is formally appointed. Government moved for detention on the basis of another invalid violation. After argument Court denied the government’s request to detain. Petitioner was to be released on EMS with conditions modified. Government then motioned for a stay in order to appeal the decision to the District Court. Court then denied the government request.
13. After a the unlawfully conviction 11/5/2010, the Affiant was sentence to custody of BOP for a term of 27 months on Count 1 to run concurrent to count 1 of 09-cr-141 and Count 3 of 08-cr-05 and 6 months on count 2 to run consecutive to count 1 to count 1 of 09-cr-141-s. Upon release from imprisonment the petitioner was placed on supervised release for a term of 5 years with no mandates defined in section 3561 (b) from 18 USC on count 1 and 3 years on count 2 to run concurrent to each another and run concurrent to the term of a unlawfully supervised release imposed in 08-cr-54 and 09-cr-141.
14. Affiant asserts he is entitled to relief because his draft indictment lacks a criminal complaint with a sworn affidavit. Affiant further asserts that his docket sheet shows no valid criminal complaint or probable cause affidavit.
15. The complaint, in violation of rule 4 of the federal rules of criminal procedure, provides no sufficient basis on which could be made a finding of probable cause that the offense charged was committed and that affiant committed it, because there is no such document in case No: 1:09-cr-00121- WMS-HKS-1.
16. To contest in court the validity of the arrest on the grounds, first, that complaint on which the warrant was issued was inadequate i.e. did the complaining officer rely exclusively upon hearsay information rather than personal knowledge in executing the complaint? Being that a complaint doesn’t exist at this point, it would be impossible, for affiant to do such. And, second, without this sworn document, how could Affiant verify whether or not the complaint was defective i.e., it recited no more than the elements of the crime charged?
17. Affiant, representing himself, did not at any point surrender his right to contest in court the validity of the criminal complaint, warrant, and draft indictment on the grounds here asserted. A claim of this nature may involve legal issues of subtlety and complexity which it would be unfair to require the petitioner to present so soon after arrest, and in many instances, as here, before his final selection of counsel.
18. Law enforcement officers and other persons in New York, none of whom either appeared before the Magistrate or submitted affidavits in this case are dangerous. Given, a “Non-existing” Criminal Complaint cannot provide a sufficient basis upon which a finding of probable cause could be made.
19. It is the Affiant understands that, the purpose of the complaint is to enable the appropriate magistrate, to determine whether the “probable cause” required to support a warrant exists. When the complaint in this case is judge with this consideration in mind, it is clear that it does not pass muster because it does not exist. Nor is it possible for it to provide any basis for the Magistrate’s determination under Rule 4 that probable cause existed. Indeed, if this conviction were up help, the substantive requirements would be completely read out of Rule 4, and the complaint would be of only formal significance, entitled to perfunctory approval by the Magistrate. This would not comport with the protective purposes which a complaint is designed to achieve.
20. It does not avail the government to try to argue that because a warrant of arrest may be issued as of course upon an indictment, this “Non-existent” complaint was adequate since its nonexistent allegations can not suffice for an indictment under Federal Rules of Criminal Procedure 7 (c). A warrant of arrest can be based upon an indictment because the grand jury’s determination that probable cause existed for the draft indictment also establishes that element for the purpose of issuing a warrant for the apprehension of the person so charged. Here, in the absence of an sworn criminal complaint and signed (valid) indictment, the issue of probable cause had to be determined solely by the Magistrate, and an adequate basis for such a finding had to appear on the face of the complaint-which is absent from the record.
21. Affiant contends that he is being punished due to a non-existent criminal complaint that does not meet the “essential facts” requirement of Rule 3 of the Federal Rules of criminal Procedure, among other violations.
The Affiant declares under the pain and penalty of perjury that the foregoing is true and accurate, in accordance with Title 28 U.S.C. Section 1746 (1).
Petitioner, Shane Christopher Buczek respectfully moves this Honorable Court to grant a Writ of Certiorari because the decision of the United States Court of Appeals was in error in denying Petitioner’s Writ of Mandamus “Extraordinary Writ” (Mandamus) directing the District Court for the Western District of New York (Buffalo Division) (Judge William H. Skretny) to dismiss the case of United States of America v. Shane Christopher Buczek, 2nd Circuit Appellate docket #12-5017 and 1:09-cr-OOI21.001 (WDNY), 457 F. App’x 22, 25 (2d Cir. 2012) asserting the District Court was without subject matter jurisdiction to hear, consider or adjudicate the matter and rectifying the manifest injustice that occurred in his case.
On 12//20/2012, a petition for Writ of Mandamus or prohibition filed with the United States
Court of Appeals for the Second Circuit was denied by that Court on 2/14/2013. Appendix,
A. A motion for rehearing of the denial of mandamus or prohibition was denied on 4/4/2013. Appendix B. Request for en Banc hearing denied on May 1, 2013. Appendix C
Statement of the Case:
The instant petition results from Petitioner’s conviction on one count of bank fraud, in violation
of 18 U.S.C. § 1344 without FDIC certificate entered into evidence during trial, an element of the offence charged, (Count One of docket: 1:09…CROOI21.001) WDNY, and one
count of committing an offense while on pretrial release, in violation of l8 U.S.C. § 3147 (1)
(Count Two 1:09CR00121.00l).
Count Two was predicated on a separate violation of 18 U.S.C. §§ 1028(a) (4), possession of a
false identification document, on which Petitioner had been previously indicted and later pled
guilty in the absence of counsel. On November 5, 2010, the district court sentenced Petitioner to
a term of imprisonment of 27 months on Court One (Bank fraud in violation of 18 U.S.C. §§
1344) and six months on Count Two (committing an offense while on pretrial release in violation
of 18 U.S.C. §§ 3147) to run consecutive to the bank fraud conviction. The Second Circuit Court
of Appeals affirmed the conviction and judgment in 1:09-CROO 121.001 in the WDNY on
January 18, 2012 in violation of the fifth and sixth amendments of the United States
Constitution.
Standard of Review:
It is well established that the remedy of Mandamus is a drastic one, to be invoked only in
extraordinary situations. Kerr v. U.S. District Court, 426 U.S. 394,402, 96 S. Ct. 2119, 48 L.
Ed 2d (1976). Mere error, even gross errors in a particular case, does not suffice to support
issuance of the writ. United States v. Distefano, 464 F.2d 845,850 (2d Cir.l972). Mandamus is
an extraordinary writ used to “confine” an inferior court to the lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when it is its duty to do so. Roche v.
Evaporated Milk Assn., 319 U.S. 21, 26, 87 L.Ed 1185, 63 S. Ct. 938 (1943). In order to
succeed on his petition, the Petitioner must show clear and indisputable right to the issuance of
the writ, amounting to clear abuse of discretion or a usurpation of judicial form. In re:
Steinhardt Partners, 9 F.3d 230, 233 (2d Cir.1993). This particular case falls within the
category of drastic remedies that can rectify an extraordinary situation.
Jurisdiction:
Jurisdiction of this Court is invoked under Title 28, United States Code, Sections 1251(1),
1651(a), and 1254 (1) predicated upon issues affecting the Fifth and Sixth Amendments to the
Constitution, and Supreme Court Rules 20.1, 10, and 13. Rule 20 deals with procedure on a Petition of Extraordinary writ and this Court has jurisdiction of appeals from all final decisions of the Second Circuit Court of Appeals which is over the District Court for the Western District of New York.
In Petitioner’s case, he has exhausted all his direct appeal rights with regards to the issue he now
presents to this Court and no other Court can grant relief sought by this petition. That a manifest
injustice is apparent that goes to the heart of the subject matter jurisdiction in Petitioner’s case,
and a writ is the only “adequate means” to have jurisdiction assessed and thereby prevent
irreparable harm that the Petitioner and the public would suffer. See Cheney v. U.S. District
Court for District of Columbia, 542 U.S. 367, 380 (2004), 124 S. Ct. 2576, 159 L. Ed 2d 459, and… “where deserving extraordinary measures seeking relief, especially if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-467.
Petitioners Rights:
The Fifth Amendment to the U.S. Constitution guarantees that “no person shall be held to answer
for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury.” And not to be indicted by a valid Grand Jury is a staggering Constitutional violation
of the highest order, going to the heart of our judicial jurisprudence. Ex Parte Bain, 121 U.S. 1,
Stirone v. United States, 361 U.S. 212, and Russell v. United States, 369 U.S. 749, 761
(1962). U.S. Supreme Court has shown that it takes seriously and requires to be enforced
vigorously, the Fifth Amendment’s command that a defendant to be charged of “infamous crime”
be tried on an “indictment of a Grand Jury.” That when, “a legally constituted grand jury be the
neutral buffer between the government and the accused – is absent, the accuser’s Fifth and Sixth
Amendment rights may be easily eviscerated.” See United States v. Ferguson, 758 F.Ld 843
(2d Cir.1984), citing Russell v. United States, 369 U.S. 749, 761, 8L.Ed 2d 240, 80 S.Ct. 1038
(1962).
REASONS FOR GRANTING THE WRIT
ARGUMENT
THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ERRED IN DENYING PETITIONER’S WRIT OF MANDAMUS WHEREIN PETITIONER WAS NOT INDICTED BY A VALID GRAND JURY, PROSECUTED UNDER AN EXPIRED GRAND JURY LEAVING THE DISTRICT COURT AND GOVERNMENT WITHOUT SUBJECT MATTER JUSRISDICTION IN PROSECUTING HIS CASE.
ADDITIONALLY, PETITIONER WAS PROSECUTED UNDER TITLE 18, SECTION 1344, 3147 AND 1028 WHICH WERE VOID FOR LACK OF SUPPORTING FEDERAL CODE OF REGULATONS TO SUPPORT SUCH CHARGING STATUTE. THE OFFENCE MUST HAVE BOTH THE STATUTE AND THE SUPPORTING (CFR’S) TO HAVE ANY FORCE OR EFFECT, THUSLY DISTRICT COURT AND GOVERNMENT WAS WITHOUT SUBJECT MATTER JURSIDICTION IN HIS CASE.
The instant case presents three issues on which this Court is requested to grant Certiorari:
First, to resolve a split among the various circuits courts on the Constitutionality of an alleged Grand Jury that was expired way beyond its impaneling date wherein said record and docket is void of any request, order or extension granted by the Chief Judge. Some Circuit courts wink at this Fifth Amendment Constitutional requirement while others say it must be adhered to strictly.
Second, the abuse and unconstitutional actions of having the United States Attorney using a draft indictment, uploading it into the portal of the court docket without ever getting a valid True Bill signed by the foreperson and then using electronic signatures to ‘feign’ the impression that it was done, when in fact the AUSA was the indictor of said Petitioner.
Third, Petitioner challenges whether the District Court and government have subject matter jurisdiction over Petitioner where clear stated Supreme Court cases and others mandate that the statute must be supported by the Code of Regulations and thereby both together (statute and CFR), do they then have force and effect of law. Petitioner was allegedly indicted by Title 18, Sections 1344, 3147(1), and 1028(a) (4), but the Acts placement specifically, Title 18, H.R. 3190, 3231, 1344, 3147(1) et al into the Federal Registry within 30 days of its alleged passing does not exist and there are no supporting Code of Federal Regulations undergirding the statute as required by law. The Court should grant Certiorari on this issue to bring a singular uniformity among the various Circuit Courts.
POINT I
CERTIORARI SHOULD BE GRANTED BECAUSE SECOND CIRCUIT COURT OF APPEALS ERRED IN DENYING PETITIONER WRIT OF MANDAMUS IN THAT PETITIONER’S ALLEGED GRAND JURY INDICTMENT CAME 5 MONTHS AFTER THE EXPERATION OF SAID EMPANELLING, PETITIONER WAS NEVER INDICTED BY A VALID GRAND JURY THUSLY CAUSING THE DISTRICT COURT TO BE WITHOUT SUBJECT MATTER JURISDICTION IN HIS CASE. THE CIRCUIT COURTS ARE SPLIT IN DETERMINING THIS MATTER AND UNIFORMITY IS NEEDED TO BRING HARMONY INTO ALL THE CIRCUIT COURTS
Petitioner contends that he was not indicted by a valid Grand Jury. In Petitioner’s instant case, he was allegedly indicted by an expired grand jury and an argument can be made that there was no empaneled Grand Jury during the alleged time of his indictment. This goes to the heart of the subject matter jurisdiction of the Court and government in Petitioner’s case in which he is challenging. Petitioner’s alleged empanelling, May 4, 2007, alleged indictment April 21, 2009.
“[S]ubject-matter jurisdiction, because it involves the court’s power to hear a case, can never be
forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). Courts “have an
independent obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)
(citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). “Where jurisdiction is
lacking, . . . dismissal is mandatory.” United Food & Commercial Workers Union, Local 919,
AFL-CIO v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).
It is settled law that Article III Courts, have limited jurisdiction to hear cases and controversies.
U.S. Const. Art. III, §§ 2, CI. 1; Allen v. Wright, 468 U.S. 737, 750 (1984). With a few exceptions, exercises of judicial power by Article III courts derive from this constitutional grant. [And], actions taken in excess of those powers are null and void because actions taken without such jurisdiction are a usurpation of judicial forms and facilities. United States v. United Mine Workers, 330 U.S. 258, 309, 91 L .Ed 884, 67 S. Ct. 677 (1947)
Term of Grand Juries:
However, Grand Juries much the same as Art. III Courts are subject to certain limitations.
Fed.R.Crim.P.6 (g), for example, provides that “no Grand Jury may serve more than 18 months.”
Notably, this prescription of limitation on the term of a grand jury was amended in 1983 when
Congress promulgated rules allowing for an extension of the term of a grand jury for 6 additional
months under 18 §§ 1331 or under Rule 6(g), up to a total of 36 months for “Special Grand
Juries. That such extension of the term of 18 months of a Rule 6 Grand Jury was at the order or
behest of the District Court to complete cases or controversies under investigation. See United
States v. Barton, 791 F.2d. 265 (2d Cir. 1986). However an “unauthorized extension” of the
term of the grand jury beyond 18 months is a defect which (Would) go to the very existence of
the grand jury itself•.. “. See United States v. Macklin, 523 F.2d 193 (2d Cir.1975).
Petitioner’s Case: (Argument, Points and Authorities).
It will be easily seen and shown below that under Rule 6 (c) (f) and (g) that Petitioner’s grand
jury had expired. Appendix D. Then additionally, this deprived the District Court of the required subject matter jurisdiction to hear, consider and adjudicate Petitioner’s case.
First, and most importantly that this Court (with all due respect) be mindful of the Petitioner’s
pro se status and thus construe his papers liberally to raise the strongest argument they suggest.
Petitioner, “regardless if deemed in-artfully plead, must be held to a less stringent standard than
formal pleadings drafted by bar-admitted attorneys” in the nature of Haines v. Kerner, 404 U.S.
519-521, (1972) and “We liberally construe pleadings and briefs submitted by pro se litigants, see Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000), reading such submissions “to raise the
strongest arguments they suggest,” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994);
Bertin v. United States, 478 F3d 489, 491 (2d Cir. 2007).
Petitioner’s case 1:09CR121-001 reveals that the term of the grand jury alleged to have returned
an indictment against him had in fact expired. Rules in (WDNY) state Chief Judge must extend term. Appdx. K. That the record in the District Court is completely silent with regard to any judges’ order extending its term. [Appendix E. Dkt. #1] Petitioner’s docket summary does not show or demonstrate on the record that any alleged indictment was returned by any particular judge in open court, pursuant to 18 U.S.C. §§1746. The entire record is void of this event.
Second, the Petitioner further asserts that after diligent investigation of his charge in the
underlying, that he made diligent inquiry to the head of the Clerk of the Court (Jean Marie McCarthy) for the Western District of New York and the clerk in charge of scheduling extensions for the grand juries Charlene Shumaker, both conceded that there was no notation placed into the record anywhere of any such extension. (Appendix F Petitioner’s affidavit) “The clerks further stated that at the time during Petitioner’s indictment, there was only one grand jury in existence, not two,” and the one that was in existence was not his. Thusly, the Court clerks could not show any definitive confirmation that an order was in the record with the Court extending the 18 month term of the Rule 6 Grand Jury. As shown on the face of Petitioner’s indictment, the grand jury was empanelled on May 4, 2007 and some twenty-four months later he was to have been indicted April 21, 2009, by the same grand jury well beyond its 18 month term. The Petitioner submits the dicta of, “In learning the whole story does not end at trial.”
Third, with respect to In re United States Catholic Conference, 824 F.2d 156 (2d Cir. 1986),
this court opined that “we have a sua sponte duty to review the lower court’s subject matter
jurisdiction.” To Note, Petitioner’s claim he believes is inapposite in this Court’s determination of
United States v. Sherry, 2000 U.S. App. LEXIS 23806 (2d Cir. Sept. 2000), as he is not
speculating about indictment as noted above, the grand jury is alleged to have been empanelled on May 4, 2007, then he is indicted as it were on April 21, 2009. As stated above in Appendix E, Docket 1, and Appendix F, Petitioner made his inquiry of the Court Clerk(s) which revealed no judicial order or ascent in record extending his grand juries term. “The term of the Grand Jury starts on the date of empanelment, which is the date it is first convened. United States v. Armored Transport, 629 F.2d 1313, 1316-17 (9th Cir.1980).
Federal grand juries are creatures of Rule 6, Federal Rules of Criminal Procedure. Ordinarily, a
regular grand jury in the federal system can sit for up to a maximum of eighteen months,
although the court can discharge the grand jury before the end of the eighteen-month period.
Rule 6(g), Federal Rules of Criminal Procedure. In fact, it is the practice in many districts to
excuse grand juries after only 12 months or as soon thereafter as the grand jury’s business is
concluded and in this case, the express term of the original term of the grand jury was only
twelve months. Rule 6 provides that in the case of a regular grand jury, the court may extend
the service of the grand jury for a period of six months or less if the court determines that the
extension is in the public interest. Fed.R.Crim.P., 6(g).
The purpose of this provision of Rule 6 was to permit some degree of flexibility as to the
discharge of grand juries and to avoid (1) the waste of time and resources required to present a
case to a successor grand jury when the first grand jury has expired shortly before the end of an
investigation; and (2) precipitous action to conclude an investigation on the eve of the expiration
date of the grand jury. Advisory Committee Note to 1983 Amendment to Rule 6(g), 97 F.R.D.
245, 277 (1983). Rule 6(6) appears to contemplate only one six-month extension. Moreover, the
Advisory Committee Note on the amendment which added subsection (g) indicates that
extending grand juries was intended to be the exception and not the norm. Advisory Committee
Note to 1983 Amendment to Rule 6(g), 97 FRD 25, 277 (1983).
A grand jury whose term has expired is no longer considered a grand jury; it loses the power to
indict, to subpoena witnesses, and to engage in any of the other actions that a grand jury is
otherwise entitled to perform. United States v. Bolton, 893 F.2d 894 (7th Cir. 1990);
United States v. Macklin, 523 F.2d 193 (2d Cir. 1975) . See also United States v. Armored
Transp., Inc., 629 F.2d 1313 (9th Cir. 1980); United States v. Fein, 504 F.2d 1170 (2d Cir.
1974).
It is well settled that the return of an indictment after expiration of the term of a grand jury is a
nullity. Wright & Miller, 1 Fed. Prac. & Proc. Crim.3d § 112(“An indictment issued by a grand
jury whose term had expired is void and no effect can be given to a nunc pro tunc order that
purported to extend the term of the grand jury retroactively.”) The trial court completely lacks
jurisdiction to proceed under such an indictment and it is fundamental error that may be raised at
any time, even after trial of the case is concluded. United States v. Bolton, 893 F.2d 894 (7th Cir.
1990) (“It is well settled that unless there is a valid waiver, the lack of a valid indictment in a
felony case is a defect going to the jurisdiction of the court, citing Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959)).
Both regular and special grand juries are statutory creations, See, e.g., In re Mills, 135 U.S. 263,
267, 10 S.Ct. 762, 763, 34 L.Ed. 107 (1890), and each can exist only as authorized by the statute
or rule pertaining to it. See, e.g., United States v. Macklin, 523 F.2d 193, 197 (2d Cir.1975).
Accord United States v. McKay, 45 F.Supp. 1007, 1015 (E.D.Mich. 1942). See also Federal
Grand Jury: A Guide To Law And Practice, Susan W. Brenner, Gregory G. Lockhart and Lori E.
Shaw, § 6.8.1. When a regular grand jury is convened in accordance with Rule 6 it exists for no
longer than specified, and its actions during the specified period only are lawful. Id., at 195. See
also Federal Grand Jury: A Guide to Law and Practice, § 6.8.1, supra.
A grand jury’s existence beyond its initial term depends on the district court: If a court extends a
grand jury’s term, and if the extension is authorized by the statute or rule governing that grand
jury, the grand jury’s existence has been lawfully continued and its actions during the extended
term are valid. Id., at 195-197. If a district court does not extend a grand jury’s term, or does not
do so in accordance with the statute or rule governing that grand jury, the grand jury ceases to
exist at the end of its term and any actions it takes thereafter are void ab initio. Id. at 197. See
also United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir.1990), cert. denied, 498 U.S. 981,
111 S.Ct. 510, 112 L.Ed.2d 522 (1990) (“An indictment issued by a grand jury whose term is up
and has not been validly extended is void.”). An indictment returned by a grand jury after its
term lapsed without being lawfully extended is a nullity, which does not give the district court
jurisdiction to proceed in that matter. Id., at 196-197. Accord United States v. Bolton, 893 F.2d
894, 895 (7th Cir. 1990). An unauthorized extension of the term of a grand jury beyond 18
months is a defect that goes to the very existence of the grand jury itself. United States v.
Macklin, 523 F.2d 193 (2nd Cir. 1975). A grand jury created under Rule 6 could not function as
de facto grand jury beyond its term even though it had color of right to exist in order extending
term, and such a grand jury was powerless to return an indictment based on testimony given after
expiration of the term of the grand jury.United States v. Fein, 504 F.2d 1170 (2nd Cir. 1974).
The Macklin Case:
Pursuant United States v. Macklin, 523 F.2d Cir. 1975), the 2nd Circuit Court affirmed the District Court’s dismissal of [his] indictment, (opining) that the indictment handed down by the grand jury was a nullity because it was issued after the expiration of the statutory 18 month period, Fed.R.Crim.P. 6(g). This Court further held that the trial court was thus without jurisdiction to hear the case because there had been NO valid indictment, Fed.R.Crim.P.7(a). Concluding, consistent with “Fein” that this is not merely a defect in the “institution of the prosecution”, but left the court without jurisdiction. See “U.S. v. Macklin” (citations omitted). Therefore, under the principles of In Re Von Bulow, 828 F.2d 94 (2d Cir. 1987), the Petitioner is entitled to relief in that the District Court erred in not apprising itself of its lack of a valid case or controversy, to wit expired term of the grand jury, and then the 2nd Circuit Court of Appeals denied Petitioner’s Writ of Mandamus to rectify such an unconstitutional act and corresponding lack of subject matter jurisdiction in his case.
A claimed nunc pro tunc order cannot necessarily validate an indictment returned after expiration of the term of the grand jury. United States v. Lytle, 658 F.Supp. 1321, 1326 -1327 (N.D.Ill. 1987); United States v. Fein, 504 F.2d 1170, 1173 (2d Cir. 1974); and see also: United States v. Johnson, 123 F.2d 111, 120 (7th Cir. 1941), rev’d on other grounds, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943) (a reversal that, at least by implication, effectively confirmed the nullity of an indictment by a grand jury that was then without legal existence; see id at 507, 508, 63 S.Ct. at 1235, 1236).
A court’s failure to act, or a Court’s incorrect action, does not authorize the entry of a nunc pro
tunc decision. Occidental Fire & Casualty Company of North Carolina v. Great Plains Capital
Corp., 912 F.Supp. 515 (S.D.Fla. 1995), citing Recile v. Ward, 496 F.2d 675, 680 (5th Cir.
(1974) (quoting Freeman on Judgments, § 131). Similarly, it is not the function of a nunc pro
tunc order to supply or modify matters of fact.
The issuance of orders nunc pro tunc is a mechanism not available for the benefit of parties who
fail to observe proper procedure. Delays or errors which are attributable to the laches of the
parties do not entitle those parties to the benefit of a retrospective judgment. Mitchell v.
Overman, 103 U.S. (13 Otto) 62, 64-65, 26 L.Ed. 369 (1881).
We also know Constitutionally that there cannot be a secret docket or a dual docketing record system. In The Hartford Courant Company v. Joseph H. Pellegrino, 380, F3d, 83, (2004), “The court determined that the “maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings” and that the “dual-docketing system can effectively preclude the public and the press from seeking to exercise their constitutional right of access to the transcripts of closed bench conferences.” The dual docketing system thus violated the public’s First Amendment right of access by rendering it impossible for anyone to exercise that right.
Additionally, the secrecy of the Grand Jury ends when it returns an indictment and is then discharged. United States v. General Motors, 352 F.Supp 1071, 1072 (1973); Metzler v. United States, 64 F2d 203, 206 (1933); (Where the ends of justice can be furthered thereby and when the reasons for secrecy no longer exists, the policy of the law requires that the veil of secrecy be raised); Hertzog v. United States, 99 Led 1299, 1302 (1955); ([T]he veil of secrecy can be lifted from the grand jury minutes when “the ends of justice can be furthered thereby”); United States v. Socony-Vacuum Oil Co., 310 US 150, 233, (1940); ([A]fter the grand jury’s functions are ended, disclosure is wholly proper where the ends of justice require it); (Certainly “disclosure is wholly proper where the ends of justice require it”); Pittsburg Plate Glass Co. v. United States, 360 US 395, 400 (1959)
It is clear from the record or lack thereof that there was no order given to extend the grand jury beyond its 18 month term. It is the pattern of this district to go 12 months and then start anew. The record is totally absent and Petitioner request that this Court grant Certiorari on this issue.
POINT II-
CERTIORARI SHOULD BE GRANTED BECAUSE SECOND CIRCUIT COURT OF APPEALS ERRED IN DENYING PETITIONER WRIT OF MANDAMUS IN THAT AUSA MAY HAVE PERSONALLY INDICTED PETITIONER MISUSING THE E-GOVERNMENT ACT TO EVADE INDENTIFICATION OF GRAND JURY FOREPERSON, THEREBY DISTRICT COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER PETITIONER TO TRY, PROSECUTE, CONVICT AND INCARCERATE PETITIONER IN DIRECT VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO THE CONSTITUTION. SOME CIRCUIT COURTS WINK AT THIS VIOLATION AND OTHERS DO NOT, UNIFORMITY IS NEEDED
It appears, as shown on the face of the indictment, that the government attorney is misusing the proscriptions of the (e-government) act and Western District of New York Electronic Filing Policies to evade identification of any grand jury foreperson. Noticeably, neither policy provide for the complete removal of the signature of any grand jury foreperson. Rather, redaction via blackening out a major portion of a valid signature. Neither local Rules of the Western District of New York, nor electronic filing policies allow for electronic signatures of an (unregistered with Pacer) grand jury foreperson. In fact, the Administrative Procedures Guide states in §§ 2 (c) (1), Appendix G that “Charging instruments in criminal cases shall be filed in the traditional manner rather than electronically.” Petitioner’s indictment had both the grand jury foreperson and the US Attorney signature filed electronically [“/s/” foreperson] wherein the indictment should have had the Foreperson’s cursive signature redacted shown and the US Attorney signature in cursive.
Petitioner also believes that there is a sufficient showing (by the government attorney) of misconduct before the Grand Jury to warrant further investigations. See United States v. Agurs, 427 U.S. 97, 107-11 (1976). This same AUSA has shown a pattern of such misconduct such as in a recent case in, United States v. Koschtschuk: August 1, 2011- Case 1:09-cr-00096-WMS-JJM and Certified copy of ORDER OF DISMISSAL (Misconduct before the grand jury showing Fifth Amendment violations and Fraud upon the Court in the WDNY). Appendix H. In this particular case, the accused and others were being prosecuted under a third superseding indictment Docket #143, but when the Decision and Order of his dismissal came, and also stated in his Docket #634, that his ‘pending’ indictment was dismissed. His third superseding indictment wasn’t pending, his indictment was in place and his case was being prosecuted as though the indictments were valid, but they were not. Why? Impropriety before the grand jury by AUSA, Anthony Bruce.
In short, here is the scheme that is being employed by the AUSA, Anthony Bruce.
The Authority of the AUSA: states under 28 U.S.C. Section 547 entitled that “Duties of the United States Attorney, Section 547 does allow the government attorney to start a criminal matter by electronically signing a draft indictment, then uploading it to the Court docket portal. This act is done in place of grand jury or foreperson signing (approving the indictment), then redaction of his signature by the Court after the alleged “returning” of their ‘True Bill’. What is done next is that the AUSA after not getting a valid indictment signed by the jury foreperson, he then files the alleged indictment with the Clerk’s office using the New York electronic filing system as though the foreperson did sign it by filing the ‘True Bill’ in place of the foreperson. In essence, the AUSA becomes the personal indicter of the Petitioner instead of the grand jury.
In Petitioner’s case, the alleged Grand Jury met for only one day on April 21, 2009, about 24 months after it being empaneled on May 4, 2007, allegedly indicted Petitioner 6 months past the 18 month limit by Rule and statute as described in Point I above.
Remember, the Clerks of the (WDNY) said that Petitioner’s empaneled jury was not in existence and there were not at that time period two Grand Juries empaneled during the alleged time frame of his indictment. A newly empaneled Grand Jury was in existence at that time and it started on May 4, 2008, and that Grand Jury was not his. The allegedly expired Grand Jury met for only one day and indicted him on that same day, April 21, 2009.
This goes to the heart of accountability to preserve the proceedings of the judicial process. If District Courts do not enforce whether a Grand Jury is valid or expired and they do not have a documented record that shows an order for extension was granted, and they are not held accountable or mandated to do such, such unbridled runaway judicial discretion can easily vitiate and cause 5th and 6th Amendment violations to the Constitution, which can easily eviscerate the people’s protections from government. If some Courts wink at this process to enforce, and place into the record the ordered extension from the Chief Judge, then what is the sense of having the pretense of a Grand Jury or Rule 6(g) at all. Why has either one of them? Reading the explanations of the judges in the cases below, as they masterfully and artfully dance around these bed rock Constitutional principles with eloquent explanations that quite frankly defy the spirit as well as the letter of the law. This latitude invites the temptation to bypass the Constitutional protections afforded the accused. This is exactly what may have happened in Petitioner’s case. It is so important for the Supreme Court to put an end to a to this practice which can be very disconcerting to the public’s view of the judicial process as well as elevating the hazards to the accused who is Constitutionally violated.
As an example: In United States v. Dean C. Plaskett, et al, Criminal No. 2007–60. Feb. 4, 2008, the defendants argue that the grand jury foreperson failed to sign the indictment, and therefore the indictment should be dismissed. Rule 6(c) is clear; the foreperson … will sign all indictments. The foreperson—or another juror designated by the foreperson—will record the number of jurors concurring in every indictment and will file the record with the clerk, but the record may not be made public unless the court so orders. This rule seems clear and straight forward, however, the Court stated, “ assuming the foreperson had failed to sign the indictment, that defect would not rise to the level of prejudicial error sufficient to warrant dismissal of the indictment.”, quoting this Court, See Hobby v. United States, 468 U.S. 339, 344, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984) (“[T]he foreman’s duty to sign the indictment is a formality, for the absence of the foreman’s signature is a mere technical irregularity that is not necessarily fatal to the indictment.”); see also, e.g., United States v. Willaman, 437 F .3d 354, 361 (3d Cir.2006) (holding that “the failure of the grand jury foreperson to sign the indictment [w]as a mere technical deficiency, and thus conclud[ing] that [the defendant]’s challenge to the sufficiency of the indictment d[id] not raise an issue entitling him to relief”); United States v. Titchell, 261 F.3d 348, 351 (3d Cir.2001) (holding that, while the failure of the grand jury foreperson to sign the indictment was error, such error did not prejudice the defendant).
In United States v. Monty M. Mariner, No. 4:09–cr–101.No. 4:12–cv–072. Dec. 4, 2012, on the issue in dealing with grand jury foreperson signatures, “Even if one or both signatures were missing, Mariner would not be entitled to relief. Courts have recognized that the absence of signatures of the foreperson and the government attorney does not render an indictment defective and deprive a district court of jurisdiction.” In Hobby v. United States, 468 U.S. 339 (1984), in which the Supreme Court considered a claim of discrimination in the selection of the grand jury foreperson, the Supreme Court described the foreperson’s duties as set out in Rule 6(c), including the signing of indictments, as “essentially clerical in nature” which “carry with them no special powers or duties that meaningfully affect the rights of persons that the grand jury charges with a crime.” Id. at 344–45. The Court also noted the foreperson role has no special authority, separate from the grand jury as a whole, to act in a manner which influences or determines whether a person should be prosecuted. Id. at 345. The foreperson’s signature on an indictment is a formality and the absence of the signature is a technical defect that is not necessarily fatal to the indictment. Id. Appellate courts have also rejected challenges on appeal by defendants alleging their indictments were not signed by the foreperson. See United States v. Titchell, 261 F.3d 348, 351 (3d Cir.2001); United States v. Marshall, 910 F.2d 1241, 1243 (5th Cir.1990) (noting the commentary toRule 6(c) of the Federal Rules of Criminal Procedure makes clear that the foreperson’s failure to sign the indictment is an irregularity and is not fatal, quoting United States v. Marshall, 910 F.2d 1241, 1243 (5th Cir.1990).
In United States v. Morse, 613 F.3d 787 (8th Cir.2010), the defendant filed a pretrial motion to dismiss for lack of a signed indictment, which was denied by the district court.Id. at 791. On appeal, the defendant argued that the failure to provide him a signed copy of his indictment violated his due process rights. Id . at 793. In rejecting the claim, the Eighth Circuit found that signatures on the indictment of the foreperson and government attorney “are a formality, and even the lack of signatures would not render an indictment invalid.” Id. (citing United States v. Willaman, 437 F.3d 354, 360 (3d Cir.2006) and United States v.. Irorere, 228 F.3d 816, 830–31 (7th Cir.2000)). Even if the indictment in his case had been missing the signatures of the foreperson and an attorney for the government, those defects would not render the indictment fatally defective nor deprive the district court of jurisdiction.
Petitioner claims that the problem with this type of thinking and judicial analysis is that it is all based on the assumption and presumption that all parties in the judicial process are acting on the up and up. If a vindictive AUSA cannot gain a valid grand jury indictment, what’s to stop him from uploading the draft indictment into the Clerk’s portal using the e-government act to file electronically the electronic signatures of both he and the foreperson when there was no foreperson? And since the Court’s above have ruled that the signatures of the foreperson and AUSA are but a technicality and formality, and not fatal to the indictment, the Clerk is none the wiser to what has happened. Even if the Magistrate states he verified everything in open Court and verified the grand jury Concurrence, where is the proof that he did it in and on the record? Anybody can say they did anything, but without a mandate that it be presented into the record or docket and proved without a doubt, all of it becomes hearsay by the judicial officers. This causes pause in ascertaining the validity of the judicial process in the public’s eye, which can promote uncertainty in their minds.
In Petitioner’s case, it looks as if the grand jury was most certainly expired; thusly it became ripe for abuse. If Petitioner’s indictment was expired, it doesn’t matter if there was any signature(s) on the indictment or not, or if there was a court clerks oversight or not, or if there was an open court concurrence verification or not, all of it is a nullity. The Court should revisit it’s ruling in Hobby, supra and strengthen and remove the laxity of the straight forward wording of the Rule 6 requirements. This should be done by the Court to ensure the protections of the grand jury’s ‘True Bill’ procedures and Constitutionally reign in the potential abuse of the AUSA, and loose discretion of the Chief Judge of the District in his latitude in granting extensions to empaneled grand juries. Instead of courts saying that it may or may not be signed by the foreperson and AUSA, or that a Chief judge may or may not grant a grand jury extension, wherein is not shown on the record anywhere, and where the judges and judicial officers say, just ‘trust me’, I really did do it though, why not state and do exactly what Rule 6 (c), (g) says they should do. This would eliminate the temptation for abuse, the judicial system would have proper structure on what to do and follow, and potential citizen’s would not be indicted by fictitious grand juries or an over zealous prosecutor as what may have happened here. Remember, this AUSA, Anthony Bruce, had a case recently thrown based on misconduct. Appendix H. The magistrate in Petitioner’s case even stated on the record that this same AUSA was exceedingly vindictive towards the Petitioner. Appendix I. The AUSA may have knowingly indicted Petitioner with an expired grand jury, or personally himself, because the Rules invite such mischief that can cause for the accused the loss of life and limb and this is something that can be easily avoided and remedied. The Supreme Court and Appellate Courts do not have a ton of case law on this and the Circuit Courts are certainly confused on its adherence. Clarity would bring uniformity and integrity, to not only to all the Circuit and District Courts, but also to the sanctity of the Constitution and the public trust.
Petitioner asserts that the appellate court failed in its duty to determine the validity of his Grand Jury, and if it is invalid, then any offense it charged is a nullity whether or not its raised before trial, at trial or on appeal’. United States v. Foley, 73 F3d 484, 488 (2d Cir. 1996).
Thus the Court should grant Certiorari to rectify this unconstitutional act wherein the District Court and government acted without subject matter jurisdiction is his case, thusly everything in Petitioners case is void from its inception.
POINT III
THE DISTRICT COURT AND GOVERNMENT DO NOT HAVE SUBJECT MATTER JURISDICTION OVER PETITIONER WHEREIN TITLE 18, SECTIONS 1344, 3147(1) AND 1028(A)(4), HAVE NOT BEEN PLACED INTO THE FEDERAL REGISTRY WITHIN 30 DAYS OF ITS ALLEGED PASSING AND THERE EXISTS NO CODE OF FEDERAL REGULATIONS SUPPORTING THE STATUTE AS REQUIRED BY LAW
Petitioner contends that Title 18, Public Law 80-772, was never placed into The Federal Registry as required by law for 30 days after its alleged passing, thusly, in violation of The Federal Registry Act as well as The Administrative Procedures Act. Should the Act be found to have been placed into the Federal Registry within 30 days of its alleged passing, what remains unconstitutionally is that there does not exist the underlying supporting Federal Code of Regulations (CFR’s) to support the statutes which vitiates such law. The whole of Title 18, Sections H.R. 3190, 3231, and their supporting subsections are missing in the Code of Federal Regulations books and manuals. Appendix J. The statutes without the supporting accompanying regulations make such law wholly void; “we think it important to note that the Act’s civil and criminal penalties attach only upon violation of the regulations” … and without them, …” the Act itself would impose no penalties on anyone.” See: California Banker’s Assoc. v. Schultz, 416 US 21; 22, 26, (1974), United States v. Mersky, 361 US 431, 438 (1960) and Hotch. v. United States, 212 F.2d 280, 283 (1954) all in violation of The Federal Registry Act, The Administrative Procedures Act and Fair Warning Doctrine.
“Once promulgated, these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language.” “The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other.” [Emp. added] United States v. Mersky, 361 US 431, 438, 80 S.Ct. 459, 4 L.Ed.2d 423. The court in Hotch v. United States, 212 F.2d 280, 283 declared that, …“if the rule itself is not published, it follows that it has not been issued; and if a rule has not been issued, it has no force as law.” “If certain acts have been made crimes by duly enacted law, the knowledge of their contemplated administrative proscription cannot subject the informed person to criminal prosecution. While ignorance of the law is no defense, it is conversely true that a law which has not been duly enacted is not a law, and therefore a person who does not comply with its provisions cannot be guilty of any crime. Id. at 284”.
Petitioner contends said Acts placement specifically, Title 18, H.R. 3190, 3231, 1344, 3147(1) et al into the Federal Registry does not exist and there are no supporting Code of Federal Regulations. Petitioner cannot prove a negative. The burden is on the government to prove a positive. The government, District Court and Appellate Court never responded to all of Petitioner’s paperwork concerning this specific issue. When Petitioner repeatedly challenged the subject matter jurisdiction of this action to the government and District Court, the burden then shifted to the government to prove that they have it. The District Court never compelled the government to respond to Petitioner and the Court itself stood silent. All published such books of said Title 18 CFR’s are ‘void’ and do not contain such supporting (CFR) regulations listed in their books, especially section 1344, 3147(1) and 1028(a)(1) in which he was charged. Appdx. J
When a Court lacks subject matter jurisdiction, the issue can be raised anytime even long after a case has been settled. “Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.” Melo v. US, 505 F2d 1026 (1974). “The law provides that once State and Federal jurisdiction has been challenged, it must be proven.” –Main v. Thiboutot, 48 U.S. 1, 100 S. Ct. 2502 (1980). “Once jurisdiction is challenged, it must be proven.” –Hagens v. Lavine, 415 U.S. 533 (1974).
Petitioner contends said Acts placement specifically, Title 18, H.R. 3190, 3231, 1344, 3147(1) et al into the Federal Registry 30 days after its alleged passing does not exist and there are no supporting Code of Federal Regulations. The offense charged must have both the statute and the supporting Code of Federal Regulations to have any force or effect, thusly the District Court and government were without subject matter jurisdiction in his case.
Petitioner requests this Court to grant Certiorari to review and rectify this issue concerning him.
Conclusion:
Petitioner has shown that there is no showing in the enclosed certified docket sheet and records Appendix E where the District Court judge extended the term of the empanelled Grand Jury beyond the 18 month time frame wherein defendant was indicted according to F.R.C.P., Rule 6(c) (g) (f). The record is also bare of any grand jury concurrence, extension, and where it was returned in open court. The judicial officers may say it was done, but there is no evidence in the record that it was in fact done.
Also, there may be only an electronic signature(s) obtained by the AUSA wherein he was the personal indictor of Petitioner and there was no redacted signature signed by the Grand Jury Foreman, as required in the Rules and policies in the Western District of New York. Appendix G. The Petitioner may have been indicted by no grand jury at all.
Relief Requested:
Wherefore, due to the government’s lack of subject matter jurisdiction as described in all the above three issues concerning indictment 09-CR-121-S, a Writ of Certiorari by this Court in reviewing the denied Writ of Mandamus by the 2nd Circuit Court will “aide in the administration of justice” because “exceptional circumstances” warrant the extraordinary remedy asked for by the Petitioner Shane Christopher Buczek. Therefore, Petitioner respectfully petitions this Honorable Court to issue the Writ forthwith and provide Petitioner just and proper relief due him, under all and appropriate circumstances.
Dated: 26, of July, 2013
Respectfully Submitted,
Shane-Christopher:Buczek
Shane Christopher Buczek – Pro Se
PO Box 93,
Derby, New York 14047
716-947-5384
Verification
I Shane-Christopher:Buczek in this above entitled matter, hereby verify under the penalty of perjury, under the laws of the united states of America, that the above statements of facts and law are true and correct, according to the best of My current information, knowledge, and belief, so help Me God, pursuant to 28 USC Sec. 1746 (1)
July 26, 2013