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[Scooplist] OPINION RELEASE: Shame on Me / First Half of Report: Larken Rose

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  • rick@stanley2002.org
    Rick Stanley Constitutional Activist Phone: 303-329-0481 E-mail: rick@stanley2002.org We the People Scoop 06/01/05 ** Special Edition **
    Message 1 of 1 , Jun 1, 2005
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      Rick Stanley
      Constitutional Activist
      Phone: 303-329-0481
      E-mail: rick@...

      We the People Scoop 06/01/05 ** Special Edition **
      ** Visit the website: http://www.stanley2002.org **
      ** Like the Scoop? Forward it to everyone you know! **

      OPINION RELEASE: Shame on Me / First Half of Report: Larken Rose

      ----- Forwarded message from larken@... -----
      Date: Thu, 26 May 2005 21:19:38 -0700 (PDT)
      Subject: Shame on Me / First Half of Report
      To: rick@...

      Dear Subscriber,

      Shame on me for taking a WEEK to report on our recent pre-trial hearing,
      especially since not reporting on it could give people the impression that
      it didn't go well (i.e. "If it was good news, he would probably have told
      us right away"). Despite my bad job of reporting (maybe I should work for
      the New York Times), the hearing went quite well.

      The hearing was about TWO "motions" before the court, both filed by my
      wife and I: 1) a motion to unseal grand jury transcripts, and; 2) a motion
      to suppress. This message will tell what went on regarding the FIRST
      motion. I'll send a separate message about the motion to dismiss, though
      both were addressed at the same hearing.

      Shortly after we were indicted by a grand jury for "willful failure to
      file" (in late February), my wife and I filed a motion to unseal grand
      jury transcripts. We were NOT asking for any of the grand jury
      deliberations; we only wanted to see what the PROSECUTOR(s) had said to
      the grand jury, because we had reason to believe that: 1) the government
      had failed to properly instruct the grand jury on the law to be applied
      (specifically regarding the element of "willfulness"), and; 2) the
      government had engaged in improper and irrelevant demonization of myself
      and my wife in front of the grand jury. (Each of those can result in an
      indictment being thrown out.)

      We have NOT yet asked for the indictment to be dismissed. We only asked
      to see the record of what the prosecutors said to the grand jury. (We
      also asked for any testimony by IRS employees, but we later dropped that
      request. And we had asked for copies of our own testimony, but we
      received that through the "discover" process prior to the hearing, so that
      was moot when the hearing happened.)

      In our motion, we pointed out that all of the reasons the courts cite to
      justify secrecy of grand jury proceedings have to do with GRAND JURORS and
      WITNESSES being able to do their job without undo influence. The reasons
      have NOTHING to do with any interest served by the GOVERNMENT'S comments
      being kept secret.

      The government's written response to our motion argued things that by
      themselves were quite interesting and informative. For example, rather
      than arguing that the government HAD properly instructed the grand jury
      regarding the element of "willfulness," they instead argued that (and I'm
      not making this up) "By the end of both defendants' testimony, the grand
      jury was well aware of the concept of willfulness." Yes, they argued that
      because WE explained the element to the grand jury in the few minutes we
      had to talk to them, it was okay that the government FAILED TO for the
      preceding YEAR AND A HALF. (And who is the grand jury more likely to
      believe about the law, the accused or the government?)

      During the hearing the prosecutor said that the government DISAGREES with
      our "interpretation" of willfulness. I find that a little odd, since our
      "interpretation" consisting of DIRECLY QUOTING from Cheek v. U.S., the
      Supreme Court case that the DOJ's own manual confirms is THE governing
      case regarding "willfulness." (I'm dying to see what their
      "interpretation" is.)

      The government's motion all but admitted that misconduct had happened, but
      argued that it wasn't bad enough to justify dismissing the indictment.
      Well duh... how are we supposed to argue against that if we're not allowed
      to SEE the record? And in fact, at the hearing Judge Baylson pretty much
      SAID that (though not in those words). The government seemed to be
      arguing that unless we can quote lots of instances of misconduct from the
      STILL SEALED grand jury transcripts, then our motion to unseal should be
      denied. Judge Baylson nicely pointed out how silly that is.

      In their written response, the government also argued that the fact that
      we were allowed to speak to the grand jury "all but eliminated any danger
      that the grand jury was mislead or improperly influenced," and since we
      spoke to them, the government had difficult seeing "how they could have
      been prejudiced by the alleged prosecutorial misconduct." In other words,
      they can say ANYTHING THEY WANT for a year and a half, as long as we have
      a couple hours to rebutt... what we weren't there to hear them say. Gack.

      Well, to skip to the punchline, it wasn't long before Judge Baylson was
      asking the prosecutors what the problem was with them turning over to us
      their instructions to the jury. That was followed by several long,
      uncomfortable pauses, while the government was trying to come up with
      something. They never did, but they were VERY reluctant to concede the
      point. (Hmmmm.)

      I'll get the transcript at some point, so you can read all the gory
      details. But after a few minutes, the judge said he would review all the
      transcripts "in camera" (meaning by himself, in private) and decide what
      to unseal. We had no objection to that, and said so (twice). But this is
      where it gets interesting: the government DID object to that. For many
      minutes the prosecution was arguing, not just that WE shouldn't be given
      the transcripts, but that the JUDGE shouldn't review them.

      It was almost funny to watch, because they couldn't just come out and say
      "we don't want you looking at them, judge," but that was OBVIOUSLY what
      they meant (and of course Judge Baylson knew it). Even after he said he
      would review ALL of the transcripts, Floyd Miller basically tried to talk
      him out of it, suggesting that he could just review the LAST day of grand
      jury stuff, when the indictment was voted on. But the judge again said he
      would review ALL of the transcripts, and decide whhat would and would not
      be unsealed.

      Those of you who have been following our case are well aware of how the
      government wants everything THEY do to be secret, while we are very public
      about everything we do (and everything the government does to us). So who
      is acting like a criminal? Last Thursday's hearing made an excellent
      example: the government didn't just want the transcripts kept from US;
      they didn't want the JUDGE looking at them either. So you had the accused
      (us) basically saying "sure, Judge, we'd be happy to have YOU decide what
      to unseal," while the government was arguing "Judge, we reallty don't want
      you seeing the transcripts." Golly gee. I wonder why.

      Judge Baylson ordered them to have ALL of the transcripts to him by close
      of business last Friday. I have no idea how long it will take for him to
      go through all of them (there may be many, many pages), but I'm betting
      his eyes will go wide and his jaw will drop more than once. With any
      luck, eventually you will ALL get to see at least some of what the
      government was trying so hard to keep secret.

      Stay tuned for the report on the Motion to Suppress...


      Larken Rose

      Past messages to this list can be found here:

      (P.S. Please pardon any typos in this message. I'm tired, and I didn't
      want to wait to have it proofread before sending it tonight. The report
      is already a week late as it is.)

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