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A FEDERAL/TENNESSEE TRAFFIC CASE APPEAL

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  • BOB GREGORY
    UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE John Davis Lee II, ) ) Defendant, Appellant ) ) 3:00-CR-121 v. ) Trial deNovo ) Jury
    Message 1 of 1 , Jun 10, 2008
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      UNITED STATES DISTRICT COURT

      EASTERN DISTRICT OF TENNESSEE

      AT KNOXVILLE

       

      John Davis Lee II,                                        )

                                                                         )

                Defendant, Appellant                          )

                                                      )        3:00-CR-121

      v.                                             )        Trial deNovo

                                                      )        Jury Trial Demanded

      UNITED STATES                  )        P0508625

                                                )        (VARLAN/SHIRLEY)
      Plaintiff, Appellee                               )

       

       


      APPEAL TO THE DISTRICT COURT

      REGARDING FINAL ORDER

      OF MAGISTRATE BRUCE GUYTON


       

       

      INFORMAL BRIEF OF DEFENDANT-APPELLANT

       

       

      John Davis Lee II, pro se, in forma pauperis

       

       

      February 11, 2008

      1.       Defendant-appellant John Lee is a disabled veteran of United States Air Force, who currently has an appeal on remand to Social Security Administration from U.S. District Court in Knoxville. That case has been pending for 10 years. Any error in this pleading is due to Defendant-appellant 's disability, and thus is excusable mistake.

      2.       This appeal seeks reversal of Magistrate Bruce Guyton's final judgment of P0508625 United States District Court Violation Notice, for offense charged under 36 CFR 4.12.

      Sec.  4.12  Traffic control devices.

      Failure to comply with the directions of a traffic control device is prohibited unless otherwise directed by the superintendent.

       

      3.       This honorable court lacks subject matter jurisdiction over Defendant-appellant in this case. Subject matter jurisdiction is dependent upon breach of "Tennessee Driver License" contract. However, Defendant-appellant was coerced under duress and fraudulent concealment to sign that voluntary contract, under fear of assault or murder by police state death squads if he attempted to travel by any method, without that internal passport. Defendant-appellant signed this contract "T.C.A. 47-1-207" beside his signature.

      Tenn. Code 47-1-207. Performance or acceptance under reservation of rights.

      (1)  A party who, with explicit reservation of rights, performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest” or the like are sufficient.

       

      4.       Tenn. Code 47-1-207 incorporates the Uniform Commercial Code, and allows signatories to sign contracts "under protest", to avoid waiving their rights. State law is controlling in U.S. District Courts (Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)). A photocopy of this contract was not entered into evidence by Plaintiffs, as required by Federal Rules of Evidence, under hearsay exception to testimony by records custodian of business records.

      5.       Defendant-appellant is not a commercial driver for hire. Defendant-appellant does not waive his Constitutionally guaranteed G-d-given Natural right to travel by any mode of personal locomotion. Defendant-appellant objects to the subject matter jurisdiction of this court.

      6.       This honorable court lacks personal jurisdiction over Defendant-appellant in this case. By his special appearance to contest jurisdiction, he does not consent to jurisdiction. Defendant-appellant did not voluntarily sign the "traffic citation" contract to appear in court. Complainant Keith Gad declared that failure to sign that contract would result in Keith Gad signing that contract in place of Defendant-appellant , in order to coerce Defendant-appellant to appear in court. Defendant-appellant signed that contract under duress by police state death squad.

                7.       Under Tennessee Code, no immediate jail is authorized when the defendant signs a "citation in-lieu-of-arrest" . State law is controlling in federal courts (Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938))

                Tennessee Code 40-7-118. Use of citations in lieu of continued custody of an arrested person.

       

                (a)  As used in this section, unless the context otherwise requires:

                (1)  “Citation” means a written order issued by a peace officer requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time. The order shall require the signature of the person to whom it is issued;

                (d)  In issuing a citation, the officer shall:

                (3)  Release the cited person from custody.

       

      8.       Magistrate Bruce Guyton lacked jurisdiction in this case, per Local Rule 72.4 and Rule 58(g) of FRCrimPro. Defendant-appellant never signed the mandatory contract AO Form 86. Defendant-appellant seeks trial de novo with a district judge in this case, and does not consent to remand to a magistrate for new trial, without waiving previous objections to jurisdiction.

      9.       This was abuse of discretion by Magistrate Guyton, which appears to be institutionalized abuse of discretion in all petty offense trials.

      10.     Defendant-appellant seeks injunctive relief to overturn all previous petty offense trials in the Eastern District that failed to have AO Form 86 attached to those files. Defendant-appellant seeks refund of all fines and court costs to all class members, to be identified by audit of business files in possession of the District Court clerk and the out-of-state "Central Violations Bureau" (Corporation? ). Monies can be recovered from the private anonymous corporations that receive all gross profits from all District Courts and the Central Violations Bureau, as confessed by the U.S District Court website.

      11.     The court has concurrent jurisdiction on this counterclaim/ cross-claim under FRCP, since the court of course has concurrent jurisdiction on both criminal and civil actions.

                12.     In his rush to judgment, Magistrate Guyton abused his discretion in denying due process for Defendant-appellant 's motion for discovery of Brady, Jenks and Giglio material, inspection of equipment (relevant and material to the issue of tampering with evidence or destruction of evidence), and inspection of personnel records (relevant and material to the issue of complaints and findings of fact of perjury of witness, etc), required to determine credibility of witness Keith Gad, or was exculpatory to Defendant-appellant (Brady v. Maryland, 373 U.S. 83 at p. 85, 10 L.Ed.2d 215 at 218, 83 S.Ct. 1194 at 1196, (1963)). Such disclosure would not interfere with Mr. Gad's rights under the Drivers Privacy Protection Act, 18 U.S.C. § 2721.

                13.     Mr. Gad made numerous admissions and confessions during his testimony in this case, that impair his credibility, such as his admitted destruction of videotape and audiotape evidence in this case that was exculpatory to Defendant-appellant .

                14.     At no time did Mr. Gad videotape Defendant-appellant committing any alleged crime or alleged breach of contract.

                15.     In fact, Mr. Gad destroyed videotape evidence of Mr. Gad's own numerous crimes or breech of contract in this case. Mr. Gad's admitted crimes include:

      1.               Exceeding the posted speed limit (without mandatory emergency lights and siren turned on as required by exceptions in Tennessee Code);

      2.               Illegal U-turn off roadway (without mandatory emergency lights and siren turned on as required by exceptions in Tennessee Code);

      3.               Illegal passing on a double yellow centerline (without mandatory emergency lights and siren turned on as required by exceptions in Tennessee Code);

      4.               Destruction of evidence and tampering with evidence;

      5.               Perjury;

      6.               Official oppression;

      7.               Abuse of process.

      8.               36 CFR, Sec.  4.3  Authorized emergency vehicles.

      9.               36 CFR, Sec.  4.10  Travel on park roads and designated routes.

      10.           36 CFR, Sec.  4.12  Traffic control devices.

      11.           36 CFR, Sec.  4.21  Speed limits.

      12.           36 CFR, Sec.  4.22  Unsafe operation.

        

                16.     U.S. Attorney General's office and Magistrate Guyton refuse to allow prosecution of Mr. Gad for these state crimes or relevant federal crimes.  United States District Court Violation Notice provides for prosecution onder Tennessee Code, in form box marked "Offense Charged: CFR or USC or State Code". This is abuse of judicial discretion, and possibly obstruction of justice on behalf of Plaintiffs' counsel Robert Simpson. The allegation against Defendant-appellant in this case is allegedly crossing a double yellow centerline, same as witness/complainant Mr. Gad. Equal protection doctrine under the 14th Amendment to the U.S. Constitution requires that if Mr. Gad is not prosecuted for this "crime" and other traffic "crimes", then Mr. Lee cannot be prosecuted for this crime.

                17.     Destruction of this public record was also an attempt to subvert Defendant-appellant 's defense under Due Process guaranteed by the 5th Amendment, and Equal Protection doctrine under the 14th Amendment to the U.S. Constitution.

                18.     Defendant-appellant objects to the Court's use of Rule 58 Federal Rules of Criminal Procedure (FRCrimPro) as a blanket denial of his due process right to trial by jury for any alleged crime, as guaranteed by Article 3, Section 2 of the U.S. Constitution.

                19.     Or, in the alternative, if this case is in fact a civil action for alleged breach of civil driver license contract, perhaps defined as an alleged "commercial crime" in 27 CFR 72.11 or similar code, Defendant-appellant objects to the Court's denial of his due process right to trial by jury in civil matters exceeding $20 in value, as guaranteed by the 7th Amendment to the U.S. Constitution, and allowance of counterclaims under FRCP.

                Tenn. Op. Atty. Gen. No. 81-592

                Office of the Attorney General

                State of Tennessee

                1 Opinion No. 81-592

                November 3, 1981

                RE: Litigation tax

                VICTOR H. ASHE

                State Senator

                KNOXVILLE, TN.

                QUESTION

                Is T.C.A. § 67-4102 Item J, in imposing a $5.25 litigation tax on parking tickets, constitutional?

      OPINION

                It is the opinion of this Office that T.C.A. § 67-4102 Item J is in compliance with both the State and federal Constitutions.

                ANALYSIS

                The 1981 General Assembly, through Public Chapter 488 [T.C.A. § 67-4102 Item J], enacted a major revision of the litigation taxes. That statute levies a $5.25 tax in all civil suits and in all criminal cases instituted in any city court. Because parking tickets and other minor traffic violations are technically civil in nature, they are subject to this litigation tax. Subsection b(D) of Item J provides that, in actions brought by the government, the litigation tax is to be collected "[u]pon judgment against the defendant in any original civil action,... from the defendant... ." The upshot of that provision is that a parking ticket may be resolved by payment of the nominal fine, but if a defendant contests the ticket in court and loses he then is liable for the $5.25 litigation tax in addition to the fine. Your letter requests examination of this provision in light of constitutional protections.

                The litigation tax does appear burdensome when attached to the contest of a minor traffic violation, since the tax may exceed the fine several times over.

       

                20.     In Tennessee, speeding tickets and red-light traffic tickets are sued as civil actions in municipal and state courts, when initiated by Redflex Corporation, the Australian military contractor that owns and operates robotic traffic cameras, and keeps 90% to 100% of the gross profit from those "traffic tickets". Redflex, City of Knoxville Municipal Corporation, et al. (and many other cities) are currently sued in federal class actions for civil conspiracy and other civil actions (Williams v. Redflex, U.S. District Court, Eastern District in Knoxville, Case No.: 3:06-cv-400), and are currently under federal criminal investigation for mail fraud and extortion in Lousiana.

                21.     Defendant seeks injunctive relief to overturn Rule 58, as void for vagueness and a violation of Constitutional due process. It is impossible for defendants to know the maximum possible sentence under this definition:

                Rule 58. (3) Definition.

       

                "[T]he term 'petty offense for which no sentence of imprisonment will be imposed' means a petty offense for which the court determines that, in the event of conviction, no sentence of imprisonment will be imposed."

               

                22.     This definition in Rule 58 implies that "petty offenses" are "infractions" , as defined 18 USC § 3559 (a)(9), "if no imprisonment is authorized, as an infraction".

                23.     However, in Plaintiffs' response to Defendant's motion for review of Brady material, Plaintiffs' counsel Robert Simpson describes this alleged "petty offense" violation of 36 CFR 4.12, "Failure to comply with traffic control device", as a Class B misdemeanor, subject to imprisonment not to exceed six months or a fine not to exceed $5,000 as provided by Title 36, CFR, Section 1.3(a) and Title 18 USC, Section 3571(a)(b)(6) ."

                24.     However, Tennessee Code defines all similar traffic violations as Class C misdemeanors, with a maximum sentence of 30 days in jail and a maximum fine of $50.

                Tennessee Rules of Criminal Procedure

                Rule 23. TRIAL BY JURY

                (a) Trial by Jury. In all criminal cases except small offenses, trial shall be by jury unless the defendant waives a jury trial in writing with the approval of the court and the consent of the district attorney general. The defendant may waive jury trial at any time before the jury is sworn.

       

                Tennessee Constitution

                Article I

                Section 6. That the right of trial by jury shall remain inviolate.

                Section 9. That in all criminal prosecutions, the accused hath the right to... a speedy public trial, by an impartial jury of the county in which the crime shall have been committed,

       

                Article VI.

       

                Section 14. No fine shall be laid on any citizen of this state that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars.

       

                  25.       Defendant-appellant does not voluntarily waive his right to trial by jury, thus no confinement of the accused may be imposed, according to the Tennessee Constitution.

                26.     Tennessee defines "small offense" as the equivalent of an "infraction" under U.S Code, but not as a "petty offense" under U.S. Code.

                27.     All Class C misdemeanor traffic "crimes" are defined as "small offenses" in Tennessee, triable by magistrate without a jury.

                Tennessee Rules of Criminal Procedure, Annotated

       

                Rule 5, Advisory Commission Comments:

       

                Small offenses are those which carry a maximum fine of fifty dollars and for which no imprisonment may be inflicted. TCA 40-408 [now repealed].

       

                28.     Tennessee Code is controlling on so-called federal property located within the State of Tennessee. State law is controlling in U.S. District Courts (Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)).

                TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY

      CHAPTER I--NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR

                PART 4_VEHICLES AND TRAFFIC SAFETY--Table of Contents

      Sec.  4.2  State law applicable.

                (a) Unless specifically addressed by regulations in this chapter, traffic and the use of vehicles within a park area are governed by State law. State law that is now or may later be in effect is adopted and made a part of the regulations in this part.

                (b) Violating a provision of State law is prohibited.

       

                Tennessee Code 11-18-102. Jurisdiction retained by state — Purpose.

                As to all lands acquired by the United States within this state for the purposes mentioned in § 11-18-101 or similar purposes, the state does not, by granting this consent, surrender or cede its legislative, executive and judicial jurisdiction over the same, but grants to the congress of the United States the right to enact such laws and make such rules and regulations as may be necessary to protect its title to and possession of such lands as may be acquired by it for such purposes, it being the intent of this section to establish a uniform consent and cession as to all lands owned or acquired by the United States within this state for the above mentioned and all other federal purposes, except those enumerated in the Constitution of the United States, article 1, § 8, to-wit: lands for the erection of forts, magazines, arsenals, dockyards and other needful buildings.

       

                Tennessee Code 11-18-103. Civil and criminal jurisdiction retained — Privileges as citizens retained by inhabitants.

                The jurisdiction of the state of Tennessee, both civil and criminal, over persons upon the lands acquired for the purposes named in § 11-18-101, or similar purposes, shall not be affected or changed by their permanent acquisition and administration by the United States for such purposes, except so far as the punishment of offenses against the United States is concerned, the intent and meaning of this section being that the state of Tennessee shall not, by reasons of such acquisition and administration, lose its jurisdiction nor the inhabitants thereof their rights and privileges as citizens or be absolved from their duties as citizens of the state.

       

                29.     Defendant-appellant seeks injunctive relief to strike 36 CFR 4.12 and Title 18 USC, Section 3571(a)(b)(6) , as they relate to alleged "traffic violations" (i.e., safe traveling), for conflict with Tennessee Constitution and Tennessee Code, and for violation of the 8th Amendment to the Constitution: "Cruel and Unusual Punishment - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." A $5,000 fine and six months in prison is cruel and unusual punishment for driving safely without injury to anyone.

                30.     Defendant-appellant objects to the classification of normal safe driving as an alleged "crime", without causing a crash, nor interfering with other travelers, nor causing financial damages, and without a "victim".

                31.     The 4th Amendment to the Constitution guarantees the right to travel without molestation from police state death squads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Defendant-appellant objects to his unreasonable arrest by police state death squad, while traveling safely on a public highway. Defendant did not stop voluntarily for Mr. Gad, but did so out of reasonable fear of being murdered. Defendant has information and belief, and seeks judicial notice of this fact in possession of Plaintiffs, that approximately 500 U.S. citizens and residents are murdered by summary execution every year during "routine traffic stops", for failure to stop, including murder of 1/3rd innocent bystanders. In the case of motorcycle riders who fail to stop, U.S. Supreme Court has opined that it is lawful for police state death squads to murder motorcycle riders who are stopped in the road, by running over them with police cars (Sacramento v. Lewis, 523 U.S. 833 (1998)). However, in Tennessee v. Garner, 471 U.S. 1 (1985), the Court opined that it is not reasonable for police state death squads to perform summary executions of "fleeing felons" ("felon" is apparently defined by U.S. Code as "any person who does not wish to pay a $50 traffic ticket").

                32.     The 8th Amendment to the Constitution guarantees the right to travel, by prohibiting "Cruel and Unusual Punishment - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Defendant-appellant objects to a maximum penalty of six months in prison and $5,000 fine for traveling safely on a public highway.

                33.     The 10th Amendment to the Constitution guarantees the right to travel, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Defendant-appellant objects to denial of his right to travel safely on a public highway.

                34.     Plaintiffs failed to cite the relevant Tennessee Code in the prosecution of this case, which is controlling of CFR and U.S. Code. Federal Rules of Evidence do not allow judicial notice of state law without entering that document as an exhibit. Thus Plaintiffs' action must be dismissed for failure to prosecute.

                35.     Plaintiffs failed to enter evidence that Mr. Gad is a "law enforcement officer", who is allowed to issue citations in-lieu-of-arrest. In order to enforce Tennessee Code in Blount County, Tennessee, Mr. Gad must be deputized by the sheriff of Blount County, or face prosecution for impersonation of a law enforcement officer. No such evidence was entered by Plaintiffs. "Citizen's arrests" by private persons do not allow for citations in-lieu-of-arrest, which may only be served by proper "law enforcement officers". Thus Plaintiffs' action must be dismissed for failure to prosecute.

                36.     Defendant-appellant seeks judicial notice of the fact that Plaintiffs have unlawfully converted a public highway into a private toll road, for the exclusive profit of anonymous private corporations, according to the official U.S District Court website, "Central Violations Bureau" webpage. According to that webpage, Central Violations Bureau distributes 100% of all court revenues from misdemeanor citations to anonymous corporations. This admission in ordinary business records is in the possession of Plaintiffs and the Court, and is also admissible under hearsay exception in Federal Rules of Evidence. Defendant-appellant objects to this unconstitutional abuse of process under color of law, since taxes may only be taken for public purposes. Defendant-appellant seeks injunctive relief to end that policy, nationwide.

                The Third Branch, Vol. 35, Number 8—August 2003

                Central Violations Bureau Helps Collect Millions Each Year for Crime Victims

                "There are 400,000 to 500,000 violations a year. They generate from $16 million to $18 million in revenue," said Ted Willmann, chief of the Central Violations Bureau (CVB), a little-known entity within the federal Judiciary. The officer who issues the ticket writes it up in triplicate, keeping one copy. Another is mailed to the CVB in San Antonio, Texas; a third is given to the violator in the form of an envelope ready for mailing. About two-thirds of those cited for violations opt for forfeiture of collateral—paying without requesting a court date. They mail a check or money order, usually made out to the CVB or a clerk of court, to Atlanta, where the Bank of America serves as a lock-box facility. "The payments are then deposited into the Treasury and get transferred into the Crime Victims Fund maintained by the Justice Department," Willmann said. "None of the money stays in the Judiciary. It is distributed by Congress to battered women's shelters, places for abused children, or victims' advocacy groups."

      http://www.uscourts .gov/ttb/ aug03ttb/ violations/

       

                37.     All previous oral and written arguments are hereby incorporated into this informal brief.

                38.     Defendant seeks an Order for dismissal with prejudice of this case, or trial by jury, de novo, in District Court.

                Respectfully submitted,

       

                ____________ _________ _

                John Davis Lee II, pro se

       

       

       

      CERTIFICATE OF SERVICE

       

      I hereby certify that a true and accurate copy of the foregoing was forwarded by U.S. mail, postage prepaid, to Robert Simpson, U.S. Attorney Office, 800 Main Street, Knoxville, Tennessee, 37902.

      on this 11 day of Feb, 2008.

       

       

      ____________ _________ _

      John Davis Lee II, pro se

       

      Knoxville, Tennessee

       


      US v Lee, defendant's letter for informal discovery

      US v Lee, Arraignment hearing transcript, August 8, 2007

      US v Lee, defendant's Brady motion for discovery

      US v Lee, plaintiff response to defendant's Brady motion for discovery

      US v Lee, pretrial hearing and trial transcript

      US v Lee, defendant's appeal brief

      US v Lee, defendant's reply brief

      US v Lee, plaintiff's reply brief with defendant's response brief
      Exhibit: Tennessee Constitution
      Exhibit: Local Rule 72.4 East TN District 2007
      Exhibit: Advisory Committee Change to Rule 58 1996

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