FRAUDULENT PLEA AGREEMENTS: the DOJ's long-running, willful and wanton misconduct brings chaos, violence, and murder to numerous non-cooperating criminal defendants

April 2, 2019

Posted by the One Percenters

United States Department of Justice (DOJ) lawyers and federal prosecutors across our country combined, conspired, and agreed to a course of action in what can be characterized as an “ends justifies the means”, Machiavellian scheme.  In yet another policy or practice exemplifying the DOJ's attitude of invincibility and unaccountability, prosecutors carried out a plan to subject ALL non-cooperating criminal defendants as cannon fodder, in a ruse designed to conceal rewarded criminals who traded information and/or testimony in exchange for reduced charges and prison sentences, as well as other incentives.
Inescapable documentation and evidence show that at least from 1992 through 2000, government prosecutors implemented a policy or practice for which any unofficial person should be, and probably would be, charged with a wide array of federal crimes. The DOJ's sinister scheme involved creating a false narrative by knowingly inserting a series of egregious misrepresentations into ALL plea agreements of defendants that did not cooperate, as a means and method "to protect persons who actually were cooperating with the government," consisting of a nonnegotiable, standardized paragraph of fallacious agreements to make ALL non-cooperating defendants appear as snitches, rats, or stool pigeons, "the effect of the [fraudulent plea agreements] was to require the lawyers to mislead the Court." (Quoting April 13, 2004 letter from the Federal Defenders Services of Wisconsin, Inc.)(see attached).[1]  The United States Attorney's Office in Milwaukee refused to enter into a plea agreement with a non-cooperating defendant "without [the fraudulent] paragraph." (Quoting April 13, 2004 letter at 2).

THE FRAUDULENT PLEA AGREEMENTS  

The express malice behind this scheme was so flagrant, so outrageous, and so subversive of both the human rights of non-cooperating defendants and the integrity of the judicial process itself, rises to a new level of truly conscience-shocking conduct by the DOJ. For nearly a decade, non-cooperating defendants were either beguiled and/or coerced into signing what amounted to clearly unlawful plea agreements filed with the courts purporting in relevant part:

  "The defendant, by entering into this [plea] agreement, further agrees to
  fully and completely cooperate with the government in its investigation of
  this and related matters, and to testify truthfully and completely before
  the grand jury and at any subsequent trials or proceedings, if asked to do
  so. The government agrees that any information provided by the defendant
  pursuant to this paragraph will not be used directly against the defendant,
  except as provided in the proffer letter, and further will not be used in
  determining the applicable sentencing guidelines range, but will be brought
  to the attention of the sentencing court as contemplated by the Sentencing
  Guideline Manual [Section] 1B1.8."

(See e.g. United States v. Dominick, Case No. 00-CR-234 (E.D.Wis. 2000)(Docket # 37 at 8).[2]

          PROSECUTORS BRING ON THE MAYHEM AND VIOLENCE

Strikingly reminiscent to, and most likely straight from the playbook of the FBI's notorious National Counterintelligence Program, "COINTELPRO,"[3]  the DOJ's depraved policy or practice was calculated with a propensity to do much more than to simply "protect persons who actually were cooperating with the government." With such a scheme, it necessarily correlates to a design that was further calculated to expose a great number of non-cooperating defendants (while serving their prison sentences and after release) to harassment, severe emotional stress, threatened use of physical force, extreme violence, and in some cases murder. (See April 13, 2004 letter, 1-2). The soulless architects of this scheme destroyed countless lives. Moreover, the consequences and ripple effects of this diabolic sham continues to adversely affect a great number of American citizens.

          NO ONE IS ABOVE THE LAW

Sooner or later, the truth catches up.  The prosecutors, lawyers, and judges that manifested an agreement to participate in the conduct of this conspiracy[4] at a minimum, violated Title 18, United States Code Section 373; Title 18, United States Code Section 371; and Title 18, United States Code Section 2.  In addition, documents submitted to a court that are not factually and legally justified violate Rule 11(b) of the Federal Rules of Civil Procedure.  This is not even a close call—there are no ifs, ands, or buts about it—the DOJ is responsible for an epidemic of mayhem and violence, and violations of basic human rights spanning decades.  This certainly conflicts with the DOJ's "mission ... to ensure public safety ... [and] to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans."[5]  Seemingly ingrained with a "us-versus-them" mentality, prosecutors complicit in the fraudulent-plea agreement-scheme are reminded of the words inscribed on the wall of the Attorney General's rotunda in Washington, DC, "the United States wins its point whenever justice is done its citizens in the courts," not when DOJ lawyers falsely brand non-cooperating defendants as "snitches," "rats," and "flippers" in fraudulent plea agreements "to protect persons who actually were cooperating with the government."

THE GOVERNORS SHOULD BE ACCOUNTABLE TO THE GOVERNED


This cover-up has gone on long enough.  The rule of law is the cornerstone of our constitutional system of government, it is something that each one of us needs to stand up for and defend.  The crimes perpetrated by the now ironically named Department of Justice lawyers went beyond many of those committed by the non-cooperating defendants that have been victimized by this scheme.  If you are outraged by this clear case of wanton and reckless governmental misconduct, forward this report to the following components of the DOJ requesting their review, investigation and disposition.

United States Department of Justice        
Office of the Inspector General
Investigation Division
950 Pennsylvania Avenue, N.W.,
Suite 4706
Washington, DC 20530-0010
Telephone: (202) 514-3435
Fax: (202) 616-9881

United States Department of Justice
Office of the United States Attorney
Eastern District of Wisconsin
517 East Wisconsin Avenue, Room 530
Milwaukee, Wisconsin 53202
Telephone: (414) 297-1700
Fax: (414) 297-4394



[1] By promptly responding to the incarcerated, non-cooperating defendant, and further revealing the DOJ's fraudulent-plea agreement-scheme, the attorney's letter prevented this person (as well as many others) from serious assault, or possibly a fate worse.  The author of the April 13, 2004 letter, Dean A. Strang, is a former assistant United States attorney in the Eastern District of Wisconsin (Milwaukee Division), and currently an Adjunct Professor at Marquette University Law School and the University of Wisconsin Law School.
[2] This document can be reviewed on the Public Access to Court Electronic Records (PACER) website (www.pacer.gov).
[3] The extent of the FBI's brinksmanship and treachery is limitless, and well documented. See e.g., Hobson v. Wilson, 737 F.2d 1, 12 (D.C. Cir. 1984)(FBI counterintelligence program created and anonymously sent "racially-inflammatory leaflet[s]" in efforts "to engender animosity" between antiwar group and organization of black citizens and leaders); see also Hampton v. Hanrahan, 600 F.2d 600, 609 (7th Cir. 1979)(In a concerted effort to promote "violent conflicts," FBI's Chicago office "sent an anonymous letter" to the leader of "a local black gang" falsely telling him that the Black Panther Party (BBP) had a "'hit out' on him. The purpose of the letter was to prevent a merger and to induce the [local black gang] to initiate reprisals against the BBP."); Davis v. United States, 670 F.3d 48 (1st Cir. 2012)(government found liable for negligence and ordered to pay nearly $2 million to families of murder victims. FBI agents affirmatively intervened to protect murderers who were also FBI informants and members of a Boston organized crime group, both by tips to the men and by blocking law enforcement measures that would likely have brought them to justice before the murders of two women).
[4] "The crime of conspiracy is the agreement itself[.]" Quoting United States v. Corson, 579 F.3d 804, 810 (7th Cir. 2009).
[5] Quoting the DOJ website. See, About The Department Of Justice, available at: https://foia.gov (accessed last on April 1, 2019).

Attached 1:

FEDERAL DEFENDER SERVICES
OF WISCONSIN, INC.
LEGAL COUNSEL
Dean A. Strang
Nancy Joseph
William U. Burke
Brian P. Mullins
Calvin R. Malone
Thomas G. Wilmouth

April 13, 2004

Register No. - ******
USP Leavenworth
P.O. Box 1000
Leavenworth, Kansas 66048, 1000

RE: Plea Agreement

Dear   ******      ,

Your April 7,·2004, letter arrived yesterday. Thank you for writing.

You inquire into my recollection of our discussions concerning a particular paragraph of the
plea agreement, which you quote. My recollection is the same as yours, for practical
purposes. We discussed that paragraph, like most or all other paragraphs in the agreement.
You asked why it appeared in the plea agreement, when you were not exchanging information about anyone else. I explained that the paragraph does not apply to you, and probably further explained that, at the time, the United States Attorney's Office was taking the position that the paragraph must be included in all plea agreements, to protect persons who actually were cooperating with the government.

I thought then that the United States Attorney's policy was wrong and senseless. I opposed
the policy, at the time without success. In my view, it is the government's responsibility to
protect people who cooperate with the government; it is not the responsibility of those who
do not choose to become cooperators to provide cover for those who do. Further, the effect
of the paragraph was to require the lawyers to mislead the Court, because in fact there was
a side agreement not included in the plea agreement: you were not cooperating, when the
agreement suggested you were. The government's purposes may have been benign, I am
willing to assume for the sake of argument, but the fact is that plea agreements containing
this paragraph for those who were not cooperating were inaccurate. Finally, as you suggest,
one possible effect of that paragraph was to expose non,cooperating defendants to harassment in prison by other inmates, on the mistaken belief that these defendants in fact were cooperating with the United States government as snitches, stool pigeons, state's evidence, or whatever name you may wish to give cooperating witnesses. I thought that unfair.

When a new United States Attorney took office in this district after President Bush's
inauguration, the government's policy here changed. The prosecution no longer insists on
this paragraph in plea agreements, as it did in this district at the time you accepted a plea
agreement and pled guilty. At the time, though, as I probably explained to you, the
government would not enter into a plea agreement without that paragraph.

In short, then, to my knowledge you never provided information to the government about
anyone other than yourself. To my knowledge, you did not debrief with government agents. You did not testify for the government in any proceeding, or for that matter, testify for anyone else. To my knowledge, you were not serving as an informant, as a cooperating
individual, or as a cooperating witness.

Sincerely,


Dean A. Strang

RICO forfeiture: the DOJ's tool to rob, plunder, and punish the unindicted collective membership of targeted motorcycle clubs.


       December 25, 2018
                                                                     
        Posted by The One Percenters

       The United States Department of Justice (DOJ) purports to the general public, as well as all persons accessing the World Wide Web, that part of its "mission is ... to ensure fair and impartial administration of justice for all Americans." [Fn.1]  This, of course, is far more rhetorical than real when you become aware of the DOJ's insidious abuse of civil and criminal forfeiture laws in its crusade to seize heirlooms, innocuous items of clothing, club memorabilia, memorials, etc., from the unindicted collective membership of the Outlaws Motorcycle Club (OMC).  Stooping even lower, is the conscience-shocking seizure of headstones commemorating deceased OMC members.

       Asset forfeiture has become a routine part of federal criminal law enforcement now that the DOJ has "a direct pecuniary interest in the outcome of the [forfeiture] proceeding[s]." [Fn.2]  Before 1985, proceeds from asset forfeitures went into a general fund that Congress controlled.  In 1986, the DOJ took over direct control of the forfeiture fund which had roughly $94 million in deposits from asset forfeiture.  By 2008, the number was $1 billion; by 2010 it was $2.5 billion; and currently the government is on a $4.4 billion annual pace. 

       The DOJ is literally addicted to forfeitures in a never-ending effort to fill its coffers with billions in U.S. currency. Furthermore, and recognized by the U.S. Supreme Court, forfeiture is indeed "improperly used ... [as] a tool wielded to punish those who associate with criminals, [rather] than a component of a system of justice." [Fn.3] Federal law enforcement agencies, including the DEA, FBI, ATF, and the agencies of the Department of Homeland Security, "initiate tens of thousands of administrative forfeiture cases every year, and federal prosecutors file civil and criminal forfeiture actions in federal courts in thousands of cases as well.  New forfeiture cases are decided every week, making it difficult for the courts themselves, as well as practitioners, to keep current." [Fn.4] As explained further in this posting, the collective membership of the OMC knows firsthand of how "the broad forfeiture provisions carry the potential for Government abuse and can be devastating when used unjustly." [Fn.5]

       A criminal defendant convicted of violating the Racketeer Influenced and Corrupt Organizations Act (RICO) forfeits his or her interests in the RICO enterprise, assets acquired in violation of the Act, and any proceeds derived from the defendant's racketeering activity.  To be derived from racketeering activity means that the property was obtained, directly or indirectly, from the proceeds of the pattern of the racketeering.  In addition, property "affording a source of influence over" the charged RICO enterprise is subject to forfeiture.  See 18 U.S.C. § 1963(a)(2)(D).  An example of the congressional intent of such property would be a legally purchased and owned automobile that was otherwise used to collect and transport gambling debts.  In other words, property affording a source of influence is only subject to forfeiture to the extent it is tainted by the racketeering activity. 

       For nearly 80 years, the federal courts have held as a matter of law that, "[f]orfeitures are not favored in the law and should be enforced only within both the letter and spirit of the governing provisions." [Fn.6] This sounds good, but in reality, legal scholars recognize that the DOJ's interpretation of RICO forfeiture appears to be "limited only by the prosecutor's ingenuity or, as the case may be, his restraint."  Quoting William W. Taylor, III, The Problem of Proportionality in RICO Forfeitures, 65 Notre Dame L. Rev. 885, 888 (1990).

DOWN THE RABBIT HOLE OF DOJ FRAUD

       Whether motivated by malice or creative zeal, in 2010, and again in 2012, DOJ consiglieres & prosecutors came up with an innovative scheme to seize and forfeit literally truckloads of clothing and memorabilia bearing the registered collective membership marks of the OMC, Inc., from the uncharged collective membership of the OMC by grossly extending the congressional intent of what constitutes property "affording a source of influence over" a charged RICO enterprise.

       Reminiscent of invading North Korean and Chinese communist troops stripping, plundering, and parading clothing as well as indicia or emblems of KIA and captured American soldiers during the war in South and North Korea back in the early 1950s, so too the DOJ began executing a strikingly similar campaign against the OMC.  Over the last decade the DOJ has been seizing and subsequently forfeiting trademarked items of clothing and memorabilia from the unindicted collective membership of the OMC, (as well as from other "outlaw motorcycle clubs" [Fn.7]) to include, but not limited to: leather vests; club logos & patches; t-shirts; sweatshirts; hats; belts; buckles; rings; banners; mirrors; flags; calendars; books; pictures; records; and commemorative plaques & photos of retired and deceased members (and in some cases, their actual cremated remains).  It appears that the DOJ has unleashed something of a de facto ethnic cleansing to eradicate decades of the OMC's heirlooms and heritage which had been previously preserved and passed on over several decades for posterity.   The government's manipulation of the RICO forfeiture statute18 U.S.C. Section 1963(a)(2)(D), flat-out omission of material facts, silence on conclusive evidence, along with its utter disregard for the Federal Rules of Criminal and Civil Procedure have been a means and methods in its conspiracy to plunder and stockpile a veritable smorgasbord of club-related patches and memorabilia from the OMC and other targeted motorcycle clubs. [Fn.8]

THE DOJ'S "FAIR AND IMPARTIAL ADMINISTRATION OF JUSTICE FOR ALL AMERICANS?"

       Further exemplifying the DOJ's attitude of invincibility and unaccountability, do not ever expect proper statutory or constitutional notice of forfeiture from this branch of the government; the rule of law means nothing to the DOJ in forfeiture proceedings. [Fn.9]  More startling, and something similar to a rigged poker game, an unconstitutional alignment between prosecutors and former federal prosecutors that are now appointed to the bench for lifetime tenures have inescapably assisted DOJ prosecutors and its counterintelligence operatives [Fn.10] in their quest to stockpile the OMC's very history.  When juxtaposed with the verified, uncontroverted evidence submitted by representatives of the OMC which thoroughly proved the club's property was not subject to forfeitureand utterly ignored by the courtsa reasonable observer would indeed find that the decisions started off with a desired result, reasoned backwards, and were clearly based on something other than the merits.

       In the end, too often the DOJ act as if their role is not to protect constitutional rights but rather to see how far they can bend them before the courts step in.
____________________
       Fn.1  See About The Department of Justice, available at: https://foia.gov (accessed last on December 20, 2018).
____________________
       Fn.2  Quoting United States v. James Daniel Good Real Property, 510 U.S. 43, 56 (1993).
____________________
       Fn.3  Quoting Bennis v. Michigan, 516 U.S. 442, 456 (1996)(Justice Clarence Thomas, J., concurring).
____________________
       Fn.4  Quoting Stefan D. Cassella, Asset Forfeiture Law in the United States, New York: Juris Net, LLC (2006).
____________________
       Fn.5  Quoting Libretti v. United States, 516 U.S. 29, 43 (1995).
____________________
       Fn.6  Quoting United States v. One 1987 Mercedes Benz 300E, 820 F. Supp. 248, 251 (E.D.Va. 1993)(citing United States v. One Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226 (1939)).
____________________
       Fn.7  The term, "outlaw motorcycle club," does not denote criminal activity.  It came about decades ago from a belief that "[o]utlaw motorcycle clubs are simply motorcycling organizations that do not hold American Motorcyclist Association (AMA) charters."   See William L. Dulaney, PH.D., A Brief History of Outlaw Motorcycle Clubs, International Journal of Motorcycle Studies (Nov. 2005), available at: http//ijms.nova.edu/November2005/IJMS_Artcl.Dulaney.html (accessed last on December 20, 2018).   The term "1%er" is the result of a July 21, 1947 sensationalized story in Life magazine titled: “Cyclist's Holiday: He and Friends Terrorized Town.”  It was purported by some authors that the AMA subsequently released a press statement stating "that 99% of motorcyclists are good, decent, law-abiding citizens" which the AMA claims it has no record of ever releasing such a statement.  (Quoting William L. Dulaney).  Afterwards, motorcycle clubs across the country jokingly stated that they were the other 1% of rowdy bikers.   However, this truth was apparently inconvenient to the regime's preferred narrative.   As the years have passed, law enforcement and prosecutors alike have employed a good dose of misinformation and its cousin, deliberate disinformation, to revise the true history of the 1%er symbol or label for their desired needs in criminal prosecutions of defendants that are also members of a motorcycle club that identifies with the one percenter moniker.
____________________
       Fn.8  The animus and absurdity of the government's seizures of trademarked indicia and memorabilia from the uncharged collective membership of the OMC, and purporting it as "assets" subject to RICO forfeiture under 18 U.S.C. §1963(a)(2)(D), can be seen by looking at the logical extension of it.  To illustrate, RICO violations may be proved against individuals that commit criminal acts within any legal organization or any association.   Indeed, a former Penn State University assistant football coach, in part, used the allure of his position, and the facilities at the university to accomplish the sexual abuse of 10 boys over the course of 15 years.   More so, the pedophile football coach was allegedly sheltered and protected from law enforcement by high-ranking university officials, who knew of the criminal acts but obstructed justice by not reporting them, while seeking to keep Penn State from stigma and culpability.   The acts of the university officials were done to maintain, enhance, or protect their status within Penn State.  Such activities, if proven, are RICO crimes, but a RICO conviction for those individuals would not make Penn State itself a criminal organization.   However, under the DOJ's innovative scheme and theory of forfeiture against the OMC's indicia and memorabilia, warrants could be procured to seize and forfeit all indicia and memorabilia of Penn State, such as: football jerseys; t-shirts; sweatshirts; hats; trophies; commemorative photos; etc.; because it constitutes property "affording a source of influence over" the RICO enterprise.
____________________
       Fn.9  The law clearly mandates:  "If the court orders the forfeiture of specific property, the government must publish notice of the order and send notice to any person who reasonably appears to be a potential claimant with standing to contest the forfeiture in the ancillary proceeding."  Quoting Federal Rule of Criminal Procedure 32.2(b)(6)(A)(emphasis supplied).  To avoid ancillary proceedings, the DOJ will merely post notice for thirty consecutive days on its quasi-secret, official internet forfeiture site at: www.forfeiture.gov.  Most courts appear to be condoning the DOJ's blatant disregard for statutory and constitutional law regarding proper notice of a forfeiture.
____________________
       Fn.10  Counterintelligence operatives specialize in the innovation and concealment of an extraordinary range of insidious means and methods designed "towards dismantling and eliminating [the Outlaws MC] and their membership through the application of unique investigative techniques."  Quoting the Midwest Outlaw Motorcycle Gang Investigators Association (MOMGIA) website at: www.midwestomgia.org (accessed September 1, 2014)(now removed).  The MOMGIA and similarly situated enterprises, such as the MCIO and IOMGIA, are thinly veiled vigilante groups aimed squarely at preventing the exercise of First Amendment rights.   They have an undaunted, almost fanatical zeal to possess "colors" and other memorabilia of outlaw motorcycle clubs as trophies and for use as props in murderous "investigative techniques."  (Examples of this phenomena will be coming soon).

Jurors Beware: prosecutors routinely compromise the truth-seeking process of our criminal justice system by introducing misleading and perjurious testimony

Courthouses are usually adorned with a statue of a blindfolded woman holding a set of scales which is supposed to represent that justice is blind, meaning that the law should be applied fairly and evenly to the competing parties and claims in each case. The function of State and Federal prosecutors is not merely to prosecute crimes, but also to make certain in each and every case that the truth is honored to the fullest extent possible during the course of a criminal prosecution.   However, in reality, an alarming number of prosecutors in our country believe by virtue of their education and high-powered positions that they are something of a divine, elite class of people in our society, and as a result, systematically impose their will over the interests of justice.[1] Government prosecutors are often self-promoters in a good-ol'-boy network with an ingrained us-versus-them mentality.  And whether inspired by malice or excess of zeal, it is no secret that "prosecutors repeatedly have violated [their] duty in courtrooms across the nation… [and those] abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions."  (Quoting Brad Heath & Kevin McCoy, "Prosecutors' conduct can tip the scales," USA TODAY, 11A (Sept. 23, 2010)). 
A renown criminal defense attorney and Harvard Law School professor testified before the House Judiciary Committee that "[o]n the basis of [his] academic and professional experience no felony is committed more frequently in this country than the genre of perjury and false testimony."  And as acknowledged by courts and former prosecutors across our country, prosecutors know full-on they are effectively beyond any meaningful judicial or political review for their insidious practice of serving-up misleading and/or perjurious witness testimony.  For those that understand the justice system, the consequence of this jaw-dropping, despicable phenomena, is that innocent people are convicted every day in our country as a result of prosecutors playing God.[2]
One of the writers for this blog was on trial back in 1984 and facing 40 years in state prison.  A combined total of approximately 30 to 40 witnesses testified (for both sides) over the course of a 3-day jury trial.  During a court recess, two prosecutors believed they were alone in the men's room as they secretly confessed: "whatever side has the best liars will win this case."  Fortunately, a jury of good citizens in Southeast Wisconsin saw right through the prosecution's "liars" and eventually found the defendant not guilty. 
State and federal prosecutors present witnesses before the courts who are allowed, if not encouraged, to lie under oath.  Before taking the stand at trial, Government witnesses are not instructed to testify truthfully.  Instead, prosecutors direct them to "stay consistent" with their previous testimony to the grand jury and their interviews with law enforcement.  A cooperating government witness in a high-profile federal racketeering trial summed up the mindset of the typical prosecution witness. During cross-examination, this informer for the government admitted that the concept of truth meant: 

"If the government said a frog was an elephant, it was an elephant."[3]

See Barry Tarlow, "Perjuring informers brought to the bar," RICO Report, THE CHAMPION at 35 (July, 2002)(emphasis supplied). 
When prosecutors knowingly sit quietly by while a witness they called lies on the stand, is at least the equivalent to a person standing beside you while your home is engulfed in flames that: (1) knows who started the fire; and (2) has the tools and ability to put it out, but chooses to stay silent and do nothing. This author has personally observed, on several occasions, prosecutors remaining silent (some even smiling) to what everyone else in the courtroom recognizes as outright perjury. Yet more egregious and truly conscience shocking, while complicit in perjury (as well as other crimes) the duplicitous prosecutor goes unpunished on a daily basis across our country.
In the end, jurors must summon the courage to challenge those in the government who put prosecutorial zeal and entitlement over truth, or who would put law enforcement interests over the interests of justice.   





[1] One example of their elite mindset, a federal prosecutor in Milwaukee, Wisconsin, commenced a "cavalier" discussion with a grand jury about his view of the laws in our country: 
"Federal law, in order to be a federal crime and to have a crime prosecuted in federal court as opposed to state court, there has to be what is kind of a stupid word, but you know lawyers; they have to come up with stupid words to make themselves look important. And since Congress, of course, is made of primarily lawyers, all our laws are written stupidly, and no one can understand them but lawyers, and that keeps lawyers employed."  
Quoting United States v. Van Engel, 809 F. Supp. 1360, 1365 (E.D.Wis. 1992).  

[2] See Sidney Powell, "Licensed to Lie: Exposing Corruption in the Department of Justice," 38  (2014)(Brown Books Publishing Group)("As a former assistant U.S. attorney of ten years, who served in the Department of Justice and taught there frequently, [Ms. Powell] knew how prosecutors were supposed to proceed. Doing the job right required a strong sense of honor, integrity, objectivity, and fairness. A federal prosecutor has immense, unbridled power along a broad spectrum of discretion. In the hands of the wrong people, the damage that power can cause is beyond measure. A prosecutor does play God."); see also Limone v. United States, 497 F. Supp. 2d 143, 189 - 92 (D.Mass. 2007)(During a 30-year cover-up, FBI agents' "imaginative direction and professional ingenuity," in developing a professional assassin's perjury in high-profile murder trial, "was known to, supported by, encouraged and facilitated by the FBI hierarchy all the way to the FBI Director.").  


[3] Based on his cooperation, this fable-spinning deal-maker cut a sweetheart deal with prosecutors which enabled him to keep a $5 million real estate development, his home worth $2 million, and hundreds of thousands (if not millions) of dollars in foreign bank accounts. In the end, the jurors selected in this case from rural Nevada "were no dupes." At the end of a six-week trial the jurors fully exonerated the defendant on all charges after only four hours of deliberations. When interviewed after the case, the foreperson said that in several straw polls, no juror voted to find the defendant guilty on a single count. (Excerpted from "Perjuring informers brought to the bar," at 35).


Jury Nullification.


JURY NULLIFICATION: what prosecutors and judges don't want the public and prospective or current jurors to know.

When a citizen of our country is charged with a crime by federal or state prosecutors, there is a crucial check standing between the accused and the full might of the government along with the pitiless, inherent imbalance of power in criminal proceedings in general: the jury.  Trial by jury is seen as the truth-seeking process to determine guilt or innocence.  The criminal justice system, though, is stocked with former prosecutors now in judicial positions, along with highly technical rules of evidence that most jurors couldn't possibly comprehend. Taken together with the reality that most defendants lack the resources to battle the government on equal ground, which often prevents a defendant from presenting a viable defense, a jury of one's peers is the last safeguard between the defendant and a tyrannical government.
Judges instruct juries before they deliberate that they have a duty to follow the law as instructed by the court­—this, of course, is misleading—and furthermore omits the jury's power to nullify which has been characterized as an aspect of the jury's role in representing the community, a check on overbroad, unjust, or improperly applied laws, and a necessary mechanism for civil disobedience.  During the course of a trial, prosecutors and judges strive to conceal that "[w]hile juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so."  Quoting United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996); see also United States v, Carr, 424 F.3d 213, 219-220 (2d Cir. 2005)("Nothing in our case law begins to suggest that the court cannot also tell the jury affirmatively that it has a duty to follow the law, even though it may in fact have the power not to.")(emphasis added).



The common law jury has the absolute power to nullify, that is, act as judge of the law and the facts and render a verdict based on what it thinks is right.  "Jury nullification" is defined as:
"A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness."
Quoting Black's Law Dictionary, 989 (10th ed 2014).  Some examples of a jury's use of nullification may (1) result from a belief that the conduct at issue should not be criminalized, or, under the circumstances, should be legally defensible; (2) that the prosecutor's actions in investigating the defendant were excessive or outrageous; (3) that the law was extended or misapplied against this defendant because of his membership or association with a group continually harassed and targeted by over-zealous law enforcement; (4) that the crime victim(s) were in actuality the true instigators, or unbelieving; (5) that the defendant's conspirators who gained immunity to testify deserved to be prosecuted instead; (6) that the defendant's political goals or safe-guarding himself (and/or his friends and family) in violating the law are sympathetic or, even if not, were pursued by him with admirable integrity; and (7) that a guilty verdict will create racial strife more disturbing to the rule of law than an undeserved acquittal.
Jury nullification is also a consequence of "the great flood of exonerations" and "glaring truth that some prosecutors cheat and even break the law. It has been proved, repeatedly, that prosecutors across the U.S. have (1) concealed evidence that would benefit the accused; (2) fabricated evidence that would convict the accused; (3) made false statements to judges, juries and defense attorneys; (4) offered perjured testimony; (5) cut sleazy deals with jailhouse informants who will testify to anything in return for leniency; (6) employed junk-science 'experts' who mislead jurors; and (7) intimidated witness." Quoting John Grisham, THE WALL STREET JOURNAL, Consequences for Unethical Prosecutors, A16 August 13, 2018.

Juries have a right to send out questions during their deliberations to a trial judge requesting clarification concerning "the law on jury nullification." See e.g., United States v. Sepulveda, 15 F.3d 1161, 1189-1190 (1st Cir. 1993). In United States v. Bunchan, 626 F.3d 29, 33 (1st Cir. 2010), the trial judge said to the jury:
"So, Ladies and Gentleman, let's turn to how you go about your business. As I told you, you don't have to follow my instructions anymore; in fact, that's the critical part of this. We expect you to, but, then, we send you into a room, we close the door, and we can't tell whether or not you're doing what we ask you to do."
(Id.). In the end, courts have long recognized the undisputed power of the jury "to set an accused free for any reason or for no reason," see supra, 15 F.3d 1190, even if its verdict is contrary to the law as given by the judge and contrary to the evidence.  If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justifies the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by their decision.






Washington Post article about Outlaws member Grasshopper 1%er

Twenty-one years into his nearly 50-year sentence, the graying man steps inside his stark cell in the largest federal prison complex in America. He wears special medical boots because of a foot condition that makes walking feel as if he's "stepping on a needle." He has undergone tests for a suspected heart condition and sometimes experiences vertigo.

"I get dizzy sometimes when I'm walking," says the 63-year-old inmate, Bruce Harrison. "One time, I just couldn't get up."




In 1994, Harrison and other members of the motorcycle group he belonged to were caught up in a drug sting by undercover federal agents, who asked them to move huge volumes of cocaine and marijuana. After taking the job, making several runs and each collecting $1,000, Harrison and the others were arrested and later convicted. When their sentences were handed down, however, jurors objected.


"I am sincerely disheartened by the fact that these defendants, who participated in the staged off-loads and transports . . . are looking at life in prison or decades at best," said one of several who wrote letters to the judge and prosecutor.


In recent years, federal sentencing guidelines have been revised, resulting in less severe prison terms for low-level drug offenders. But Harrison, a decorated Vietnam War veteran, remains one of tens of thousands of inmates who were convicted in the "war on drugs" of the 1980s and 1990s and who are still behind bars.


Harrison's crammed cell at the Federal Correctional Complex Coleman in Florida near Orlando is devoid of the clutter of life on the outside. The space he shares with another inmate has only a sink, a toilet, a bunk bed with cots, a steel cabinet, two plastic gray chairs, a desk and a bulletin board with a postcard of a Florida waterspout.


From a tiny window, he can see Spanish moss draped over trees in the distance.


Forty-five years ago, Harrison served with the Marines in Vietnam. A machine gunner, he was shot twice and was awarded two Purple Hearts. When he came back, he felt as though he had nowhere to turn. He later joined a motorcycle group known as the Outlaws.


Today, prisoners age 50 and older represent the fastest-growing population in federal correctional facilities.


Harrison was approached by an undercover agent who was part of a law enforcement team trying to bring down the group, which had been suspected of illegal activity. He and fellow members of the club were offered a kilogram of cocaine to offload and transport drugs. He declined, saying none of them wanted to be paid in drugs.


"I didn't want drugs, because I really wouldn't have known what to do with them," Harrison said in an interview. "We didn't sell them."


But Harrison and the others took the job because the agents offered cash, and they needed the money. Over a period of several months, they would move what they believed to be real drugs more than 1,400 kilos of cocaine and about 3,200 pounds of marijuana.


Harrison carried a gun for protection during two of the offloads. He didn't use it, but after authorities arrested him and fellow members of his group, he was charged with possessing a firearm while committing a drug offense.


His 1995 trial in Tampa lasted four months. His lawyer at the time argued that "this was a government operation from beginning to end. . . . Everything was orchestrated by the government. . . . He was not a leader. The only leaders in this case, the only organizers in this case was the United States government."


The jury, nonetheless, found Harrison and the others guilty of transporting the drugs.


Harrison was sentenced to roughly 24 years for possessing cocaine and marijuana with the intent to distribute. The conviction on the firearms charge carried a 25-year penalty, meaning he is effectively serving a life sentence.


'I am sincerely disheartened'


"There's no doubt that that's a harsh penalty," said U.S. District Judge Susan C. Bucklew during the sentencing hearing. "But that's what the statute says, and I don't think I have any alternative but to do that."


"I don't have a whole lot of discretion here," she said at another point.



After Harrison and the others were sentenced, several of the jurors expressed shock to learn how long those convicted were to spend behind bars.

"If I would have been given the right to not only judge the facts in this case, but also the law and the actions taken by the government, the prosecutor, local and federal law enforcement officers connected in this case would be in jail and not the defendants," juror Patrick L. McNeil wrote.


Six jurors signed a letter requesting a new trial be ordered, saying that if they had been told by the court that they could have found that the government had entrapped the defendants, they would have found them not guilty.

"Bruce Harrison had never been involved in unloading drugs," said his current lawyer, Tom Dawson. "He didn't arrange for any of these drugs. The government did."


Andrea Strong, a childhood friend of Harrison, said he doesn't claim to have been a saint.


"But, in a compassionate world, this man would not be less than halfway through a sentence for a drug offense that happened 20 years ago," Strong said.. "He would've done his time, paid his debt to society, and be released to his network of supportive family and friends."


Along with tens of thousands of other inmates around the country, Harrison is applying for clemency under the Obama administration's program to release drug offenders who have been in prison for at least 10 years and whose cases meet certain criteria.


"If I got out, I'd go back home and be with my three grandkids and help them out," Harrison said.


Excerpts from "Aging population takes toll on U.S. prisons", by Sari Horwitz, Washington Post; photos by Nikki Kahn.