IN THE UNITED STATES DISTRICT COURT,
MIDDLE DISTRICT OF FLORIDA,
ORLANDO DIVISION

RE:
MARK E. SCHMIDTER and JULIAN HEICKLEN,
Plaintiff(s)

v.

STATE OF FLORIDA
Defendant

CASE #: 6:12-CV-1102-ORL-31-KRS

Heicklen and Schmidter v. State of Florida
Appellate Case # 5D113036
changed to 6:12-cv-01102-RBD-KRS

Re: Ninth Judicial Circuit Court of FL,
 in and for Orange and Osceola Counties
Case # 48–2011–CF–8856–O


NOTICE OF MOTIONS
MOTION FOR TEMPORARY RESTRAINING ORDER
MOTION FOR RESPONSE DATE

_________________
Julian Heicklen
Plaintiff
Counsel Pro Se
36 Rachel Immenu #2
Jerusalem, Israel   93228
E-mail: jph13@psu.edu

______________
Date       

MOTION FOR TEMPORARY RESTRAINING ORDER

A. HISTORY

1. Plaintiff Heicklen moves for a temporary restraining order on the Circuit Court for the Ninth Judicial Circuit in and for Orange County, Florida.  
2. The history leading to this request is the following.
3. Plaintiff was found guilty of criminal contempt in CASE NO.: 5D11-2588 5D11-3036 for violating two court orders issued by Chief Judge Belvin Perry, Jr. of the Circuit Court for the Ninth Judicial Circuit in and for Orange County, Florida.
4. The Order and Judgment has been submitted to the U. S. District Court.  For convenience, it is also listed at: http://www.personal.psu.edu/faculty/j/p/jph13/Order_and_judgment_9_2_11.html
5. On appeal THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, IN AND FOR THE FIFTH JUDICIAL DISTRICT ruled the original trial to be void for procedural reasons, but said that it could be retried.
6. That ORDER also has been submitted to the U. S. District Court.  For convenience, it is listed at: http://www.personal.psu.edu/faculty/j/p/jph13/FL_appeals_court_opinion_12-21-12.html
7. Plaintiff Heicklen has filed a 42 U.S.C. 1983 claim with this U. S. District Court claiming that his First Amendment right to free speech has been denied and that no further prosecution should occur.
8. Plaintiff received a NOTICE OF ARRAIGNMENT by E-mail on February 8, 2013 to appear for an arraignment on February 21, 2013, to retry the contempt charge of distributing pamphlets on the courthouse plaza.
9. The NOTICE OF ARRAIGNMENT is given in Exhibit A.
10. The text does not say whether the retrial will be for criminal or civic contempt.
11.  However the case number is the same as for the original trial which was for criminal contempt.

12. Presumably, since the case number is unchanged, the retrial will be for criminal contempt,
13. The CERTIFICATE OF SERVICE claims that a printed original document has been sent by regular post office mail on the same date.
14. As of February 14, 2013, Plaintiff Heicklen has not received such a document.

B. REASONS FOR A RESTRAINING ORDER

a. Prohibit double jeopardy
15. If the case is retried it places Plaintiff in double jeopardy, in violation of Amendment V of the U. S. Constitution.  A full discussion of double jeopardy appears in Exhibit B.
16. AMENDMENT V of the U. S. Constitution states in part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .”
17. The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment.[Serfass v. United States, 420 U.S. 377 (1973).]
18. Jeopardy "attaches" when the jury is empaneled in a jury trial, when the first witness is sworn in during a bench trial, or when a plea is accepted unconditionally [United States v. Scott, 437 U.S. 82 (1978)].
19. Double jeopardy applies to felony offenses.
20. Whether a crime is "infamous" is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed; Wilson v. United States, 420 U.S. 332 (1975).]
21. When the hearing convened in UNITED STATES v. COHN, No. 07-13479. -- September 30, 2009, the court informed the parties of its determination that Cohn's offense was a crime of criminal contempt pursuant to 18, U.S.C., Section 401(1), that is a Class A felony and, therefore, the statutory penalty would be life imprisonment, a maximum term of life imprisonment, probation would not be authorized, the maximum fine would be $250,000, supervised release would not be greater than five years, and there would be a mandatory special assessment of $100.
22. Therefore criminal contempt is subject to double jeopardy protection.
23. Heicklen cannot be retried, because he has Amendment V protection.

b. Hecklen cannot be retried for criminal contempt

24. In the event that the court rejects the above argument, Heicklen cannot be retried for criminal contempt.
25. Criminal contempt only applies if the contempt takes place in front of the judge or violations of  2 or more court orders occur.
26. The violation of the court orders did not occur in the presence of the judge.  In fact they did not occur inside the courthouse.
27. Originally two court orders were involved.
28. ADMINISTRATIVE ORDER 2011-03 is valid,, if it applies to a non-public forum.
29. ADMINISTRATIVE ORDERS # 2011-07 and # 2011-07-01 were found to be unconstitutional by the Florida Appeals Court.
30. So only one court order could be involved.
31. Any contempt proceeding would need to be for civil contempt.
32. The trial case number would have to be changed to reflect a civil case.

c. ADMINISTRATIVE ORDER 2011-03 also is unconstitutional
33. In his third claim, Judge Perry stated that in United States v. Grace, 461 US 171 (1983), the Supreme Court upheld U. S. Statute 40 U. S. C. § 13k which permits banning pamphleteering on court plazas.    
34. Actually the Supreme Court declared that statute unconstitutional.
35. Furthermore the Court proclaimed that free speech on court plazas could not be banned by court order, but only “...that those sidewalks, like other sidewalks, are...subject to reasonable time, place, and manner restrictions, either by statute or by regulations issued pursuant to 40 U. S. C. § 13l.”
36. The court concluded:
“But here it is clear that the practice in Baton Rouge allowing unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of appellant's freedom of speech and assembly secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment. It follows, therefore, that appellant's conviction for violating the statute as so applied and enforced must be reversed.”

“For the reasons discussed above the judgment of the Supreme Court of Louisiana is reversed.”

“Based on its provisions and legislative history, it is fair to say that the purpose of the Act was to provide for the protection of the building and grounds and of the persons and property therein, as well as the maintenance of proper order and decorum. Section 6, 40 U. S. C. § 13k, was one of the provisions apparently designed for these purposes. At least, no special reason was stated for its enactment.”

“We thus perceive insufficient justification for § 13k's prohibition of carrying signs, banners, or devices on the public sidewalks surrounding the building. We hold that under the First Amendment the section is unconstitutional as applied to those sidewalks. Of course, this is not to say that those sidewalks, like other sidewalks, are not subject to reasonable time, place, and manner restrictions, either by statute or by regulations issued pursuant to 40 U. S. C. § 13l.”

37.  JUSTICE MARSHALL, concurring in part and dissenting in part:

“I would hold 40 U. S. C. § 13k unconstitutional on its face. The statute in no way distinguishes the sidewalks from the rest of the premises, and excising the sidewalks from its purview does not bring it into conformity with the First Amendment. Visitors to this Court do not lose their First Amendment rights at the edge of the sidewalks any more than "students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent Community School District, 393 U. S. 503, 506 (1969). Since the continuing existence of the statute will inevitably have a chilling effect on freedom of expression, there is no virtue in deciding its constitutionality on a piecemeal basis.”

38. Therefore ADMINISTRATIVE ORDER 2011-03 is void, and there is no basis for a contempt trial.

d. Unequal enforcement
38. Another reason for dismissing this case is unequal enforcement.
39. Others in the same location and time were freely distributing business cards, instruction sheets, newspapers, and other papers to each other.
40. The deputy sheriffs served Plaintiff Heicklen with court the court orders in the forbidden area.

e. Case currently on appeal in US District Court
41. Case currently is on appeal in the U. S. District Court, Middle District of Florida, Orlando Division, Case No. 6:12-CV-1102-ORL-31-KRS.
42. No retrial should occur prior to a decision by that court.

D. CONTACT OF OTHER LITIGANTS

f. Time constraint
43. Since the retrial date is set for February 21, 2013, an immediate temporary restraining order is needed.
44.There is no time to consult opposing counsels before submission or action of the District Court.
45. Furthermore this document has no bearing on the appeal before the U. S. District Court.
46. However opposing counsels have been sent copies of this document.
47.The Court is not being asked to take permanent action with this request.
48. Thus there is still time for the opposing counsels to comment before any permanent action ensues.

E. MOTIONS

49. Plaintiff moves that a temporary restraining order be placed on the Ninth Judicial Circuit Court of FL, in and for Orange and Osceola Counties , Case # 48–2011–CF–8856–O, until the current case in the U. S. District Court is resolved.  

50. After the federal case is resolved, the U. S. District court has the option of either ending the temporary restraining order or replacing it with a permanent restraining order.
51. Plaintiff moves that the temporary restraining order be issued as soon as possible, preferably before February 21, 2013.


_________________
Julian Heicklen
Plaintiff
Counsel Pro Se
36 Rachel Immenu, #2
Jerusalem, Israel 93228
jph13@psu.edu

______________
Date       

AFFIDAVIT AND CERTIFICATE OF SERVICE

    Plaintiff Heicklen certifies under penalty of perjury, that PLAINTIFF’S NOTICE OF MOTIONS and MOTIONS are not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.  The sole purpose is to obtain relief from unwarranted early prosecution, so that Plaintiff can obtain his legal options.

    Plaintiff Heicklen further certifies that his NOTICE OF MOTIONS and MOTIONS were sent on February 14, 2013, to the following:

James Moses: jmoses@fisherlawfirm.com
John Edward Fisher: fisher@fisherlawfirm.com
Adam Sudbury: Adam.Sudbury@SudburyLaw.net
Mark Schmidter: mschmidter@gmail.com
Judge Belvin Perry, Jr, Ninth Judicial Circuit Court of FL, in and for Orange and Osceola Counties, 325 N. Orange Avenue, Orlando, FL 32801-1600
Baron Bail Bonds, 3708 S. John Young Parkway, Orlando, FL 32839



______________________
Julian Heicklen
Plaintiff
Counsel Pro Se
36 Rachel Immenu, #2
Jerusalem, Israel 93228
jph13@psu.edu

_____________________
Date       


EXHIBITS

Exhibit A: NOTICE OF ARRAIGNMENT

Exhibit B: Discussion of double jeopardy

Exhibit C: Letter of notification to others


EXHIBIT A


  Plaintiff Heicklen received the following E-mail on February 8, 2013
The NOTICE OF ARRAIGNMENT PAGE did not reproduce, so it has been retyped by Heicklen.
_________________________________

Subject:     SERVICE OF COURT DOCUMENT - Case No. 48-2011-CF-011399-O
    Date:     February 8, 2013 9:26:50 PM GMT+02:00
    From:     Berghorn, Robin <ctlcrb1@ocnjcc.org>
    To:     Julian Heicklen <jph13@psu.edu>, inbox@sudburylaw.net, Adam Sudbury <adam@sudburylaw.net>

Good Afternoon Mr. Heicklen and Mr. Sudbury:
 
Please find attached a Notice of Arraignment:
 
Court:  Ninth Judicial Circuit Court
Case No.:  48-2011-CF-011399-O
State of Florida v. Julian Heicklen
Notice of Arraignment
 
If each of you would acknowledge receipt of this email, I would appreciate it.  Thank you.
 
 
Robin S. Berghorn
General Counsel
Ninth Judicial Circuit
836-2233
  
________________________________________________________


IN THE CIRCUIT CORT FOR THE NINTH JUDICIAL
CICUIT IN AND FOR ORANGE COUNTY


STATE OF FLORIDA
CASE NO.: 48-2011-CF-011399-AO
        Petitioner

vs.

JULIAN HEICKLEN

        Defendant
_______________________________________

NOTICE OF ARRAIGNMENT

    THIS  CAUSE came before this Court pursuant to the Opinion rendered by the Fifth
District Court of Appeal on December 21, 2012, wherein it directed the Defendant herein may be retried for violating Administrative Order 2011-03.  Therefore, the Arraignment of said Defendant is set for February 21, 2013, at 9:30 a.m., in courtroom 19D in the Orange County Courthouse, 425 N. Orange Avenue, Orlando, florida 32801, before the Honorable Belvin Perry, Jr.  THE DEFENDANT MUST APPEAR AT THE ARRAIGNMENT.

    DONE AND ORDERED  a Orlando, Orange County, Florida, this 8th day of February, 2013.


(original signed by Belvin Perry, Jr.)
BELVIN PERRY, JR              .

Circuit Judge                           

___________________________________________________


Reconstructed page 2 of the E-mail:

CERTIFICATE OF SERVICE

    I hereby certify that a true and correct copy of the foregoing was furnished to Adam Sudbury, Attorney for Defendant, by email at: inbox@sudburylaw.net and adam@sudburylaw.net; to the Office of the State Attorney, 415 N. Orange Avenue, Orlando, Florida 32801, by hand delivery; to Julian Heicklen, 36 Rachel Immenu #2, Jerusalem, Israel 93288 by U. S. mail and by email at jph13@psu.edu, and to Baron Bail Bonds, 3708 S. John Young Parkway, Orlando, Florida 32839, by U. S. mail, on this 8th day of February, 2013.

Signed by the General Counsel, whose name is not readable.

    There followed instructions for a person with a disability, which does not apply to Plaintiff Heicklen.

EXHIBIT B

Exhibit B: Double jeopardy (http://en.wikipedia.org/wiki/Double_jeapordy)
Main article: Double Jeopardy Clause
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .[9]
The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment.[10] Jeopardy "attaches" when the jury is empaneled in a jury trial, when the first witness is sworn in during a bench trial, or when a plea is accepted unconditionally.[11]

Prosecution after acquittal
The government is not permitted to appeal or try again after the entry of an acquittal, whether a directed verdict before the case is submitted to the jury,[12] a directed verdict after a deadlocked jury,[13] an appellate reversal for sufficiency (except by direct appeal to a higher appellate court),[14] or an "implied acquittal" via conviction of a lesser included offense.[15] In addition, the government is barred by collateral estoppel from re-litigating against the same defense, a fact necessarily found by the jury in a prior acquittal,[16] even if the jury hung on other counts.[17]

This principle does not prevent the government from appealing a pre-trial motion to dismiss[18] or other non-merits dismissal,[19] or a directed verdict after a jury conviction,[20] nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute.[21] Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency,[22] including habeas,[23] or "thirteenth juror" appellate reversals notwithstanding sufficiency[24] on the principle that jeopardy has not "terminated." There may also be an exception for judicial bribery,[25] but not jury bribery.

Multiple punishment, including prosecution after conviction
In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not.[26] Blockburger is the default rule, unless the legislatively intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates,[27] as can conspiracy.[28]

The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction.[29] In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was not satisfied,[30] but Grady was overruled in United States v. Dixon (1993).[31]

Prosecution after mistrial
The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith," i.e. goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial.[32] If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial.[33] The same standard governs mistrials granted sua sponte.9.


  9. ^ Yeager v. United States, 557 U.S. 110 (2009).
10. ^ Serfass v. United States, 420 U.S. 377 (1973).

11. ^ United States v. Scott, 437 U.S. 82 (1978).
12. Wilson v. United States, 420 U.S. 332 (1975).
13. ^ Smith v. Massachusetts, 543 U.S. 462 (2005).
14. ^ Ball v. United States, 163 U.S. 662 (1896).
15. ^ United States v. Tateo, 377 U.S. 463 (1964).
16. ^ Tibbs v. Florida, 457 U.S. 31 (1982).
17. ^ Aleman v. Judges of the Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998).
18. ^ Blockburger v. United States, 284 U.S. 299 (1932). See, e.g., Brown v. Ohio, 432 U.S. 161 (1977).
19. ^ Garrett v. United States, 471 U.S. 773 (1985); Rutledge v. United States, 517 U.S. 292 (1996).
20. ^ United States v. Felix, 503 U.S. 378 (1992).
21. ^ Missouri v. Hunter, 459 U.S. 359 (1983).
22. ^ Grady v. Corbin, 495 U.S. 508 (1990).
23. ^ United States v. Dixon, 509 U.S. 688 (1993).
24. ^ Oregon v. Kennedy, 456 U.S. 667 (1982).
25. ^ Aleman v. Judges of the Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998).
26. ^ Blockburger v. United States, 284 U.S. 299 (1932). See, e.g., Brown v. Ohio, 432 U.S. 161 (1977).
27. ^ Garrett v. United States, 471 U.S. 773 (1985); Rutledge v. United States, 517 U.S. 292 (1996).
28. ^ United States v. Felix, 503 U.S. 378 (1992).
29. ^ Missouri v. Hunter, 459 U.S. 359 (1983).
30. ^ Grady v. Corbin, 495 U.S. 508 (1990).
31. ^ United States v. Dixon, 509 U.S. 688 (1993).
32. ^ Oregon v. Kennedy, 456 U.S. 667 (1982).
33. ^ Arizona v. Washington, 434 U.S. 497 (1978).
34. ^ From "Self-Incrimination, Privilege Against," Barrons Law Dictionary, p. 434 (2d ed. 1984).

Exhibit C

E-mail to: John Edward Fisher and James Moses
CC: Adam Sudbury and Mark Schmidter
Re: Schmidter and Heicklen v. State of Florida
CASE # 6:1–CV–1102–ORL–31–KRS

    I have submitted the attached MOTION FOR TEMPORARY RESTRAINING ORDER to the U. S. District Court, Middle District of Florida,, Orlando Division, without getting your response first, because of the urgency of the request.  These Motions have nothing to do directly with the issues at hand in our case in the U. S. District Court.

    I am requesting an immediate temporary restraining order, which always can be rescinded by the court at any later time, if you have reasonable suggestions.  However, you are welcome to comment on my Motions, if you wish to do so.  I will forward them to the court with my reply.