SUPERIOR COURT OF
NEW
APPELLATE DIVISION
DOCKET
NO. A-368-01T4
CRIMINAL
ACTION
STATE OF NEW
Plaintiff-Respondent, FINAL JUDGMENT OF CONVICTION
v. SUPERIOR COURT, LAW
DIVISION
EDWARD R.
FORCHION,
Defendant-Appellant.
SAT BELOW
Hon. Stephen W.
Thompson, J.S.C.
(Partial Jury Trial,
Plea & Sentencing)
Hon. Thomas A. Brown,
Jr., J.S.C.
(Suppression Motion)
Hon. Ronald J. Freeman,
J.S.C.
(Pretrial Motions)
Hon. Linda G. Baxter
(Rosenzweig), J.S.C.
(Pretrial Motions)
________________________________________
AMENDED PRO SE SUPPLEMENTAL BRIEF
AND APPENDIX ON BEHALF OF DEFENDANT-
APPELLANT EDWARD R. FORCHION
________________________________________
YVONNE SMITH
SEGARS
Public Defender
Office of the Public Defender
(973) 877-1200
Edward R. Forchion, Pro
Se THE DEFENDANT IS NOT
CONFINED
On the
Supplemental Brief
TABLE OF
CONTENTS
Page No.
TABLE OF AUTHORITIES
........................................
v
PRELIMINARY STATEMENT
.......................................
1
SUPPLEMENTAL PROCEDURAL
HISTORY ............................. 4
SUPPLEMENTAL STATEMENT OF
FACTS ............................. 5
I - The facts concerning the search and seizure
of the package
.................................. 5
II –
The facts concerning the defendant’s attempts
to present legitimate and
substantial defenses
and the denial by the Office of the
Public
Defender (“OPD”) of defendant’s
Sixth and
Fourteenth Amendment rights
..................... 9
III - The facts concerning the bribe of ISP and
“early
release” made by the Prosecutor’s Office
and
OPD to coerce the defendant to plead
guilty ...... 15
IV - The facts concerning the failure and refusal
of
the OPD to file the Notice of Appeal and
to
Order the transcripts for appeal for
many months
until the defendant was forced to file
suit ...... 16
V - The facts concerning the defendant’s
re-arrests
and re-incarcerations by the ISP
officials, found
by Judge Irenas to have probably
violated his First Amendment
Rights ................................
18
LEGAL ARGUMENT:
POINT I
* THE CONVICTIONS SHOULD BE
REVERSED AND THE INDICTMENT DISMISSED UNDER BRADY/GIGLIO AND THE
FOURTEENTH AMENDMENT SINCE A) THE DEA SEIZED THE PACKAGE IN ARIZONA ILLEGALLY
AND HANDED IT TO ARIZONA STATE AUTHORITIES ON A “SILVER PLATTER;” B) THE NEW
JERSEY AUTHORITIES CONCEALED THE DEA’S INVOLVEMENT FOR NEARLY THREE YEARS; C)
THE STATE HAS NEVER PRODUCED A POLICE REPORT FROM DEA
AGENT GLICK
(NOT RAISED BELOW)* ......................... 19
____________________________________
* This issue was not raised below since defendant was deprived
of effective pretrial and trial counsel.
i
*
POINT II
THE INDICTMENT SHOULD BE
DISMISSED WITH
PREJUDICE SINCE THE GRAND JURY WAS NEVER
ADVISED AS TO THE “
AS TO THE DEA’S INVOLVEMENT; DEFENDANT’S
FIFTH AMENDMENT AND DUE PROCESS RIGHTS
WERE VIOLATED
(NOT RAISED BELOW) ........................ 24
POINT III
JUDGE BROWN
ERRED AT THE SUPPRESSION HEARING
IN PERMITTING
THE “
ADMITTED AT
THE SUPPRESSION HEARING WITHOUT
REQUIRING THE
WITNESS TO TESTIFY AND ERRED
IN PERMITTING
THE PROSECUTOR TO “TESTIFY”
AS TO THE
EVENTS IN
SIXTH
AMENDMENT CONFRONTATION AND FOUR-
TEENTH
AMENDMENT DUE PROCESS RIGHTS WERE
VIOLATED
MANDATING A REVERSAL ........................... 24
* POINT
IV
THE DEFENDANT
WAS ENTRAPPED BOTH AS A
MATTER OF LAW
AND UNDER DUE PROCESS
ENTRAPMENT,
MANDATING DISMISSAL OF
THE INDICTMENT
WITH PREJUDCE (NOT RAISED BELOW) ......... 25
* POINT
V
THE INDICTMENT SHOULD BE
DISMISSED WITH
PREJUDICE AS IT IS THE RESULT OF SELECTIVE
PROSECUTION IN VIOLATION OF
THE EQUAL PRO-
TECTION CLAUSE OF THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
(NOT RAISED
BELOW) ...................................... 29
POINT VI
JUDGE BROWN
ERRED IN DENYING THE DEFENDANT’S
PRO SE MOTION TO RAISE THE DEFENSE OF JURY
NULLIFICATION
IN VIOLATION OF HIS SIXTH AND
FOURTEENTH
AMENDMENT DUE PROCESS RIGHTS ................
33
_________________________________________
* This issue was not raised below since defendant was deprived of
effective pretrial and trial counsel.
ii
POINT VII
N.J.S.A. 2C:35-5a(1) AND b.10(a) ARE
UNCONSTITUTIONAL
AS THEY VIOLATE THE
FIRST
AMENDMENT CLAUSE, THE FOURTEENTH
AMENDMENT
EQUAL PROTECTION CLAUSE, AND
ARTICLE 1,
PARAGRAPH 4 OF THE NEW
CONSTITUTION
SINCE PEYOTE IS A RECOGNIZED
RELIGIOUS
EXEMPTION (PARTIALLY RAISED BELOW) ...........
39
* POINT VIII
THE MARIJUANA
STATUTES ARE UNCONSTITUTIONAL
DUE TO
VAGUENESS, INDEFINITENESS AND OVER-
BREADTH; THEY
ALSO VIOLATE THE UNITED STATES
CONSTITUTION’S
PROHIBITION AGAINST BILL OF
ATTAINDERS
(NOT RAISED BELOW) ..........................
46
POINT IX
DEFENDANT WAS
DENIED EFFECTIVE ASSISTANCE OF
TRIAL/STAND-BY
COUNSEL AS GUARANTEED BY THE SIXTH
AMENDMENT AND
BY ARTICLE I, PARAGRAPH 10 OF THE
NEW
FOURTEENTH
AMENDMENT EQUAL PROTECTION RIGHTS BY THE
OFFICE OF THE
PUBLIC DEFENDANT, HIS FIRST APPOINTED
TRIAL
ATTORNEY, AND BY HIS STAND-BY ATTORNEY ........... 56
POINT X
THE
DEFENDANT’S PLEA WAS COERCED AND THE RESULT
OF FALSE
BRIBERY BY THE STATE; JUDGE THOMPSON
ERRED IN
DENYING THE DEFENDANT’S MOTION TO
WITHDRAW THE
PLEA ......................................
61
POINT XI
JUDGE BROWN
ERRED IN NOT REQUIRING JAIME KAIGH,
ESQ. TO
PARTICIPATE IN THE RECONSTRUCTION
HEARING
................................................ 62
_________________________________________
* This issue was not raised below since defendant was deprived
of effective pretrial and trial counsel.
iii
* POINT XII
THE
CONVICTIONS SHOULD BE REVERSED AND THE
INDICTMENT
DISMISSED SINCE THE CATEGORIZATION
OF MARIJUANA
AS A SCHEDULE I DRUG IS UNCONSTITUTIONAL
AND VIOLATES
DUE PROCESS AND EQUAL PROTECTION
(NOT RAISED
BELOW) ....................................
63
CONCLUSION ................................................. 65
SUPPLEMENTAL APPENDIX:
Amended Order to Show Cause
Why Plaintiff Should Not Be
Returned to the Intensive
Supervision Program (filed
Order Granting Plaintiff’s
Motion for a Preliminary
Injunction (filed
Opinion (Robert Edward
Forchion v. Tom Bartlett, et al.;
filed
Unpublished Opinion (State
v. Hilkevich, App. Div.
Docket No. 3632-00T3, decided
Order Denying Motion to
Supplement (filed November
6, 2003)
............................................... Dsa 37
________________________________________
* This issue was not raised below since defendant was deprived
of effective pretrial and trial counsel.
iv
TABLE OF
AUTHORITIES
Page Nos.
CASES CITED
Bordenkitcher v. Hayes, 434
54 L.Ed.2d 604 (1978)
..................................... 31
Brady v.
City of
2d 624, 17 S.Ct. 2157 (1997) .............................. 44
City of
(App. Div. 2000)
..........................................
54
Delguidice v. New Jersey
Racing Com’n., 100 N.J. 79
(1983)
.................................................... 27
Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437,
4 L.Ed.2d 1669 (1960)
................................... 20,21
Ellwest Stero Theater v.
Boner, 718 F.Supp. 1553
(M.D.
Employment Division v. Smith, 494
1595, 108 L.Ed.2d 876 (1990)
.............................. 43
Forchion v. Intensive
Supervise Parole, 240 F.Supp.2d 302
(D.N.J. 2003)
..................................... 1,2,4,19,53
Giglio v.
Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338,
47 L.Ed.2d 603 (1976)
.................................... 23
Griswold v.
Luckei v. State of
N.M. 274 (N.M. 1995)
......................................
40
Mapp v.
1081 (1961)
...............................................
21
Marbury v. Madison, 5
McCleskey v. Kemp, 481
Mempa v. Ray, 389
v
Miranda v.
L.Ed.2d 694 (1966) ........................................ 40
Nigro v.
Norton v. Shelby County, 118 U.S. 425 ........................ 40
Olsen v. Drug Enforcement
Admin., 878 F.2d 1458
(D.C.Cir. 1989) ............................................
41
Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149,
82 L.Ed.288 (1937)
......................................... 24
People of
2002)
................................................. 44,45
Reid v. Covert, 354
Snowden v. Hughes, 321
497 (1944)
................................................. 32
State v. Casimono, 298 N.J. Super. 22 (App. Div.
1997), certif. denied, 154 N.J.
609 (1998) ................. 62
State v. Florez, 134 N.J. 570 (1994) ........................ 28
State v. Fogerty, 128 N.J. 59 (1992) ........................ 27
State v. Fritz, 105 N.J. 42 (1987) .......................... 61
State v. Gibbons, 105 N.J. 67 (1987) ......................... 27
State v. Johnson, 127 N.J. 458 (1992) ........................ 28
State v. Hilkevich (unpublished App. Div. opinion, App.
Div. Docket No. A-3632-00T3, decided
State v.
State v.
certif. denied, 102 N.J.
298 (1985) ........................ 27
State v. Profaci, 56 N.J. 346 (1970) ........................ 46
State v. Ragland, 105 N.J. 189 (1986) ................. 33,35,36
State v. Rockholt, 96 N.J. 570 (1984) ........................ 27
State v. Rue, 175 N.J. 1 (2002) .............................. 60
State v. Talbot, 71 N.J. 160 (1976) .......................... 28
vi
Steele v. Blackmun, 236 F.3d 130 (3d Cir. 2001) .............. 42
Strickland v. Washington, 466
80 L.Ed.2d 674, reh. den., 467
denied, 464
311 (1983)
................................................ 23
United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996),
cert. denied, 519
117 S.Ct. 992 (1997)
................................... 42,43
United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974) ...... 30
`
1982) ..................................................... 23
rev’d on other grounds, 546 F.2d 238
(8th Cir. 1976) ....... 31
United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039,
80 L.Ed.2d 657 (1984) ..................................... 61
1972)
...................................................... 31
1993)
.................................................. 10,34
1972)
.................................................... 34
United States v. Falk, 479 F.2d 616 (9th Cir. 1973) .......... 31
1973)
................................................... 31,32
United States v. Moynihan, 417 F.2d 1002 (1969) ............. 34
United States v. North, 910 F.2d 843 (D.C. Cir. 1990) ....... 36
United States v. Quarles, 350 U.S. 11, 76 S.Ct. 1,
100 L.Ed. 8 (1955)
......................................... 36
vii
cert. denied, 426
1191 (1976)
................................................ 31
1998)
..................................................... 61
United States v. Steele, 461 F.2d 1148 (9th Cir. 1972) ....... 31
1992)
..................................................... 21
United States v. Torquato, 602 F.2d 564 (3d Cir. 1979),
cert. denied, 100 S.Ct.
295, 444
L.Ed.2d 307 (1979)
......................................... 31
Walz v. Tax Comm’n, 397 U.S. 664, 90 S.Ct. 1409, 25
L.Ed.2d 697 (1970)
........................................
41
Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1542,
84 L.Ed.2d 547 (1985)
...................................... 30
West Virginia State Board of
Education v. Barnette,
319 U.S. 624 (1942)
........................................ 48
Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26
L.Ed.2d 446 (1976)
......................................... 35
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770,
20 L.Ed.2d 776 (1968)
...................................... 35
Yick Wo v. Hopkins, 118
L.Ed. 220 (1886)
........................................... 30
STATUTES
CITED
42 U.S.C. § 1983 ........................................... 4,17
42 U.S.C. § 2000bb(a)
.......................................
43
42 U.S.C. § 2000(e)
.........................................
51
N.J.S. 2C:2-12 ............................................ 23,26
N.J.S. 2C:35-5a(1) ............................... 38,43,45,47,51
viii
N.J.S. 2C:35b.10(a) .............................. 38,43,45,47,51
N.J.S. 24:21-2 ............................................... 63
N.J.S. 24:21-3 ............................................... 63
N.J.S. 24:21-5 ............................................... 63
N.J.S. 24:21-5d(11) .......................................... 63
N.J.S. 24:21-5d(15) .......................................... 63
N.J.S. 24:21-5d(16) .......................................... 63
N.J.S. 24:21-5d(17) .......................................... 63
N.J.S. 24:21-5e(1) ........................................... 63
N.J.S. 24:21-5e(9) ........................................... 63
N.J.S. 24:21-5e(11) .......................................... 63
N.J.S. 24:21-5e(12) .......................................... 63
COURT RULES
CITED
R. 2:6-2(a)(6) ................................................ 1
R.
CONSTITUTIONAL
PROVISIONS CITED
N.J. Const. (1947) Art. I, Par. 4 ......................... 38,41
N.J. Const. (1947) Art. I, Par. 3 ........................... 39
N.J. Const. (1947) Art. I, Par. 6 ............................ 34
N.J. Const. (1947) Art. I, Par. 10 ........................... 56
U.S. Const. Amend. IV ..................................... 19,20
U.S. Const. Amend. V ................................... 24,29,56
U.S. Const. Amend. XIV .............................. 19,20,29,56
Ix
PRELIMINARY STATEMENT (R. 2:6-2(a)(6))
Due to the
conspiracy between the Office of the Public Defender (“OPD”) and Camden County
Prosecutor’s Office (“Prosecutor’s Office”) to deprive the defendant of his
federal and state constitutional due process right to a fair trial, it is
difficult for the defendant to properly raise the many genuine and substantial
issues in this appeal. While defendant’s
allegations of a “criminal conspiracy” by state officials to prevent a fair
trial might appear as something out of the mind of Oliver Stone, a review of
the repetitive denials of fundamental constitutional rights would raise the
eyebrows of even Mr. Stone.
First and foremost, since the filing of counsel’s
brief in January of 2003, on
1
intentions.
Irenas also found that granting the preliminary
injunction was in the public interest.
Judge Irenas’s decision fully supports defendant’s
conspiracy argument that the State ISP officials conspired with each other to
violate his First Amendment rights.
Defendant appeared before four different State judges below—Judges
Thompson, Brown, Freeman, and Baxter.
Interestingly, the first federal judge to review this case found such
constitutional infirmities as to order the State to release the defendant from
jail and back into the ISP, and to continue to watch over the case--even before
the State ISP judges had made their decision!
Another incident since the filing of defense counsel’s
brief bears mention. Obviously, the
conspiracy by the State of
2
As revealed in defense counsel’s brief and this pro
se supplement, many substantial pretrial and trial issues were
eviscerated by the OPD,
Amazingly, the State of
Defendant prays that this Court will now provide him
with the justice that has eluded him for so many years.
3
SUPPLEMENTAL PROCEDURAL HISTORY**
At the time
the defendant’s brief was completed on
On January
24, 2003, Judge Irenas granted defendant’s motion for a preliminary injunction
reinstating him to the ISP. Forchion,
supra, 240 F.Supp.2d at 311.
The State was also prohibited from removing the defendant from ISP for
any future violations unless they first gave the defendant forty-eight hours
notice of their intentions. (
There is no question that the conduct which led to the alleged
retaliation was constitutionally protected.
Most of the infractions cited by the ISP officers involved the Plaintiff
either speaking to the press, protesting and handing out pamphlets outside of
the courthouse, running a website, or producing and appearing in television
commercials. This behavior is clearly
protected by the First Amendment, particularly since it primarily involved the
Plaintiff’s belief that marijuana should be legalized. Such speech involves a public issue and is
explicitly the type of speech that the First Amendment is designed to protect.
___________________________________
* “Dsa”
denotes defendant’s supplemental appendix.
** On
4
Judge
Irenas also found that granting the preliminary injunction is in the public
interest:
The First Amendment exists so as to promote debate on issues of public
importance. In this case, the advocacy
of the legalization of marijuana is a legitimate political position in this
country. The Libertarian Party, whose
presidential candidate received over 380,000 votes in the 2000 election,
advocates the legalization of drugs. Libertarian Party website at http://www.lp.org/issues/relegalize.html and http://www.lp.org/campaigns/pres/. Many elected public officials have called for
a liberalization of the nation’s drug laws.
Simply put, Plaintiff’s place in this debate will do nothing to harm a public
that is already itself debating the current state of our nation’s drug laws.
Judge Irenas’s finding that defendant’s
constitutionally protected rights were violated by ISP officials is supportive
(and a continuation of), the State’s systematic, bad-faith denial of his
constitutional rights (see Point I of counsel’s brief).
SUPPLEMENTAL STATEMENT OF FACTS
I
THE FACTS
CONCERNING THE SEARCH
AND SEIZURE
OF THE PACKAGE AND
SUPPRESSION
OF THE ARIZONA REPORTS
Edward R. Forchion was employed as a cost-to-coast
truck driver since being honorably discharged from the United States Army in
1990. In 1994, the defendant became
involved in a grassroots movement in the State of
5
the defendant became known to the
On November
21, 1997, DEA agent Dan Gluck seized a package of marijuana without a warrant
at Phoenix International Airport. DEA agent Gluck also may have opened the
package without a warrant prior to handing the package on a “silver platter” to
Phoenix police officer Kathy Galbari.
Galbari then took over the case with a claim that an unnamed Federal Express
employee had opened the package. DEA
agent Gluck never submitted a report, nor was ever presented for defense
questioning.
On November 21, 1997, Galbari contacted Bellmawr, New
Jersey, police detective Dan Moody and made
arrangements to ship
the package to
On November 22, 1997, Detective Dan Moody went to the
Commonwealth of Pennsylvania (without any authorization by way of legal warrant
or order) where Detective Moody, who has no police powers, signed for and
seized a package shipped to him from Galbari.
On that same day, Detective Moody and Camden County Investigator
Jerome Kee signed a false affidavit claiming that the package had not been
opened, when, in fact, the package had been seized and opened in Arizona
(possibly by the DEA), and was then forwarded to Detective Moody via Galbari.
6
On
Upon a review of the search warrant, the defendant
noticed that the warrant itself described the contents within the
package--i.e., a “cooler.” Defendant,
based upon his vast experience as a truck driver, immediately realized that it
would be impossible to know the true contents of the package without first
having opened it. This assumption was
correct and the police lied by omission when they failed to state in the
affidavit that the package had, in fact, been opened in
On
On
7
opened in
On
On
On
8
On
Also, the OPD refused to provide “ancillary services”
(such as investigation) to determine the true identity of the individual who
the State now admits opened the package in
II
THE FACTS
CONCERNING THE DEFENDANT’S ATTEMPTS
TO PRESENT
LEGITIMATE AND SUBSTANTIAL
FENSES AND
THE DENIAL BY THE OFFICE OF
THE PUBLIC DEFENDER (“OPD”) OF DEFENDANT’S
SIXTH AND
FOURTEENTH AMENDMENT RIGHTS
The defendant, who was indigent at the time of trial,
was represented by the OPD. The
defendant wished to present numerous
9
substantial and legitimate defenses, including the
defense of jury nullification--a defense designed to encourage the jury to
serve as the conscience of the community and to use their power as such to
render a verdict reflective of that power as in United States v. Datcher,
830 F.Supp. 411 (M.D. Tenn. 1993). (See Point IV of counsel’s
brief).
On
On February 9, 1998, Mr. Walshe had the defendant meet
his boss, the Deputy Friedman. Upon
hearing the defendant’s planned defenses, Deputy Friedman (in violation of the
Public Defender Act) refused to provide defendant assistance, and ordered that his
underlings not provide the legal assistance defendant requested. Deputy Friedman said that the defendant, “...
had an agenda and he wasn’t going to allow [the defendant] to use his
10
office to further that agenda.”* The only thing that
the OPD was interested in doing was having the defendant plead guilty. The OPD refused to provide the defendant with
his Sixth Amendment right to effective assistance of counsel because the
defendant was an open advocate for the legalization of marijuana. Interestingly, the OPD had (and has) no
qualms about challenging the constitutionality of “Megan’s Law”—-protecting the
rights of convicted sexual perverts but not “potheads.”
The defendant was indicted in October, 1998. On
On May 20, Deputy Friedman wrote a letter to Judge
Freeman stating the OPD will not provide the “assistance of counsel” the
defendant wished to employ in defense of these charges:
I know I had a conversation
with Mr. Forchion in which he indicated a desire to pursue motions and tactics
which I clearly indicated no attorney from my office would file or
* Defendant is
as proud of his agenda to ruin the marijuana laws as Frederick Douglas and John
Brown were of their agenda to destroy slavery, or Martin Luther King, Jr. and
Rosa Parks were to eliminate segregation.
11
pursue. Perhaps Mr. Forchion desires to represent
himself pro se ... (Da 46).
On
On November 13, 1999, the Honorable Thomas A. Brown,
Jr., J.S.C., assigned Jaime Kaigh, Esq., to provide assistance to defendant’s
defense as stand-by counsel.
On
On May 26, 2000, Judge Brown permitted the defendant
to
12
represent himself because his assigned counsel (Mr.
Kaigh) still refused to provide the 6th Amendment mandated
“assistance of counsel for his defense” in regards to the planned use of jury
nullification as a defense. Mr. Kaigh
was ordered to provide “assistance as standby counsel.”
On
In any event, this employee is claimed to be an
independent source but is never named nor presented to the defense for
questioning. The defendant was denied
any opportunity to cross-examine this claim or to verify any of the newly
claimed facts. This is a violation of
the right to confrontation as the OPD refused to provide “ancillary services”
(such as investigative services) to determine the true identity of the
individual who the State admitted opened the package in Arizona. Defendant was deprived of effective
assistance of the OPD because he had an “agenda”—-Deputy Friedman told
defendant to contact NORML (National Organization to Reform Marijuana Laws).
On August 10, 2000, Judge Brown denied the motion to
suppress. On that same date, Mr. Kaigh
failed to appear at a pretrial hearing denying the defendant of his right to
13
“assistance of counsel at all stages of his
defense.” The prejudice to defendant as
a result of Mr. Kaigh’s failure to appear at this hearing cannot be
overstated. Had Mr. Kaigh appeared, the
defendant would have instructed him on the record
to file an interlocutory appeal of the suppression
denial. Due
to the OPD’s actions (along with Mr. Kaigh’s
inactions—-i.e.,
failure to appear in court), the defendant was denied
the assistance of any counsel during these critical stages--when an
interlocutory appeal on the suppression motion denial should have been filed by
any competent counsel. Instead, nothing
was filed.
By motion dated August 24, 2000, Mr. Kaigh moved to be
relieved as defendant’s counsel, citing “irreconcilable” “differences.” (Da 174
to 177). Accordingly, the defendant was
effectively without counsel after the
On August 2, 2000, the defendant held a public
demonstration at the Liberty Bell in Philadelphia and he passed out fliers
announcing a similar “Jury Rights Day” protest to be held on September 5, 2000,
outside of the Camden County Courthouse.
On September 1, 2000, the defendant was arrested on a
bogus domestic violence charge stemming from his ex-wife coming to his house on
July 20, 2000. The charge was later to
be dismissed.
14
Defendant was also charged in
The Camden County OPD and Prosecutor’s Office were
once again allies in denying defendant his day in court-—the Prosecutor’s
Office and law enforcement incarcerating the defendant on a bogus charge to
prevent him from enlightening the jury pool, and the OPD refusing to provide
legal defenses. On September 18, 2000,
the defendant moved to have Mr. Kaigh removed as his legal advisor. (Da 184 to
186).
On September 18, 2000, trial began, and Mr. Kaigh did
not even appear in court. This is yet
another blatant denial of the defendant’s right to assistance of counsel. Judge Thompson hammered the final nails in
defendant’s legal coffin when he denied a motion for a trial continuance or
leave to file an interlocutory appeal of the suppression motion.
III
THE FACTS
CONCERNING THE BRIBE OF ISP
AND EARLY
RELEASE MADE BY THE PROSE-
CUTOR’S
OFFICE AND OPD TO COERCE THE
DEFENDANT
TO PLEAD GUILTY
On
15
defendant’s will and he was effectively “bribed” by
the State to plead guilty with the false promise of an early ISP release. The defendant was led to believe that he
would be released into the ISP program in 3 to 6 months as his co-defendants
had been (Eric Poole was released in 64 days and Russell Forchion in 4 months).
In addition, the defendant was given only minutes to decide the plea
offer. He was forced to plead guilty to
the Ocean and Atlantic County indictments without being allowed to confer with
counsel assigned to those cases: Gerald P. Boswell, Esq. of the Ocean County
OPD. The defendant, in short, was forced
to accept the State’s bribery and the OPD and Prosecutor’s Office both got the
guilty plea they had sought from the inception of the case.
The Courts unconstitutionally turned a blind eye
towards defendant’s Fourth and Sixth amendment rights throughout this
“persecution-prosecution.” The public
was also denied justice with the forced plea.
On
On February 14, while serving his sentence at
16
IV
THE FACTS
CONCERNING THE FAILURE AND
REFUSAL OF
THE OPD TO FILE THE NOTICE
OF APPEAL
AND TO ORDER THE TRANSCRIPTS
FOR APPEAL
FOR MANY MONTHS UNTIL THE
DEFENDANT
WAS FORCED TO FILE SUIT
On
On
rights action under Title 42 U.S.C. § 1983 (Docket No. 01-3850)
against the OPD (including then Public Defender Peter
Garcia and Mr. Kaigh) for failing to file the Notice of Appeal and order his
transcripts. Defendant had been
incarcerated for 9 months.
Finally, on
The defendant did not receive his transcripts until
April 7, 4 days after he was released into ISP.
Thus, the OPD
17
successfully prevented the defendant from a timely
appeal. This outright denial of due
process was part of a cover-up by Camden County officials (including the OPD
and Prosecutor’s Office).
V
THE FACTS
CONCERNING THE DEFENDANT’S
RE-ARRESTS
AND RE-INCARCERATIONS BY THE
ISP
OFFICIALS, FOUND BY JUDGE IRENAS TO
HAVE
VIOLATED HIS FIRST AMENDMENT RIGHTS
On April 3,
2002, the defendant was released from Riverfront Prison into the State
ISP. Almost immediately he was illegally
and unconstitutionally ordered by state ISP officials not to speak with the
press about marijuana. The defendant was
incarcerated by ISP officials for four days in June, 2002, for speaking to the
press.
On
Defendant filed a habeas petition and §1983 action, and in
18
January, 2003, Judge Irenas ordered defendant released
from jail into the ISP. See Forchion, supra, 240 F.Supp.2d
at 311. However, the defendant unjustly
languished for 5 months in jail due to ISP’s illegal arrest/imprisonment.
LEGAL ARGUMENT
POINT I
THE CONVICTIONS SHOULD BE REVERSED AND
THE INDICTMENT DISMISSED UNDER BRADY/GIGLIO, THE FOURTH AND
FOURTEENTH AMENDMENTS SINCE
A) THE DEA SEIZED THE PACKAGE IN ARIZONA ILLEGALLY AND HANDED IT TO
ARIZONA STATE AUTHORITIES ON A “SILVER PLATTER;” B) THE
NEW JERSEY AUTHORITIES CONCEALED THE DEA’S INVOLVEMENT FOR NEARLY THREE
YEARS; C) THE STATE HAS NEVER PRODUCED A POLICE REPORT FROM DEA AGENT GULICK
(NOT RAISED BELOW)*
SUBPOINT A
THE DEA SEIZED THE PACKAGE IN ARIZONA ILLEGALLY AND HANDED IT TO
ARIZONA STATE AUTHORITIES ON A “SILVER PLATTER”
As revealed
in “
___________________________________
* This Point
supplements Points VII (“Judge Brown erred in denying the motion to
suppress since the search and seizure violated the Fourth Amendment ...”) and Point
VIII (“The defendant’s Brady/Giglio rights and Fourteenth
Amendment Due Process rights were violated ...) of defendant’s counsel’s brief.
19
involvement until after the suppression hearing
on
THE “SILVER
PLATTER” DOCTRINE
In Elkins v.
A state officer who disobeys [a state law] needs only to turn his
evidence over to the federal prosecutor, who may freely utilize it under
today’s innovation in disregard of the disciplinary policy of the State’s
exclusionary rule. I cannot think why
the federal courts should thus encourage state illegalities.
Justice Frankfurter proposed that federal courts
suppress evidence obtained in violation of state law out of comity, as a rule
of evidence, apparently under their supervisory powers.See Elkins,
364 U.S. at 250, 80 S.Ct. at 1462. As explained in United States v. Thomas,
787 F.Supp. 663 (E.D.Tex. 1992), affirmed, 983 F.2d 1062
(5th Cir. 1993) it could be argued that the very reason that Elkins
gave for abolishing the “silver
20
platter” doctrine argue for the suppression in federal
court of evidence obtained in violation of state law. Elkins recognized
that having a lower federal standard for the admission of evidence seized by
state offices induced subterfuge on the part of law enforcement to ensure the
weaker test would be applied. See Id. at 222, 80 S.Ct. at
1446-47. Elkins was decided prior
to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d
1081 (1961), which held that any evidence obtained by searches and seizures in
violation of the Constitution is inadmissible in state court.
In Forchion, the illegally seized package was
improperly “handed over” by the DEA to the
THE NEW JERSEY AUTHORITIES CONCEALED THE DEA’S INVOLVEMENT FOR NEARLY
THREE YEARS,
MANDATING SUPPRESSION OF THE PACKAGE
AND DISMISSAL OF THE INDICTMENT
In Brady v. Maryland, 373 U.S. 83
(1963), the Court held that “the suppression by the prosecution of evidence
favorable to the accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.”
21
witness’s testimony that his predecessor had made
promises to a witness in order to secure that witness’s testimony violated due
right). See State v. Holland,
__ N.J. __ (2003) (independent-source rule inapplicable where State is
directly responsible for the loss of the opportunity lawfully to obtain
evidence).
In Forchion,
state authorities violated defendant’s due process rights by concealing DEA
involvement for nearly three years until the “
THE STATE HAS
NEVER PRODUCED A
POLICE REPORT
FROM DEA AGENT GULICK
The defendant was not apprised of DEA involvement in
his case until after the suppression hearing in July of 2000. There is no question that the DEA was heavily
involved at the inception of the
22
then the State’s justification (accepted by the court
below) that a private party opened the package is, in a word, false. In addition to the suppression issue (the
warrantless opening of the package), substantial issues such as selective
prosecution and entrapment were curtailed by the failure of the State to
produce any DEA reports.
Under R. 3:12-1, an entrapment defense (N.J.S.
2C:2-12) must be raised 7 days before the arraignment/status conference. Defendant Forchion was precluded from raising
the entrapment defense (See Point IV, infra). See Goldberg
v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d
603 (1976) (writing prepared by a government lawyer relating to the subject
matter or testimony of a government witness, if “signed or otherwise adopted or
approved” by the government witness, is producible under the Jencks Act”); United
States v. Ammar, 714 F.2d 238, 259 (3d Cir.), cert. denied,
464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983)
(“hereafter ... the government must retain and, upon motion, make available to
the district court both the rough notes and the drafts of reports of its agents
to facilitate the district court’s determination whether they should be
produced”); United States v. Butts, 533 F.Supp. 608 (E.D. Pa.
1982) (reversible error to fail to strike testimony of officer in light of his
destruction of a rough draft of an investigative report).
In Forchion, due to the Prosecutor’s Office’s
failure to produce either Special Agent Gulick’s (or any other) DEA report, the
convictions must be reversed and the indictment dismissed.
23
POINT II
THE INDICTMENT SHOULD BE DISMISSED WITH
PREJUDICE SINCE THE GRAND JURY WAS NEVER
ADVISED AS TO THE “
AS TO THE DEA’S INVOLVEMENT; DEFENDANT’S
FIFTH AMENDMENT AND DUE PROCESS RIGHTS
WERE VIOLATED (NOT RAISED BELOW)
In October
of 1998, the Forchion case was presented to the grand jury and defendant
was indicted. However, the grand jurors
were never advised that the package had been opened in Arizona, were never
presented with any documents from the Arizona state investigation, nor were
they advised as to the DEA involvement.
These omissions resulted in an incompetent and incomplete presentation,
misled the grand jury, and led to an unconstitutionally tainted indictment. Palko
v.
POINT III
JUDGE BROWN
ERRED AT THE SUPPRESSION HEARING
IN PERMITTING
THE “ARIZONA REPORTS” TO BE
ADMITTED AT
THE SUPPRESSION HEARING WITHOUT
REQUIRING THE
WITNESS TO TESTIFY AND ERRED
IN PERMITTING
THE PROSECUTOR TO “TESTIFY”
AS TO THE
EVENTS IN ARIZONA; DEFENDANT’S
SIXTH
AMENDMENT CONFRONTATION AND FOUR-
TEENTH
AMENDMENT DUE PROCESS RIGHTS WERE
VIOLATED
MANDATING A REVERSAL
On
24
1997. (15T6-23 to 7-10). Moody, however, did not fax the
Judge Brown erred in admitting the hearsay “Arizona
Reports” as defendant was deprived of the opportunity to cross-examine
Detective Galbari, and was deprived of the opportunity to investigate the
“facts” stated in the report. Defendant
was deprived not only of the right to refute the State’s “evidence” at the
suppression hearing, but defendant was also deprived of his right to present
witnesses and a defense due to the failure of the authorities to have provided
the “Arizona Reports” until after the Franks hearing had begun. The prejudice to defendant is enormous, as
the nearly three year delay in producing these reports effectively precluded
any defense investigation.
Judge Brown should have precluded the Arizona Reports
from being admitted and barred the Prosecutor from referring to them to shore
up his case. See Brady, supra; Giglio, supra. The convictions must be reversed and
indictment dismissed.
POINT IV
THE DEFENDANT
WAS ENTRAPPED BOTH AS A
MATTER OF LAW
AND UNDER DUE PROCESS
ENTRAPMENT,
MANDATING DISMISSAL OF THE
INDICTMENT
WITH PREJUDCE (NOT RAISED BELOW)
It is undisputed that law enforcement officers in
25
undisputed that the defendant never possessed the
package or attempted to enter the building where the package was delivered.
Defendant, who saw the police attempting to arrest his brother, simply followed
that pursuit and was arrested, too.
Due to the withholding of the Arizona Reports by the
State, the defendant was unable to raise an entrapment defense under R.
3:12-1. Under N.J.S. 2C:2-12,
such a defense must be raised must be
raised 7 days before the arraignment/status conference.
THE LAW
REGARDING THE DEFENSE OF ENTRAPMENT
There are two different entrapment defenses in State
court—the statutory defense and entrapment based on constitutional due process
principles. Concerning statutory
entrapment, N.J.S. 2C:2-12 provides:
a. A public law enforcement official or a person engaged in cooperation
with such an official or one acting as an agent of a public law enforcement
official perpetrates an entrapment if for the purpose of obtaining evidence of
the commission of an offense, he induces or encourages and, as a direct result,
causes another person to engage in conduct constituting such offense by either:
(1) Making knowingly false representations designated to induce the belief
that such conduct is not prohibited or
(2) Employee methods of persuasion or inducement which create a
substantial risk that such an offense will be committed by persons other than
those who are ready to commit it.
b. Except as provided in
subsection c. of this section, a person prosecuted for an offense shall be
acquitted if he proves by a
26
preponderance of evidence that his conduct occurred in response to an
entrapment. The issue of entrapment
shall be tried by the trier of fact.
c. The defense afforded by this section is unavailable when causing or
threatening bodily injury is an element of the offense charged and the
prosecution is based on conduct causing or threatening such injury to a person
other than the person perpetrating the entrapment.
Under the Code of Criminal Justice, entrapment is an
affirmative defense which the defendant must prove by a preponderance of the
evidence. State v. Gibbons, 105 N.J. 67 (1987); State v.
Medina, 201 N.J. Super. 565 (App. Div.), certif. denied,
102 N.J. 298 (1985). The
statutory defense has both subjective and objective elements. State v.
Rockholt, 96 N.J. 570, 579 (1984).
Subjective entrapment occurs when the police implant a criminal plan
into the mind of an innocent person who would not ordinarily have committed the
offense.
Entrapment based on constitutional due process
principles concentrates exclusively on government conduct and the extent of
27
the government’s involvement in commission of the
crime. State v. Johnson, 127 N.J. 458, 470 (1992). Due process entrapment poses an issue of law
that must be resolved by the court.
Under due process standards, entrapment occurs when
the governmental conduct was “patently wrongful in that it constitutes an abuse
of lawful power, perverts the proper role of government, and offends principles
of fundamental fairness.”
Defendant Forchion contends that based upon the
evidence that surfaced with the production of the “
28
Defendant submits that this prosecution was a
malicious political prosecution based upon the fact that defendant is an open
advocate for the legalization of marijuana.
The defendant was precluded from raising any entrapment defense due to
the withholding of the
POINT V
THE INDICTMENT SHOULD BE DISMISSED WITH
PREJUDICE AS IT IS THE RESULT OF SELECTIVE
PROSECUTION IN VIOLATION OF THE EQUAL PRO-
TECTION CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION (NOT RAISED BELOW)
As with the
entrapment defense, the defendant was precluded from filing any motion
regarding selective prosecution due to the withholding of the Arizona Reports
and ineffectiveness of counsel. As
explained supra, the defendant never was in actual or constructive
possession of any of the marijuana. It
was the government that brought the marijuana into
29
Arizona.
Defendant was selectively prosecuted by the government due to his open
advocacy for the legalization of marijuana.
THE LAW
REGARDING SELECTIVE PROSECUTION
The United States Supreme Court has recognized that
prosecutorial discretion, although broad, is subject to constitutional
restraints Wayte v. United States, 470 U.S. 598, 105 S.Ct.
1524, 1531, 84 L.Ed.2d 547 (1985); Yick Wo v. Hopkins, 118 U.S.
356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and the government is not
entirely unconstrained in its choice of those whom it will prosecute. In Yick Wo Justice Matthews wrote:
... if [a law] is applied and
administered by public authority with an evil eye and an unequal hand, so as practically
to make unjust and illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal justice is still
within the prohibition of the constitution. Id. at 373-74, 6 S.Ct.
at 1073.
To permit criminal prosecutions to be initiated on the
basis of arbitrary or irrational factors would be to transform the prosecutorial
function from one protecting the public interest through impartial enforcement
of the rule of law to one permitting the exercise of prosecutorial power based
on personal or political bias. “Nothing can corrode respect for a rule of law
more than the knowledge that the government looks beyond the law itself to
arbitrary considerations, such as race, religion, or control over the
defendant’s exercise of his constitutional rights, as the basis for determining
its applicability.”
30
United States v. Torquato, 602 F.2d 564 (3d Cir. 1979), cert. denied,
100 S.Ct. 295, 444 U.S. 941, 62 L.Ed.2d 307 (1979) (“It is
the wisdom of our Constitution that such personal abuses of governmental power
are proscribed.”)
To demonstrate that selective prosecution is a
violation of equal protection, a defendant must make two showings.
Concerning the first prong, that similarly situated
persons have not been prosecuted, in Berrigan, supra, the Court
stated
31
that “although the government is permitted ‘the
conscious exercise of some selectivity’ in the enforcement of its criminal
laws, any ‘systematic discrimination’ in enforcement or ‘unjust and illegal
discrimination between persons in similar circumstances,’ violate the equal
protection clause and renders the prosecution invalid.” Unequal application of the criminal law does
not amount to a constitutional violation, however, “unless there is shown to be
present in it an element of intentional or purposeful discrimination.” Snowden
v. Hughes, 321
The burden of proving such discrimination is placed
upon the defendant. United States v. Malinowski, supra. In order to minimize the intrusion on the
prosecutorial function and still enable a defendant effectively to raise a
claim of selective prosecution, the defendant is obligated to make a threshold showing
of discriminatory prosecution before an evidentiary hearing will be accorded on
the issue. Some credible evidence must
be adduced indicating that the government intentionally and purposefully
discriminated against the defendant by failing to prosecute other similarly
situated persons.
In Forchion,
had the discovery rules not been flagrantly violated by the government (and had
pre-trial and trial counsel not been ineffective), defendant would have
established a case for selective prosecution.
As it stands, this issue was abrogated due to the ineffectiveness of
counsel and collusion between counsel, the OPD and the
Prosecutor’s office.
32
POINT VI
JUDGE BROWN ERRED IN DENYING THE
DEFENDANT’S PRO SE MOTION TO
RAISE
THE DEFENSE OF JURY NULLIFICATION
IN VIOLATION OF HIS SIXTH AND FOUR-
TEENTH AMENDMENT DUE PROCESS RIGHTS*
On
The “Jury’s power of nullification by finding defendant not guilty is an
unfortunate but unavoidable power that should not be advertised, but to an
extent constitutionally permissible ...” State v. Ragland, 105 N.J.
189 (1986). In Forchion, although
the prosecution did not object and the court ultimately did not intervene when
__________________________________
* This Point supplements Point IV
(“Defendant was denied his right to effective assistance of trial counsel ...
by the [OPD]’s refusal to consider ... his jury nullification defense”) and Point
VI (“The court below erred by not allowing the defendant to argue jury
nullification ...”)
33
defendant uttered the phrase “jury nullification” several times in his
opening statement, the court had already undermined and eviscerated this
defense by its
The jury has the power to legally nullify the law in any one particular
case by simply returning a "not guilty" verdict. "The jury has a
right to judge both the law as well as the fact in controversy." - John
Jay, First
"The pages of history shine on instances of the jury's exercise of
its prerogative to disregard uncontradicted evidence and instructions to the
judge."
34
jury shall have the
right to determine the law and the fact.” (Emphasis supplied). As explained in 2 Elliots Debates, 94,
Bancroft, History of the Constitution, 267:
“Jury
nullification of law”, as it is sometimes called, is a traditional American
right defended by the Founding Fathers.
Those Patriots intended the jury to serve as one of the tests a law must
pass before it assumes enough popular authority to be enforced. Thus the Constitution provides five separate
tribunals with veto power – representatives, senate, executive, judges and jury
– that each enactment of law must pass before it gains the authority to
punish those who choose to violate it. (Emphasis supplied).
The respect for nullification flows from the role of the jury as the
“conscience of the community” in our criminal justice system. Witherspoon
v.
As stated in Datcher, “to deny a defendant the possibility of
jury nullification would be to defeat the central purpose of the jury
system.”
In State v. Ragland, 105 N.J. 189 (1986), the Court
acknowledged the power of the jury to acquit despite not
35
only overwhelming proof of guilt but despite the jury’s belief, beyond a reasonable
doubt, in guilt.
These scholars take the position that the exercise of the power is
essential to preserve the jury’s role as the “conscience of the community.” Ragland,
supra, at 205. See, e.g., United States v. Quarles,
350 U.S. 11, 18-19, 76 S.Ct. 1, 5-6, 100 L.Ed.
8, 15 (1955).
Finally, the jury's power to nullify is
protected by our abiding "judicial distaste" for special verdicts or
interrogatories to the jury in criminal cases.
36
Unlike in civil cases, where such
devices are routinely employed, in criminal cases it has frequently been held
to be error to ask a jury to return anything but a general verdict of guilty or
not guilty. United States v. McCracken, 488 F.2d 406, 418-419
(5th Cir. 1974) (collecting cases). This
rule is designed to safeguard the jury's power "to arrive at a general
verdict without having to support it by reasons or by a report of its deliberations"
and to protect its historic power . . . as conscience of the community.
Although the issue is far from settled,
a powerful argument can be made that this rule "is of constitutional
dimensions," and a direct corollary of the Sixth Amendment's protection of
the jury's power to nullify. Wayne LaFave & Jerold
37
give
a criminal jury the inherent discretionary power to "decline to
convict," and insure that such "discretionary exercises of leniency
are final and unreviewable." McCleskey v. Kemp, 481
In effect, although both amendments are
written quite similarly, the Supreme Court has interpreted the Sixth Amendment
to give criminal defendants a right to a jury and a trial; the Seventh
Amendment, where it applies, only gives civil litigants the right to a jury if
there is a trial. A criminal jury's power to nullify is currently as well
settled as any other rule of constitutional law.
For
the foregoing reasons, defendant’s convictions must be reversed and, in the
event of a retrial, the defendant should be permitted to raise jury
nullification.
38
POINT
VII
N.J.S.A. 2C:35-5a(1)
AND b.10(a) ARE
UNCONSTITUTIONAL AS THEY VIOLATE THE
FIRST
AMENDMENT ESTABLISHMENT CLAUSE, THE
FOURTEENTH
AMENDMENT EQUAL PROTECTION CLAUSE, AND
ARTICLE 1,
PARAGRAPH 4 OF THE NEW
SINCE PEYOTE IS A RECOGNIZED RELIGIOUS
EXEMPTION (PARTIALLY RAISED BELOW)
The First Amendment provides that “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof.” Article I, paragraph 3 of the
The
“Where rights secured by the
Federal Constitution are involved, there can be no rule-making or legislation
which
39
would abrogate them”. See, Miranda v. Arizona, 384 U.S.
436, 491, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ("An
unconstitutional act is not a law; it confers no rights; it imposes no duties;
it affords no protection; it creates no office; it is in legal contemplation,
as inoperative as though it had never been passed"); Norton vs. Shelby
County, 118 U.S. 425, 442 (“Challengers asserting that a statute is
unconstitutional based on a claim of vagueness ordinarily is analyzed in light
of the facts of each particular case; however, when First Amendment freedoms
are involved, statute may be challenged on the grounds that it is facially
invalid”); Luckei v. State of New Mexico, 901 P.2d 205, 120 N.M
274 (N.M. 1995) (“Due Process requires all laws which seek to regulate First
Amendment activities must be sufficiently definite and certain so as not to be
impermissibly vague”); Ellwest Stero Theater v. Boner, 718 F.Supp.
1553 (M.D. Tenn. 1989).
Article I, Paragraph 4 of the
40
from passing laws which prefer one religion over another. Olsen v.
Drug Enforcement Admin., 878 F.2d 1458, 1463 n. 5 (D.C.Cir. 1989); Walz
v. Tax Comm’n, 397
Our Christian/Jewish legislators have chosen their Judeo/Christian faith
as the genesis of our drug laws by allowing the use of wine as a sacrament but
prohibiting the use of “marijuana” as a sacrament. The defendant is a practicing
Rastafarian. Rastafarians use marijuana
as both a sacrament in religion and as a medicine.
Rastafarianism is a recognized religion which first took root in
41
are African-American.
(Da 152).
Rastafarianism proclaims the divinity of Haile Selassie, former
Emperor of
Rastafarianism is a religious group sufficiently stable and distinctive
to be identified as an existing religion by the United Nations and
Neither the 1970 Controlled Substance Act (21 U.S.C. 321(p)(1))
not N.J.S.A. 2C:35-5a(1) and b.10(a) provide for First Amendment religious
exemptions to drug laws, Congress
42
attempted to rectify this with the 1993 Religious Restoration Act
(“RFRA”) (42 U.S.C. §2000bb(a)), instead creating an unconstitutionally
“vague” situation. Defendants such as
Forchion were led to believe “marijuana” was legal for religious purposes. The RFRA protects the religious use of
marijuana by practicing Rastafarians, just as the 1919 Volstead Act
(Prohibition) protected the religious use of alcohol in the Catholic Church.
In Employment Division v. Smith, 494
In response to Employment Division, Congress enacted the RFRA. However, the Court in City of Boerne v.
P.F. Flores, 521
43
In Forchion, Judge Brown relied upon Employment Division
and Boerne. However, in People
of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) (decided
after Judge Brown’s decision), the Ninth Circuit ruled that the RFRA
forbids prosecuting Rastafarians for using marijuana within the federal realm,
such as a United States territory or a national park, thus upholding a portion
of the RFRA.
In Guerrero the defendant, a Rastafarian arrested at the
This distinction in Guerrero does not make sense since it is the
equivalent to saying that, while wine is a
44
necessary sacrament for some Christians and Jews, the persons
administering the sacrament would have to grow their own grapes. If a Rastafarian is permitted to smoke ganja
on federal grounds as constitutionally protected 1st Amendment
behavior, it is illogical to prosecute the person who provides the ganja.
The RFRA protects the religious use of marijuana by
practicing Rastafarians, just as the 1919 Volstead Act (Prohibition
Act) protected the religious use of alcohol in the Catholic Church. When
45
POINT VIII
THE MARIJUANA STATUTES ARE
UNCONSTITUTIONAL
DUE TO VAUGENESS, INDEFINITENESS AND
OVER-
BREADTH; THEY ALSO VIOLATE THE UNITED
STATES
CONSTITUTION’S PROHIBITION AGAINST BILL OF
ATTAINDERS (NOT RAISED BELOW)
In State v. Profaci, 56 N.J. 346 (1970), the Court cited
the principles concerning whether a statute is unconstitutional due to
vagueness, indefiniteness or overbreadth:
The concept
of vagueness or indefiniteness rests on the constitutional principle that
procedural due process requires fair notice and proper standards for
adjudication. The primary issues
involved are whether the provisions of a penal statute are sufficiently definite
to give reasonable notice of the prohibited conduct to those who wish to avoid
its penalties and to appraise judge and jury of standards for the determination
of guilt. If the statute is so obscure that men of common intelligence must
necessarily guess at its meaning and differ as to its applicability, it is
unconstitutional.
Congress never had the authority to enact prohibition or "drug
control" statutes unless they were intended to regulate interstate
commerce (Article 1, Section 8, clause
46
3). See also Nigro vs.
The 1970 Controlled Substances Acts and N.J.S.A. 2C:35-5a(1) and
b.10(a) (hereinafter the acts) comprise a bill of attainder in violation of
Article I Section 9 of the United States Constitution and are equally unconstitutional
for failing to provide a religious exemption for the use of marijuana.
Even during the alcohol prohibition (“Prohibition”), which began with the
enactment of the Volstead Act (the 1919 law giving federal agents the power to
investigate and prosecute violations of the Eighteenth Amendment), there was a
blanket exception for the manufacture, use, etc., of alcohol for
"sacramental purposes" at Title II, section 3.
There has never been a Constitutional Amendment to outlaw drugs and there
is nothing in the Constitution that would give our Federal or State governments
the power to do so. The Ninth Amendment
states that the enumeration of particular Constitutional rights "shall not
be construed to deny or disparage others retained by the people" and the
47
Tenth Amendment where all powers that are not delegated in the document
are reserved to the states "or to the people." In Griswold v. Connecticut, 381
In West Virginia State Board of Education v. Barnette, 319
Eleven states have legalized marijuana for medical use and yet New Jersey
refuses to recognize these laws, in violation of the United States
Constitution’s guarantee that each state will give "full faith and
credit" to the laws of other states.
The acts, in several instances, violate the right of all persons to equal
protection of the laws. See Article XIV
Section 1 of the Bill of Rights. The
acts enshrine into federal law the opinions of licensed professionals, i.e.,
the medical community, and whereas the Constitution says nothing about licenses
said federal laws are invalid. It is said to be unlawful and mala prohibita
to possess, manufacture, dispense or even abandon said controlled
48
substances except in the course of recognized and professional medical or
research practice (as determined by the Secretary of Health and Human Services
on the basis of the consensus of views of the American medical community - 21
USC 801a, 802(8), 841, 844). This office
(formerly Health, Education and Welfare) is also authorized to make grants, and
enter in to contracts, for the collection and dissemination of drug abuse
education material, and develop and evaluate such programs, and, acting through
the National Institute of Mental Health, to serve as a focal point for the
collection and dissemination of information relating to drug abuse - US PL
91-513.
Defendant submits that this substantially prejudices law enforcement
philosophy, jurisprudence and legislation.
In Forchion, Judge Brown denied defendants motion to use a
“medical necessity” defense. (Da 181).
The presumption of innocence until proven guilty is set aside in cases
of drug possession by placing the burden of proof upon the defendant who must
demonstrate medical permission - 21 U.S.C. §
885.
Criminal legislation in the field of medicine should apply only to
specific instances of individual danger, and
49
then only at the state level. The
acts, on the other hand, make the subject of criminal legislation differences
of opinion with the consensus of opinion of with the American medical
community. The acts authorize conviction
irrespective of conduct, loss of self-control or finding of science endangering
or threatening to the public health, safety or morals, and welfare.
Another violation of the right to equal protection is the legal standing
of people charged with breaking the laws that regulate alcohol and tobacco
products. Those whose charges involve
Controlled Substances, cultivation of marijuana for personal use, or sale
between consenting
adults without complainants, for example, are dealt with much more
harshly and severely than merchants who illegally sell tobacco (the number one
killer drug) to minors, and alcohol related violations of motor vehicle law.
The acts also violate equal protection since the acts, as applied, are
racist. For thousands of years African
have used the “herb” marijuana as a medicine and as a sacrament in numerous
religions.
Through the institution of slavery (1619-1865) and in spite of the First
Amendment, this country was founded on
50
Africans who were forced to abandon their native religions and accept
Christianity (the faith of the slavers).
Christianity does not recognize marijuana as a sacrament. In 1484, Pope Innocent the VII banned the use
of “cannabis” and decreed "cannabis"
an unholy herb, Satan’s weed, the herb of heathens, weed of the satanic
masses, etc.
Slavery ended over 137 years ago, yet many African-Americans who reject
Christianity as their faith (as does this defendant), find laws such as the
1970 Controlled Substance Act (“CSA”) and N.J.S.A. 2C:35-5a(1) and
b.10(a) prohibit them from freely exercising African based faiths by banning
the religions sacrament.
The CSA and State marijuana laws also violate title VII of the Civil
Rights Act of 1964 (42 U.S.C. §2000(e)), which prohibits discrimination based on race,
color, religion, sex and national origin.
Many of our common law rights extend back to the Bible. In Genesis 1:29, God grants us every herb
bearing seed (which “marijuana” is).
Genesis
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herb yielding seed, and the fruit tree yielding fruit after his
kind, whose seed is in itself, upon the earth: and it was so.” Genesis 1:12 says, “And the earth brought
forth grass, and herb yielding seed after his kind, and the tree yielding
fruit, whose seed was in itself, after his kind: and God saw that it was
good”. For defendants such as Forchion,
following the Bible can put a citizen in criminal jeopardy.
Provisions for the protection of human rights are also made in the Charter
of the United Nations; the Chapter I Article 1 (1) respects "the principle
of equal rights and self-determination of peoples..." Article 1 (3) promotes the fundamental
freedoms for all without distinction as to race, sex, language or religion." Article 19 promotes the free exchange of
ideas and information. Further, the
United Nations Universal Declaration of Human Rights declares that
participation in the cultural life of the community is a right.
Drug control treaties cannot compel the
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While it is clear to some people that the “War on Drugs” violates Constitutional
and human rights, the view of those who are vested in law enforcement (or with
the power to make laws and interpret rights) consider it a foregone conclusion
that the drug laws are constitutional.
To even bring up the topic of rights may harden the resolve of lawmakers
and judges because it implies that they have failed to understand the true
meaning of the Constitution.
In fact, this defendant has been persecuted by publicly holding this
stance, and the very prosecution before this court on appeal was a result of
this stance. The defendant Forchion has been jailed for 5 months for publicly
questioning the drug laws. Forchion v. ISP, et al.
240 F.Supp.2d 302.
In November of 1998, the
53
of supplying “marijuana” to his child. It was simply for expressing his religious
belief that this sacrament should be legal.
These beliefs became public when Forchion ran for a seat in the
Defendant has the burden to demonstrate that the marijuana laws violate a
constitutional provision. City of
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child molestations due to the refusal of the trial judge to permit an
expert witness to testify—-specifically, the defense sought expert defense
testimony that would have supported the defendant’s claim that his responses to
accusations when speaking on the telephone were grounded in his professional
training. (Dsa 29). In finding the
preclusion of the expert testimony reversible error, the Court stated: “The
possibility that defendant might have been convicted because he was improperly
prevented from presenting an exculpatory witness was sufficient to support a
reversal. (Dsa 32). In Forchion,
as in Hilkevich, defendant was precluded from a fair trial by the
preclusion by the trial judge (and OPD) of expert witnesses related to religious
freedom and equal protection, jury nullification, and medical necessity.
The defendant Forchion prays that the Honorable Judges of this Court
recognize that he knows the risks of these arguments, and that his continued
persecution by fundamentalist Christian types and law enforcement is a real
possibility. The defendant prays that
the judges courageously adhere to the natural law of justice--tempered perhaps
by the radiant glow of a little kindness, tolerance, understanding and mercy.
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POINT IX
DEFENDANT WAS
DENIED EFFECTIVE ASSISTANCE
OF TRIAL
COUNSEL AS GUARANTEED BY THE SIXTH
AMENDMENT AND
BY ARTICLE I, PARAGRAPH 10 OF
THE NEW
FOURTEENTH
AMENDMENT EQUAL PROTECTION RIGHTS
BY THE OFFICE
OF THE PUBLIC DEFENDER AND
HIS APPOINTED
TRIAL/STAND-BY ATTORNEY*
Defendant was deprived effective counsel in the
following ways: 1) The OPD, along with assigned trial counsel and standby
counsel, became allies with the Prosecutor’s Office in preventing the defendant
from receiving a fair trial, as explained below.
2) The OPD refused to provide necessary funds and
proper ancillary services, including the production of necessary trial
witnesses. These outrageous violations
of the defendant’s constitutional rights are recounted in Points IV and V
of counsel’s brief dated
3) The OPD, assigned counsel, and standby counsel
failed to provide compulsory process for obtaining witnesses for and against
the defendant, including:
1) Elvy Musikka (a legal marijuana user)
2) Ras Allie Rassi, Fitz Thomas (religious user)
____________________________________
* This Point
supplements Points IV and V (“Defendant was denied his right to
effective assistance of trial counsel ...”)
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3) Professor (Chemistry) Julien Heicklien (
4) Professor (Pharmacology) John P. Morgan,
5) Dr. Steven Fenichel,
6) Dr. Scheinder,
7) James D. Hamilton, Jr., Esq.,
8) Mrs. Forchion (the defendant’s mother),
9) Russell Forchion (the defendant’s brother);
10) Janice-Brown Forchion (defendant’s wife).
11)
12) David
Ragonese, Esq.;
13)
14) December
Reed (
15) Detective Kathy Galbari (had the defendant known about her
involvement);
16) DEA Agent C. Gulick;
17) Federal Express Supervisor Mr. Musa;
18) The unnamed Federal Express employees) who opened the package. (
57
Also, as defendant explained in court on
4) Kevin J. Walshe, Esq., Assistant Deputy Public
Defender, refused to file the defendant’s motion to suppress the evidence
seized though defendant requested this in 1998.
Mr. Walshe’s reason for not filing this necessary motion was, in his
words: “If you think there is a silver bullet here you’re wrong.” Of course, a Franks hearing was, in
fact, later deemed necessary.
The prejudice to defendant by Mr. Walshe’s refusal to
file the suppression motion in 1998 is enormous. Due to the delay in filing the motion there
is now little chance of discovering the true circumstances surrounding the
5) Jaime M. Kaigh, Esq., defendant’s standby counsel,
refused to provide effective assistance of counsel or ancillary services for
the defense. The duties of standby
counsel include providing assistance and to help prepare legal briefs, motions,
and documents. Mr. Kaigh refused to help
defendant file motions for the jury nullification defense (heard on
6) Mr. Kaigh
denied the defendant of effective assistance of counsel when he did not appear
in court on
58
when that failed, he failed to appear for the
scheduled first day of trial on
7) On
As explained in United States v. Haig, 21
F.R.D. 22(D.C.Ohio 1957): “The right of ‘assistance of counsel’ is a
substantial right and not a mere empty gesture, and rule 44, Federal Rules of
Criminal Procedure, 18 U.S.C.A., provides for implementation by court to
make sure that constitutional rights of a defendant are protected and enforced,
it is the solemn duty of the court (trial judge) to comply strictly with the
Constitution and the rule, and there is a correlative duty on the part of the
bar to see that every accused: No matter how unpopular, is represented
competently.” See Mempa v. Ray,
389
59
U.S. 128, 134 (1967) (“the right to counsel exists not
only at the trial but also at every stage of a criminal proceeding where substantial
rights of a criminal accused might be effected.”)
8) The OPD refused to file the “Notice of
Appeal” and refused to order the transcripts (necessary for appeal) in
violation of defendant’s effective counsel and due process rights (as explained
in the Supplemental Statement of Facts, the defendant had to file a federal
lawsuit to require the OPD to order the transcripts. (See Pro Se
Motion to Compel OPD to file transcripts dated
In conclusion the defendant Forchion, as a
client, had the right to determine the grounds of his defenses, as long as said
grounds were not unethical, which they were not. In State v. Rue, 175 N.J. 1
(2002), the New Jersey Supreme Court reversed the denial of defendant’s
post-conviction relief petition on the grounds that his attorney refused to
advance the defendant’s clams. Justice
Long held that PCR attorneys should pursue any
grounds insisted upon by the defendant (convicted of
murder) even if counsel thinks they are without merit.
When the OPD (Deputy Friedman), first assigned counsel
(Mr. Walshe) and pool and then standby counsel (Mr. Kaigh), refused to even
consider the merits of the defenses, defendant was deprived of his Sixth
Amendment right to effective counsel, mandating a reversal of his convictions.
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80 L.Ed.2d 674, reh. den., 467
POINT X
THE
DEFENDANT’S PLEA WAS COERCED AND
THE RESULT OF
FALSE BRIBERY BY THE STATE;
JUDGE THOMPSON
ERRED IN DENYING THE
DEFENDANT’S
MOTION TO WITHDRAW THE PLEA*
Prior to his
sentencing, defendant filed a pro se motion to withdraw his plea
on the grounds that the OPD had denied him the funds to present his witnesses
(22T5-10 to 20), and to present properly the jury nullification defense.
(22T5-10 to 20); (22TT6-17 to 24; 22T7-2 to 9).
Judge Thompson denied the motion. (22T12-1 to 12). Defendant was coerced into pleading guilty by
the State with a false “bribe” (the promise of ISP after 3 to 6 months). In reality, he served 17 months after being
advised by ISP on
In Forchion, the defendant, who is innocent of
the charges, was coerced with the State’s bribe (the promise of early ISP)—said
bribe being all the more egregious since it was false.
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POINT XI
JUDGE BROWN
ERRED IN NOT REQUIRING JAIME KAIGH,
ESQ. TO
PARTICIPATE IN THE RECONSTRUCTION HEAR-
ING WITHOUT A
WAIVER OF ATTORNEY-CLIENT PRIVILEGE
At the
reconstruction hearing held on
This is yet
another example of the OPD and Prosecutor’s Office acting as allies to deny defendant
of his due process
rights. The
purpose of any reconstruction hearing is to determine what had transpired in
court during the relevant dates--it is entirely irrelevant to the proceeding--for
any attorney-client communications to be revealed. Judge Brown should have ordered that Mr.
Kaigh testify as to what he recalled had occurred at the
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POINT XII
THE
CONVICTIONS SHOULD BE REVERSED AND THE
INDICTMENT
DISMISSED SINCE THE CATEGORIZATION
OF MARIJUANA
AS A SCHEDULE I DRUG IS UNCONSTI-
TUTIONAL AND
VIOLATES DUE PROCESS AND EQUAL
PROTECTION
(NOT RAISED BELOW)
Title 24 defines and categorizes “Narcotic Drugs and
Other Dangerous Substances.” The drug
categorization is made by the State Commissioner of Health. (N.J.S.
24:21-2). Controlled substances are
broken down into five Schedules—Schedule I through Schedule V, with Schedule I
substances being considered to have the highest potential for abuse with “no
accepted medical use in treatment in the
The commissioner has categorized marijuana as a
Schedule I controlled substance—one found to have the highest potential for
abuse and either no accepted medical use in treatment in the
(24:21-5d(15)); 3) Morphine methylsulfonate
(24:21-5d(16)); 4) Morphine-N-Oxide (24:21-5d(17)); 5) 3,4-methylenedioxy
amphetamine (24:21-5e(1); 6) Lysergic acid diethylamide, commonly referred to
as “LSD” (24:21-5e(9)); 7) Mescaline (24:21-5e(11)); and Peyote (24:21-5e(12)).
Thus, the commissioner has placed marijuana in the same category as heroin,
morphine, and L.S.D.
N.J.S. 24:21-3 (Authority to control) specifically grants
the commissioner the authority to add “or delete or reschedule
63
all substances enumerated in the schedules in sections 5 through 8 of
this act” and applies the following criteria:
(1) Its actual
or relative potential for abuse;
(2) Scientific
evidence of its pharmacological effect, if known;
(3) State of
current scientific knowledge regarding the substance;
(4) Is history
and current pattern of abuse;
(5) The scope,
duration, and significance of abuse;
(6) What, if
any, risk there is to the public health;
(7) Its
psychic or physiological dependence liability; and
(8) whether
the substance is an immediate precursor of a substance already controlled under
this article.
Defendant submits that the categorization of marijuana
as a Schedule I drug is unconstitutional and violates due process and equal
protection. Many scientific studies (and
a growing number of states) have proven that marijuana does have an accepted
medical use in treatment and should not be a Schedule I drug. As explained in defendant’s pro se
motion dated
Marijuana has been scientifically proven to have plenty of medical
uses. Most recently the
64
Concerning
the States which have legalized marijuana for medical use, these include
As explained
in defendant’s pro se motion to dismiss dated June 18, 2000, in
1972, the Shaffer Commission, named after former Pennsylvania Governor William
Shaffer, challenged the Scheduling of marijuana as a Schedule I drug, along
with the appropriateness of prosecution individuals for using it. Then President Nixon, after reading the
truthful report, suppressed this report. (Da 151 to 152).
CONCLUSION
Defendant
respectfully submits that the Indictment must be dismissed due to the
unconstitutionality of the statutes.
Also, the Order denying the motion to suppress evidence must be reversed
and the indictment dismissed. In
addition, due to the rampant and pervasive pattern of constitutional violations
by the State (including those committed by the Prosecutor’s Office, OPD and
ISP), the convictions must be reversed and the indictment dismissed. At the very least, a new trial must be ordered
with the OPD providing the necessary and proper defenses.
Respectfully submitted,
Dated:
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