UNITED STATES DISTRICT COURT OF INQUISITION
SOUTHERN DISTRICT OF NEW YORK

United States of America
    Prosecutor
 Criminal Case # 10 Crim 1154
    v.    
                                                       
Julian Heicklen
    Defendant

MEMORANDUM OF LAW

AND

MOTIONS FOR DISMISSAL

 AND PROPERTY RETURN

__________________
Julian Heicklen
Defendent
Counsel Pro Se

_________________
Date

A. THE FACTS

Defendant was arrested several times at the U. S. Federal Courthouse in Manhattan, NY; once, in Springfield, MA; and once, in Newark, NJ for distributing literature on federal property without a permit in violation of Department of Homeland Security Regulation 41 C. F. R. §102–74.415(c).
All charges were dismissed by the federal attorneys in New York City.
In Newark, the U. S. Attorney has informed the judge that he will move for dismissal at the May 26, 2011 hearing (Exhibit A).
In Springfield, MA, Defendant did not pay the fine of $100.00 nor appear for his assigned court date.  Originally this was set improperly for  August 17, 2010, in Boston, MA.  The date was changed to September 10, 2010, in Springfield, MA (Exhibit B).
On August 27, 2010, Defendant responded that this date was unacceptable, because it was the Jewish holy day of Rosh Hashonah (Exhibit C).
The date was postponed about 1 month, but Defendant cannot locate the notice .(He needs a bookkeeper).
In any event, Defendant did not respond nor appear.
No further action has been taken by either the court or the federal attorney in Springfield, as far as Defendant knows.  Defendant considers this case to be moot.
The U. S. Attorney for New York filed a complaint of jury tampering with the Grand Jury.
 A Grand Jury hearing was held without Defendant’s appearance or knowledge in conflict with 18 U. S. C. § 1504. Influencing juror by writing.
 The Grand Jury issued an indictment for jury tampering (Exhibit D).
The indictment shows that the U. S. Attorney lied to the Grand Jury as follows:
JULIAN HEICKLEN, the defendant, attempted to influence the actions and decisions of a grand and petit juror of a court of the United states,...upon an issue and matter pending before such juror, and before a jury of which he was a member, and pertaining to his duties, by writing and sending to him a written communication ...”
 At the hearing of February 25, 2011, the Prosecutor was given 30 days to substantiate those claims.
 As of April 26, 2011, the defense has received no written statement substantiating any of those claims.
 No tainted jurors, or any jurors at all, have been identified to the defense.
The only information received from the prosecution is three videos of the incidents, in which no pedestrian making conversation with Defendant is shown.
A fourth video was submitted with the indictment and police records of arrests of Defendant.

B. HISTORY OF JURY NULLIFICATION

Jury nullification has a long and glorious history.  It is responsible for many of our freedoms.
The first case in which juries nullified a law was that of William Penn and William Mead in England in 1670.
The jurors refused to convict the two Quaker activists who participated in the unlawful assembly of  publicly practicing the Quaker religion.
That is how we obtained freedom of religion.
Jury nullification was introduced into America in 1735 in the trial of John Peter Zenger, Printer of  The New York Weekly Journal.
Zenger repeatedly attacked Governor William Cosby of New York in his journal.
This was a violation of the seditious libel law, which prohibited criticism of the King or his appointed officers.
The jury found Zenger not guilty.
This is how we obtained freedom of the press.
Several state constitutions, including the Georgia Constitution of 1777 and the Pennsylvania Constitution of 1790 specifically provided that "the jury shall be judges of law, as well as fact."
In the 1850s, northern juries refused to return fugitive slaves, who were the legal property of their owners.
Recent cases occurred in Washington, DC and LaSalle County Il  (http://www.examiner.com/civil-liberties-in-national/jury-nullification-at-work-marijuana-gun-cases).
In Washington, D.C., a jury ignored a military veteran's obvious violation of the city's draconian gun laws, setting him free with only a slap on the wrist.
In LaSalle County, Illinois, a medical marijuana user found with 25 pounds of the plant didn't even get the slap; jurors chatted with him after finding him not guilty.
More lengthy discussions of jury nullification can be found at:
Doug, Don and Rhodes, Stewart,  “Guerrilla Jurors: Sticking it to Leviathoan” (2011) http://www.lewrockwell.com/orig12/doig1.1.1.html
Heicklen, Julian “The Non-Trials” Ch. VI, Ishi Press (2011)
Linder, Doug “Jury Nullification” (2001) (http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html)
Kennedy, Randall “Racial Conduct by Jurors and Judges: The Problem of the Tainted Conviction,” pp. 277-282, and “Black Power in the Jury Box?” pp. 295-310, Race, Crime and the Law (1997).
Duane, James “Jury Nullification: The Top Secret Constitutional Right” 22 Litigation No. 4, 6 (Summer 1996) (lead article).
Emal, Russ “Jury Nullification” (1996) (http://www.greenmac.com/eagle/ISSUES/ISSUE23-9/07JuryNullification.html
Green, Thomas Andrew. “Verdict According to Conscience: Perspectives on the English Criminal Trial Jury” 1200-1800 (1985), Introduction, pp. xiii-xx, and especially Ch. 6 "The Principle of Non-Coercion: The Contest over the Role of the Jury in the Restoration," pp. 200-264.
Katz, Stanley Nider, (Ed.). "Introduction," pp. 1-33, in James Alexander, “A Brief Narrative of the Case and Trial of John Peter Zenger Printer of the New York Weekly Journal” (1972).

C. THE LAW

18 U. S. C. § 1504. Influencing juror by writing

      Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

      Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury.

                                AMENDMENTS                            
    
 1994 - Pub. L. 103-322 substituted "fined under this title" for "fined not more than $1,000" in first par.

Last modified: April 13, 2006

D. PREVIOUS COURT OPINIONS

In Morissette v United States 342 US 246 (1952), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated:
"Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter."

In U. S. v Dougherty, 473 F 2nd 1113, 1139 (1972), the Court said:
"The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."

Likewise, the U. S. Supreme Court in Duncan v. Louisiana 391 US 145 (1968) implicitly endorsed the policies behind nullification when it stated:
"If the defendant preferred the common-sense judgment of the jury to the more tutored but less sympathetic reaction of the single judge, he was to have it."

E. PREVIOUS CASE FOR DISTRIBUTING PAMPHLETS

The only previous case known to Defendant of a distributor of Fully Informed Jury Information literature being tried for jury tampering is that of United States v. Yvonne Regas in the U. S. District Court of Northern Nevada in 1994.
What follows is a portion of the brief filed by attorney Nancy Lord, MD, in the case of U.S. v. Yvonne Regas in the U. S. District Court of Northern Nevada. Regas was accused of jury tampering and related charges for causing FIJA (Fully Informed Jury Association) "True or False?" brochures to be placed on automobile windshields around the federal courthouse in Reno, Nevada during the trial of her son and ex-husband on drug charges.
This represents the first time federal criminal charges were filed against a "fully informed jury" activist. The case ended in a dismissal, offered Ms. Regas as a pre-trial diversion, within a few days of this brief being filed. Since that time, a "hands-off" policy seems to be in effect at most federal courthouses around the nation when activists show up to distribute literature. Thus, even though this case never went to trial, and therefore never gave rise to case law, the brief itself appears to have had a positive effect upon judicial appreciation of the First Amendment's protection of free political speech.
Statement above (slightly modified) plus the the pertinent part of the brief filed by Nancy Lord appears at:
Jury Power Page http://www.famguardian1.org/Subjects/LawAndGovt/LegalEthics/JuryTampering.htm20.

F. DISPOSITION OF THIS CASE

The Prosecution has not produced any tainted jurors, nor identified any of them, nor produced any written messages sent to them, nor substantiated any of the claims in the indictment.
Defendant distributed pamphlets, which is not listed as a criminal offense in 18 U. S. C. § 1504. Influencing juror by writing.
Therefore Defendant moves to dismiss the case.
Furthermore Defendant moves that all of his confiscated property be returned.
For all the arrests, his JURY INFO sign and pamphlets were confiscated.
Additional property was seized in the arrest of May 25, 2010.  The confiscated property is listed in Exhibit E.

G. EXHIBITS

Exhibit A: Letter of April 1, 2011, of Assistant U. S. Attorney Jose R. Almonte to Magistrate Judge Anthony R. Mautone indicating intention to move for dismissal of criminal case in Newark, NJ on May 26, 2011.

Exhibit B: Letter from Thomas A. Sheerin, District Commander, Prosecutor MA/40, postponing trail date and moving trial to Springfield, MA.

Exhibit C: Letter from Defendant to Clerk of Court, U. S. District Court in Springfield, MA indicating that new trial date is unsatisfactory because it is Rosh Hashonah, a Jewish holy day.

Exhibit D: Indictment.

Exhibit E: List of property seized by federal police on May 25, 2010.

CERTIFICATE OF SERVICE

I, Julian Heicklen certify that MEMORANDUM OF LAW AND MOTIONS FOR DISMISSAL  AND PROPERTY RETURN and MOTION papers were sent on April 29, 2011, by certified U. S. mail to the following:

Pro Se Clerk, Room 230, U. S. District Court of Inquisition, Southern District of New York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007

Judge Kimba Wood, U. S. District Court of Inquisition, Southern District of New York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007

Rebecca Mermelstein, Assistant U. S. Attorney, Southern District of New York, 300 Quarropas Street, White Plains, NY 10601

Federal Defender Sabrina Shroff, 52 Duane Street, 10th Floor, New York, NY 10007


____________________
Julian Heicklen
Defendant
Counsel Pro Se


___________________
Date