From: Dan Meador dmeador@poncacity.net
Date: Monday, January 10, 2000 2:03 PM
Subject: FEDERAL CRIMINAL PROSECUTION

Essentials for Federal Criminal Prosecution

By Dan Meador

Many people have called or written to ask assistance with defense
against Federal criminal prosecution. I apologize for not having time to
go into detail for many individual calls, so I will address fundamentals
that don't go to issues, but should abort most Federal prosecution
without addressing issues. The keys are in the Fourth and Fifth
Amendments to the Constitution of the United States:

Amendment IV: "… no Warrant shall issue, but upon probable cause,
supported by Oath or affirmation…"

Amendment V: "No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury…"

Probable cause begins with an affidavit of complaint. Whether the
complaint is in writing or submitted orally, the complaining party must
make a complaint, under oath, to a committing magistrate. Federal
complaints should be written. Based on the probable cause hearing, the
magistrate issues search warrants, arrest warrants, etc. Only then does
a grand jury have anything to consider. In the event that the United
States is allegedly the injured party, a government officer or employee
must make the affidavit of complaint in writing, then must swear to
authenticity of the complaint in an open hearing before a committing
magistrate. Although particulars have been eliminated from most titles
of the current edition of the United States Code, Criminal Rules of
Procedure preserve the process. Where tax-related matters are concerned,
1934 & 1940 editions of the U.S.C. had a section that specifically
required revenue agents to make affidavits of complaint.

The key today is in Rule 6(b)(1), of the Federal Rules of Criminal
Procedure:

"(1) Challenges. The attorney for the government or a defendant who has
been held to answer in the district court may challenge the array of
jurors on the ground that the grand jury was not selected, drawn or
summoned in accordance with law, and may challenge an individual juror
on the ground that the juror is not legally qualified. Challenges shall
be made before the administration of the oath to the jurors and shall be
tried by the court."

In this case, the "either/or" statement relating to challenges includes
prosecuting and defense attorneys. The final sentence requiring
challenges before oaths are administered locks things down. It is
impossible for defense counsel to challenge the grand jury panel, or
individual grand jury members, prior to administration of the oath
unless a defendant knows a grand jury will be investigating a complaint
against him.

The remedy is listed in F.R.Crim.P.: Where challenges to the grand jury
were denied, a motion to dismiss should be constructed in compliance
with 28 U.S.C. § 1867(e).

The antecedent complaint is preserved at Rule 1 F.R.Crim.P.:

"The complaint is a written statement of the essential facts
constituting the offense charged. It shall be made upon oath before a
magistrate judge."

With these elements in place, we can now see the appropriate "due
process" necessary for criminal prosecution in courts of the United
States: (1) The complaining party, whether a government officer or agent
or a private citizen, must make an affidavit of complaint: (2) the
affidavit of complaint must be submitted in a probable cause hearing
before a committing magistrate; (3) if he finds probable cause, the
committing magistrate must issue an arrest warrant (Rule 4); (5) there
must be an initial appearance before the issuing magistrate (Rule 5);
then (6) the grand jury seating and investigation process can commence.
In the preliminary examination, a defendant may cross-examine witnesses,
introduce witnesses, etc., and can abort the criminal prosecution
process right there (see Rule 5.1, F.R.Crim.P.)

We've gone over numerous docket sheets, and virtually all are missing
the following: There is rarely if ever an affidavit of complaint; there
is never a probable cause hearing; the defendant is excluded from the
grand jury seating process; the individual indictment is rarely returned
in open court (several are returned simultaneously, without the
individual indictment being addressed); and the grand jury certificate
of concurrence, which documents sufficiency of the grand jury vote, is
rarely if ever recorded on the docket. Without these essentials,
criminal prosecution should be aborted for denial of Fourth and/or Fifth
Amendment guarantees.

The manner of jury selection, etc., is in Chapter 121 of Title 28,
beginning with § 1861. The grand jury investigation relating to banking
laws is 18 U.S.C. §§ 3321, et seq., and the special grand jury is §§
3331, et seq.

What U.S. Attorneys are doing is convening grand juries under auspices
of the special grand jury at 18 U.S.C. §§ 3331, et seq. There is a
presumption that the investigations are of government officers or
employees and criminal activity involving government. In this forum, the
magistrate or the U.S. Attorney may submit matters for investigation,
but the special grand jury is limited to issuing reports of various
sorts (§ 3333). It does not have authority to issue indictments even
though findings might lead to indictment by a grand jury with general
powers.

Here is a clue to the nature of what is happening: In historical notes
following 28 U.S.C. § 531, we find that, "The section [§ 531] is
supplied for convenience and clarification. The Bureau of Investigation
in the Department of Justice, the earliest predecessor agency of the
Federal Bureau of Investigation, was created administratively in 1908."

Then at 28 U.S.C. § 535, we find authority of the Attorney General and
the Federal Bureau of Investigation: "(a) The Attorney General and the
Federal Bureau of Investigation may investigate any violation of title
18 involving Government officers and employees…"

That's it, there ain't no more. This is the only Code section, and
therefore statute [Statutes at Large], which authorizes the Attorney
General, the Department of Justice, or the FBI, to investigate crimes in
the Union of several States. In the context of 4 U.S.C. §§ 71 & 72,
which (1) establish the District of Columbia as the seat of government,
then (2) prohibit any department attached to the seat of government from
operating outside the District of Columbia without statutory authority,
we're left with the conclusion that the juristic or "straw man" name
(JOHN DOE instead of John Doe) is predicated on the presumption of
whoever is prosecuted being a government officer or employee. Since the
FBI is an administratively created agency, it cannot operate beyond
statutory authority of the Attorney General and the Department of
Justice. We discussed this in a previous submission that went into the
juristic, trade or commercial name definitions at 15 U.S.C. § 1127.

In a discussion Friday evening, the subject of IRS criminal complaints
came up. Federal grand juries operate more or less as rubber stamps for
U.S. Attorneys as people are generally ignorant of tax laws. At the
minimum, an affidavit of complaint, and the ensuing indictment, should
list (1) a taxing statute, and (2) a liability statute, or there is no
basis for criminal prosecution. In other words, simply not filing tax
returns, moving money somewhere not convenient to Federal government,
etc., cannot be made a crime to the point there is a tax at issue, and
whoever is asked to defend has knowledge of what he is defending
against. What tax is owed, and what statute makes him liable for it?
Only then does a penalty statute have validity.

In sum, if anyone knows he or she is being investigated, the
investigation should be challenged on constitutional guarantees and
prescribed procedure at the onset. Depending on how far the
investigation has progressed, it might be useful to file an affidavit of
criminal complaint with the Assistant Attorney General over the Criminal
Division of the Department of Justice  (see delegation of authority at
28 CFR § 0.55), under authority of 28 U.S.C. § 535(b).

Again, I apologize for not being more direct help, but we're swamped
with enough things that we presently don't have time to drop what we're
doing to deal with individual cases.

Dan Meador