STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Case # 10 CR 1154 (KMW)
REPLY TO GOVERNMENT’S MEMORANDUM OF LAW IN RESPONSE TO
Counsel Pro Se
On page 4 Title 18 U. S. C. §1504 it is said to state that it
is a crime to send or write any written communication to a juror
concerning his or her case.
Defendant never sent nor wrote anything to any jurors. He handed
out pamphlets indiscriminately to any passersby without advising them
what to do.
Because the literature was not written TO the juror, it was a
general distribution of information, not personally addressed to the
juror. The statute says "writing or sending to him any written
communication," not handing it to him. While it's a technical
difference, it's an important one.
A person can mail things anonymously, or pose as someone else.
Defendant acted publicly, did not involve the mails or other common
carriers, and did not SEND or WRITE anything to a juror. Therefore the
government cannot use this statute. (Thanks to attorney Clay S. Conrad
for pointing this out.)
If a juror receives a written or sent document, it was forced on
him. If there is a crime, it was committed by the writer or
sender. The juror is only complicit, if he does not notify the
However if the juror willfully accepts a pamphlet, it is he who
has committed any criminal action, because the decision was his.
In the current case, the juror cannot even claim ignorance of the
information in the pamphlet, because Defendant prominently displayed a
sign that said “JURY INFO.”
1504 is Constitutional As Applied to Heicklen
A. Jury Does Not Have The Right To
On page 5 the U. S. Attorney claims that “ The defendant
acknowledges that the Government is empowered to criminalize or
regulate certain forms of speech,...” This statement is not true.
Defendant does not recognize that the government can regulate speech.
If a crime is committed, the speech may make the individual an
accessory to the fact. However if no crime is committed, the
person cannot lawfully be tried for any speech.
On page 5 of the U. S. Attorney’s brief, it states:
“The Second Circuit flatly rejected the hypothesis that advising
a witness to do that which he possessed a constitutional right to do
could not be criminalized.”
This argument is irrelevant for 3 reasons:
Defendant was not advising nor informing witnesses what to do.
Defendant was not advising jurors what to do. Defendant was only
informing them of their right to do something. Defendant never
suggested that they take such action in any particular case.
Title 18 U. S. C. §1504 states that it is unlawful to
influence the action of any grand or petit juror.
However the example sited does not involve a juror. It
involves an undercover agent who is not a juror. Therefore the
statute is not applicable. Furthermore the U. S. Attorney’s
office is guilty of attempted entrapment.
On page 5, the government’s Memorandum states that:
“The Defendant is wrong” when he advocates jury
nullification. This statement defies the reality that any
government agent, of which a jury is one, can and does nullify the law.
The legislature can always repeal a law.
The President can always pardon a prisoner.
The U. S. prosecutors regularly dismiss cases in the interest of
justice. In fact they are required to do so.
The U. S. Attorney does not work for the Department of Law.
She works for the Department of Justice.
The inscription on the wall of the Department of Justice building
in Washington states: “The United States wins its point whenever
justice is done its citizens in the courts.”
Prosecutors regularly dismiss cases in the interest of justice.
When Defendant lived in Centre County, PA, he was arrested twice
for smoking marijuana in front of the Centre County Court of Common
Pleas and announcing on a bullhorn what he was doing. The
district attorney dismissed the cases in the interest in justice.
In 2007, Defendant was arrested for refusing to follow the order
of a police officer to move. The case was dismissed in the
interest of justice by the New York County District Attorney.
Judges also dismiss cases in the interest of justice. After
Defendant’s 15th arrest in Centre County, PA, Chief Judge Charles
Brown, Jr. ordered the police to never arrest him and bring him into
court again. He had absolute immunity in Centre County, PA.
He continued to smoke marijuana for one hour at noon every
Thursday for three years in front of the main gate at Penn State
University in downtown State College, PA and announce what he was doing
on an electronic bullhorn. He also did this on a few
occasions near the football stadium before a football game.
Police and undercover agents from the state observed his behavior,
but did not interfere nor arrest him.
When he organized a house seizure as Action Chairman for the Los
Angeles Congress of Racial Equality (CORE) in 1962, the CORE activists
were arrested for trespassing.
The judge dismissed the case in the interest of justice and placed
the builder of the homes under a court order to stop discrimination
against minorities in the sale of houses.
Supreme Court members are not called “Justices” for no
reason. It is to remind them that their duty is to dispense
justice, not necessarily to uphold the law.
The police are not required to uphold the law. They operate
on what is called discretion.
If an individual is stopped by a police officer for a traffic
violation, the officer often gives a warning rather than a
ticket. If he does so, he has nullified the law. This has
happened to Defendant on more than one occasion. Once he did not
even get a warning.
The idea that a court’s duty is to dispense justice is at
least 3200 years old. In the Old Testament, the judges are
ordered: “Justice, Justice, thou must pursue” [Deuteronomy,
Mount Sinai Press, Ch. 16: verse 20 (1230 BC)].
It was introduced into Hellenistic law and has been a part of
English law since the ninth century (A Brief Exposé on
Sovereignty, Extracts from DEMOCRACY
DEFINED ISBN 9781902848228 © by Kenn d'Oudney):
Athenian Constitution of government by Trial by Jury was a conspicuous
landmark in human history for constitutionally establishing the Trial
by Jury mode of justice. To recapitulate the facts, the aristocrat
Cleisthenes is to be credited with the creation of mankind’s
first democracy in 508/7 B.C.E. He brought acknowledgement to the need
to spread empowerment throughout society in order to promote equal
justice, liberty, peace and prosperity, by devolving power to all
citizens (the males; and not foreigners), including the poorest, the
thetes, by recognising their inherent human rights, exousia.”
included the right to attend, debate and vote in the national assembly
on laws and measures (referenda); the right of the accused to a Trial
by Jury; and, crucially, the empowerment of citizens by bestowing on
them judicial authority in the Trial by Jury in which laws and measures
passed by legislatorial majorities in the assembly could be judged,
overruled and annulled whenever this was deemed by the Jurors necessary
to serve justice, liberty, and the interests of the people. (See
co-author of the U.S. Constitution, Justice James Wilson, Works, Vol.
2, chap. VI.)”
England’s King Alfred, 871 - 899, recognized and upheld the
established right and duty of jurors to find the verdict according to
their convictions and judgement. The Principles of Unanimity, Random
Selection and Impartiality were understood, and definitively and
constitutionally established by King Alfred the Great in the following
The jury has the same obligation as other agents of
government. The instructions that judges give to jurors that they must
uphold the law as he or she gives it is nonsense. If the jurors
decide to uphold the law, it is the written law as passed by the
legislature, not the often incorrect law as given by the judge.
This trial is a perfect example of the difference. The law
of the land requires a jury trial for all criminal cases, but Judge
Wood refuses to acknowledge it. Judge Wood took an oath of office
to uphold the U. S. Constitution, not the U. S. Supreme Court.
Unless a jury receives a written copy of the law or laws in
question, it is obligated to vote not guilty on the grounds of
reasonable doubt (not jury nullification).
If the jury decides to dispense justice rather than uphold the law
in a particular case, there is a large body of legal opinion and
decisions to support such an action. Our history is filled with
them. The most comprehensive history of jury nullification in the
United states is given by Thomas Regnier, Santa Clara Law Review, 51,
No. 3, pp. 775–852 (2011).
The power of nullification has been uniformly recognized by
courts. See United States v. Boardman, 419 F.2d 110 (1st Cir., 1969);
Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981); United States v.
Kzyske, 836 F.2d 1013 (6th Cir. 1988); United States v. Dougherty,
infra; United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972); United
States v. Wiley, 503 F.2d 106 (8th Cir. 1974); United States v.
Trujillo, 714 F.2d 102 (11th Cir. 1983); State v. Butler, 153 S.E.2d 70
The 1895 decision in Sparf v. United States, 156 US 51 (1895)
written by Justice John Marshall Harlan held 5 to 4 that a trial judge
has no responsibility to inform the jury of the right to nullify
laws. However it did not deny the jury’s right to nullify.
In United States v. Moylan; U.S. Fourth Circuit Court of
Appeals,...” , 417 F. 2d 1002 (1969), the court ruled:
"If the jury feels the law is
unjust, we recognize the undisputed power of the jury to acquit 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 justified 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
As recently as 1972, the U.S. Court of Appeals for the District of
Columbia said that the jury has an "unreviewable and irreversible
power... to acquit in disregard of the instructions on the law given by
the trial judge....” [US vs Dougherty, 473 F 2d 1113, 1139
A 1940 speech given by Justice Robert Jackson when he served as
Attorney General, that describes the greatest danger of the abuse of
prosecutorial power. His words are worth repeating here for they really
refer to the [Rubashkin] case. Professor Ronald Rotunda wrote at
the brief’s conclusion:
“‘With the law books filled with a great assortment of
crimes, a prosecutor stands a fair chance of finding at least a
technical violation of some act on the part of almost anyone. ‘In
such a case, it is not a question of discovering the commission of a
crime and then looking for the man who has committed it. It is a
question of picking the man and then searching the law books, or
putting investigators to work, to pin some offense on him. ‘It is
in this realm — in which the prosecutor picks some person whom he
dislikes or desires to embarrass, and then looks for an offense, that
the greatest danger of abuse of prosecuting power lies. “It is
here that law enforcement becomes personal, and the real crime becomes
that of being unpopular with the governing group.’”
--Robert Jackson, The Federal Prosecutor, Address Delivered at the
Second Annual Conference of United States Attorneys, April 1, 1940
The current case is a perfect example of what then attorney
general Jackson discussed. The prosecution has been unable to
produce a crime involving either a witness or an injury. It even
has been unable to show criminal intent with two undercover agents, one
in Manhattan and one in White Plains.
It is obvious that the U. S. attorneys have chosen an individual
that they want to punish rather than a crime that must be prosecuted.
Furthermore they have lied to a Grand Jury and denied the
Defendant his right to appear before the Grand Jury.
Crimes have been committed by the U. S. attorneys and their
undercover agents, and they should be punished.
Consider Harlan F. Stone, U.S. Chief Justice 1941-1946, on the
Juror’s Duty in the authentic Trial by Jury (Harvard Law Review),
"If a juror feels that the statute
involved in any criminal offence is unfair, or that it infringes upon
the defendant’s natural God-given unalienable or Constitutional
rights, then it is his duty to affirm that the offending statute is
really no law at all and that the violation of it is no crime at all,
for no one is bound to obey an unjust law."
At the end of page 5 and on page 6 of U. S. Attorneys response
memorandum states that: “In any event, the defendant is
also incorrect in his view that he has the right to tell jurors to lie
to a judge in order to be seated on a jury, to disobey judge’s
legal instructions, and to acquit even if the juror believes defendant
to be guilty.” This statement is incorrect for several
He does have the right to tell lies to jurors, his wife, or anyone
else. Lying, in itself, is not criminal. In fact Jewish law
sanctions lying in order to keep peace.
He does not advocate lying in order to be seated on a jury.
No instance has been given where this has occurred. He does encourage
members of a jury pool to be careful in their replies and to provide a
minimum of information. Defendant’s view is that a
potential juror should answer a non-identifying questions with yes, no,
I do not know, or I choose not to answer that question (with or without
Defendant does not ask jurors to disobey a judge’s legal
instructions. He does inform them they have the duty to disobey
illegal instructions given by the judge, as discussed above. Even
if you disagree with this view, it is not criminal. The law does
not force anyone to conform to other people’s illegal
wishes. Furthermore if you believe that you should follow
anyone’s illegal instructions you are participating in criminal
Defendant does not instruct anyone to vote to acquit if the juror
believes the defendant to be guilty beyond a reasonable doubt. He
does inform jurors that it is not their duty to uphold the law.
It is their duty to see that justice is done. For example, if
Defendant was a juror on the O. J. Simpson murder trial, he would have
voted not guilty with the rest of the jurors, even though he believe
Simpson committed the murder. This decision has nothing to do
with jury nullification. Defendant does not wish to nullify
murder laws. It has to do with the fact that the prosecution did
not prove its case at all, not just beyond a reasonable doubt.
On page 6, U. S. Attorney quotes Sparf v. U. S. 156 U. S. 51,
102(1895) that it is the jury’s duty “to take the law from
the court.” This statement is another failure of the courts to
understand that they do not have the Constitutional authority to make
law. Legislatures do.
When jurors decide to uphold the law, it must be the written law
in the statute, not the judge’s often incorrect version of it.
If the jury is not provided with the written law, it should always
vote not guilty, not because of jury nullification, but because of
reasonable doubt. If a judge will not provide a copy of the
written statutes, there must be reasonable doubt.
The courts refuse to acknowledge the function of a jury. It
is the only impartial participant in the trial.
Of course both the prosecution and defense are not partial. The
judge is supposed to be impartial, but often is not.
In both the O. J. Simpson trial and the recent trial of Casey
Anthony in Orlando, the general population and press were screaming for
a guilty verdict. The not guilty verdicts did not help the
reputations or careers of the judges.
If there were not a jury, it is very likely that guilty verdicts
might have been given (perhaps even correctly, but certainly not
unbiased). Yet 12 people, who had no stake in the matter in each
case voted unanimously not guilty.
They may have been wrong, but no-one has questioned or even
suspects a lack of integrity. That is more important than a
correct decision in a particular case.
In the second paragraph on page 6, the U. S. Attorney quotes
United States v. Thomas 116 F.3d 606 614 (2d Cir. 1997) that jury
nullification “is, by definition, a violation of a juror’s
oath to apply the law as instructed by the court.” It may
be a violation, but no-one is obligated to obey an illegal request.
She also quotes the Second Circuit statement that
“categorically rejected the idea that, in a society committed to
the rule of law, jury nullification is desirable or that courts may
permit it to occur when it is in their authority to prevent it.”
Again the Second Circuit Court has overreached its
authority. Courts cannot reject ideas. They may disapprove
of them, but it is not in their authority to reject them.
Furthermore our society is not committed to a rule of law.
Who made that one up? Our society is supposed to be committed to
a rule of justice, not law.
Furthermore, even if it were true that we were committed to a rule
of law, it is not in the authority of the court to prevent the
jury’s violation. That is the reason why jury discussions
are kept (or supposed to be) secret from the courts or anyone else.
It is the judiciary’s grab for powers and authority that it
was not supposed to have that has destroyed the legal system in this
country. Not many believe that the courts deliver justice.
The courts no longer understand that it is their duty to deliver
justice. Some lawyers that the Defendant has talked with or read have
admitted that the legal system is nothing more than a game.
Lawyers have informed the Defendant that going into law was
the mistake of their life, but now they are stuck in this profession.
Lawyer jokes are rife among the general population. Even
lawyers tell them.
Except for politicians, who are mostly lawyers, no other
profession has a worse reputation.
On page 7, the U. S. Attorney admits that courts do not instruct
juries about their nullification power. But neither she nor the
courts deny that juries have that power.
Since the courts do not inform juries of their rights, Defendant
does. There is nothing illegal about telling the truth, even to
In fact there is nothing illegal about telling lies unless they
are directly responsible for some other illegal activity.
All speech, even lies are protected by Amendment I of the U. S.
Constitution. No court can legally prevent lying.
If telling lies is directly involved in illegal acts or
defamation, then it could be part of a criminal or defamatory
process. Advocating illegal activity, such as using illicit
drugs, is not illegal.
On page 7, the U. S. Attorney discusses the case of Byron De La
Beckwith in Mississippi who was acquitted for a murder to which he
However this is not a case of jury nullification. No person
wants to nullify the law of murder.
The failure of this case to reach justice occurred because of
failure to follow the Constitutional requirement in Amendment VI of an
impartial jury. Jury selection eliminated all black
persons. Had even one black person been on the jury, it is
unlikely that an unanimous not guilty verdict would have been reached.
On the top half of page 8, U. S. Attorney quotes two decisions
which state that no system would survive if each individual had the
right to decide what laws to obey. Toleration of such conduct
would not be democratic.
However the first of these statements is irrelevant. No
individual would decide anything. Jury decisions require
unanimous agreement among 12 people. Otherwise the jury is hung.
The second statement of not being democratic is true, thank
Convicting people of crimes is not subject to democratic
vote. That is why jurors are screened for impartiality, no
personal interest in the outcome, and an unanimous decision is
Attempts to Advocate Jury Nullification to Jurors are Not
Constitutionally Protected Speech
The U. S. Attorney states that Defendant argues that if jury
nullification is unlawful, he has a First Amendment right to advocate
that jurors engage in jury nullification, and that they lie to a judge
in order to protect their right to do so.
Defendant is unaware that he has ever advocated either of those
actions. The U. S. Attorney has produced no person who claims
that he has.
In fact, she cannot produce such a person because even the courts
admit that jury nullification is lawful. According to the courts,
it is only telling someone lies that is unlawful.
However, Defendant does claim that the First Amendment gives him
the right to say anything that he wants that does not directly lead to
harming someone else. He can advocate burning witches, preventing
homosexuals from having consensual sex, aborting fetuses, banning
Christians from praying at football games, not paying income taxes,
carrying concealed weapons without a permit, using illegal drugs,
gambling, prostitution, lying to judges and his spouse, and even jury
He also supports the right for two lies that all Jewish men will
tell without even thinking about or feeling guilty: denying adultery
and not voting.
At the bottom of page 8, the U. S. Attorney argues that the plaza
in front of the courthouse is not a public forum, even though it is
open to the public and the public uses it as a sidewalk to go from
Pearl Street to Centre Street.
It is permissible to distribute literature and hold public
demonstrations on the front steps of the U. S. Supreme Court in
To claim that it is not permissible to distribute literature on a
public thoroughfare in front of any courthouse should be cause for
disbarment because of ignorance of the law.
Even the U. S. Gestapo (also known as the Department of Homeland
Security) has stopped enforcing the regulations against distributing
literature or taking pictures on federal property.
Defendant has distributed literature 64 times at 40 U. S. District
At only three of these courthouses was he arrested for
All of those cases have been dismissed, including the 11 arrests
at the U. S. District Courthouse for the Southern District of NY at 500
Pearl Street in Manhattan NY.
On page 9, the U. S. Attorney quotes Cox v. Louisiana 379 U. S.
559, 562 (1965) which upheld the constitutionality of a Louisiana
statute that prohibited picketing or parading near a courthouse.
In its ruling the Supreme court supported “legislative
determination” (not judicial determination) to prohibit
activities that threatens the judicial process.
This decision is not applicable in the present case because
Defendant was not picketing or parading.
What The U. S. Attorney failed to mention is that in Cox v.
Louisiana the Supreme Court overturned the conviction of peaceful
It held that a state government cannot employ "breach of the
peace" statutes against protesters engaging in peaceable demonstrations
that may potentially incite violence.
In a court decision [U. S. v. Grace, 461 U. S. 171, 177–178
(1983)] quoting Adderly v. Florida, 385 U. S. 39, 47–48 (1966)
that decision states:
"That juror must vote Not Guilty regardless of the pressures or
abuses that may be heaped on him by any or all members of the jury with
whom he may in good conscience disagree. He is voting on the justice of
the law according to his own conscience and convictions and not someone
else’s. The law itself is on trial quite as much as the case
which is to be decided."
U.S.C. 13k prohibits the "display [of] any flag, banner, or device
designed or adapted to bring into public notice any party,
organization, or movement" in the United States Supreme Court building
or on its grounds, which are defined to include the public sidewalks
constituting the outer boundaries of the grounds.”
“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 [461 U.S. 171, 184]
time, place, and manner restrictions, either by statute or by
regulations issued pursuant to 40 U.S.C. 13l.”
“Section 13k, as applied to the public
sidewalks surrounding the Court building, is unconstitutional under the
First Amendment. Pp. 175-184.”
According to the decision, the time place, and manner restrictions
must be made by statute or by regulations issued pursuant to 40 U. S.
C. 13l, not by court order.
Since the plaza surrounding the U. S. District Court at 500 Pearl
Street is used primarily as a sidewalk, prohibition of pamphleting
cannot be made by any method.
On page 10, The U. S. Attorney discussed Turney v. Pugh, 400 F. 3d
1197 (9th Cir. 2005). The Court upheld the conviction of an
individual for “knowingly communicating with a juror, directly or
indirectly, with the intent to influence a specific case.”
This is not applicable in the present case, because Defendant made
it a point not to discuss specific cases, as the recordings of both
entrapment agents confirms.
The U. S. Attorney mentions on page 11 that Turney, in Wood v.
Georgia, 370 US 375 - 1962 , the Supreme Court dismissed the conviction
against a sheriff because there was no “judicial proceeding
pending in a sense that prejudice might result to one litigant or the
other by ill-considered misconduct aimed at influencing the outcome of
The U. S. Attorney has produced no evidence that
Defendant ever tried to influence the outcome of a specific trial.
The complete syllabus of Wood v. Georgia is:
midst of a local political campaign, a County Judge, in the presence of
representatives of news media assembled at the Judge's request, issued
a charge to a grand jury giving it special instructions to investigate
rumors and accusations of alleged bloc voting by Negroes and the
rumored use of money by political candidates to obtain their votes. The
next day, while the grand jury was in session, petitioner, an elected
Sheriff who was a candidate for reelection, issued from his office in
the same building a press statement criticizing the Judge's action and
urging citizens to take notice when their judges threatened political
intimidation and persecution of voters under the guise of law
enforcement. Petitioner was cited in the County Court for contempt, on
the ground that his statement was calculated to be contemptuous of the
Court and to obstruct the grand jury in its investigation and that it
constituted a "clear, present and imminent danger" to the
administration of justice. Petitioner issued a further statement
repeating substantially his earlier charges and asserting that his
defense would be that he had spoken the truth. The contempt citation
was then amended by the addition of another count based on this latter
statement and a charge that it constituted a clear and present danger
to the grand jury investigation and to the disposition of the contempt
citation against him. Without making any findings or giving any reasons
for its conclusion that his conduct actually obstructed the grand jury
or contempt proceedings, the trial court adjudged petitioner guilty of
contempt and sentenced him to fine and imprisonment.”
“Held: The record does not support a
finding that petitioner's statements presented a clear and present
danger to the administration of justice; and his conviction violated
his right to freedom of speech guaranteed by the First and Fourteenth
Amendments. Pp. 370 U. S. 376-395.”
What is amazing about this case is that the trial judge
violated the law by exposing a grand jury hearing, which is supposed to
be secret to protect the accused, and then found the accused guilty of
contempt of court for defending himself.
On page 13, the U. S. Attorney correctly states that Defendant was
trying to inform anyone that was or could become a juror of the legal
right to nullify a law in the interest of justice. That includes
every person in the United States.
In no instance, including her two under cover agents, has she
shown that Defendant ever tried to influence a juror in a specific
case. In fact her undercover entrapment agents discovered that
Defendant would not discuss any particular case at all.
The U. S. Attorney mentions Ogle 613 F.2d 233 where a conviction
of a defendant was upheld under 18 U. S. C. § 1503. Ogle was
trying to influence a juror in a specific tax case that she need not
uphold the law for various reasons. The juror claimed that Ogle
endeavored to deliver to her a pamphlet.
The court case states:
“The pamphlet, "A Handbook
for Jurors," teaches that tax crimes are not true crimes and that it is
unnecessary for jurors to follow the law of the land where they
conceive of the law being contrary to their concepts of morals. The
book also teaches that a juror is empowered to determine if a law under
which a person is charged is contrary to the Constitution or common law
and acquittal is appropriate. The emphasis in the handbook is that the
juror is empowered to acquit where he feels that the law is unfair or
that it infringes on fundamental rights.”
The conviction against Ogle was upheld by the court.
However the circumstances were quite different than in the present
case for the following reasons.
Ogle attempted to directly contact a specific juror about a case
in progress to influence her to make a specific decision based on
morals, constitutionality, or common law.
Defendant Heicklen has not contacted nor discussed a specific case
with any juror nor does he recommend that jurors act as attorneys to
decide constitutional or common law issues.
He certainly does not expect or even approve of a juror deciding a
case on his or her own moral code.
He does not encourage or instruct jurors that any particular law
be nullified in general.
His specific message is that jurors can acquit in a specific case
in the interest of justice. This is exactly the same obligation of the
judge, the U. S. attorneys, the U. S. President, and the police
As noted above, the courts do not consider jury nullification to
be illegal. They just do not want jurors to know their options.
Such behavior does not deliver justice nor help the reputation of the
At the bottom of page 13, The U. S. Attorney discusses State of
Montana v. Holland, 1995 Mont. Dist. LEXIS 929, No.
CR–95–53 where a defendant mailed letters to prospective
jurors on his own case advocating jury nullification. This hardly
resembles anything Defendant was doing.
On page 14, The U. S. Attorney again argues that the plaza in
front of the courthouse at 500 Pearl Street is not a public
forum. According to the Free Dictionary
“A public forum, also called
an open forum, is open to all expression that is protected under the
First Amendment. Streets, parks, and sidewalks are considered open to
public discourse by tradition and are designated as traditional public
The plaza is used as a cross walk by pedestrians.
Pictures are taken by tourists. People routinely exchange business
cards. Some eat food and/or carry packages while crossing the
plaza. No pedestrian is excluded from standing in the plaza or sitting
on its walls or steps. On what grounds does the U. S. Attorney
claim that the Plaza is not a public forum?
Defendant has distributed jury nullification literature at least
60 times in front of 40 U. S. District Courthouses. Descriptions
of these events appear at
In spite of the fact that there is U. S. Regulation 41 CFR Sec
102–74.415(c) prohibiting this activity, Defendant has not been
removed nor arrested at 36 of these courthouses.
In Santa Ana, CA, he was arrested and cited for disobeying the
order of a law enforcement officer, but he was not cited for
distributing literature. This case is still in litigation.
In Springfield, MA, he was arrested and cited for distributing
literature in 2010. He did not pay his fine nor appear for court
hearings. One year later he publicly announced that he would
return. Furthermore he personally informed the arresting officer of his
intended return on June 28, 2011. When he returned he distributed
jury nullification literature for an hour. He was observed by two court
police officers, but was not approached by them or impeded in any way.
In 2010, he was arrested for distributing literature in front the
U. S. District Court in Newark, NJ. The case was dismissed by the
U. S. Attorneys. That afternoon, Defendant and an associate
distributed FIJA material for an hour in front of the Newark
Courthouse. They were observed, but not approached, by four
Defendant was arrested 11 times and cited 7 times for distributing
FIJA literature at the U. S. District Courthouse at 500 Pearl Street in
New York, NY. These cases were all dismissed by the U. S.
He and an associate returned to the courthouse at 500 Pearl Street
on two additional occasions and distributed FIJA literature for an hour
each time. They were not arrested nor prevented from that
It is obvious that the courthouse personnel, the courthouse
police, and the U. S. attorneys at all 40 federal courthouses consider
the courthouse plazas to be a public forum, and that Defendant is
protected by Amendment I of the U. S. Constitution from this presumably
On pages 14–16 the U. S. Attorney discusses BRAUN v. BALDWIN
346 F. 3d 761, 764 (7th Cir 2003) which has to do with activity inside
a court house. It has no applicability to the present case.
In fact the U. S. Attorney mentions that the Braun decision only
covers the inside of the courthouse. It further states that
“Newspapers and the streets outside are open to scathing
criticism of what happens within the courthouse. But the halls of
justice may be kept hushed."
In its decision the court states that: “Although advocacy of
jury nullification could no more be flatly forbidden than advocacy of
Marxism, nudism, or Satanism, we cannot think of a more reasonable
regulation of the time, place, and manner of speech than to forbid its
advocacy in a courthouse.”
At the bottom of page 17, the U. S. Attorney states: “The
500 Pearl street Plaza is surrounded on all sides by concrete bollards,
manned security booths and vehicle barriers, and 24 hour video
surveillance. Such measures demarcate 500 Pearl Street Plaza and notify
users that its primary purpose is not as a park or a
Somehow the public does not get the message. The main use of the
plaza is as a sidewalk connecting Pearl and Centre Streets.
Furthermore police routinely block off public streets, use
concrete barriers, manned security stations, vehicle barriers, and
video surveillance for the express purpose of supporting parades and
other public demonstrations, including distributing literature.
Has U. S. Attorney never been near the U. N. building at a public
demonstration nor to the Thanksgiving Day parade?
On page 18, U. S. Attorney mentions that Jose Robertson Plaza is
not considered a public plaza by the 2nd Circuit Court “although
the Plaza’s design clearly invites passers-by to stroll through
or linger, the Plaza was not created primarily to operate as a public
artery, nor to provide an open forum for all forms of
expression.” Therefore she claims that the courthouse plaza
is not a public forum.
Defendant is not familiar with Jose Robertson Plaza. However
if the Plaza is rented to private business owners, they may have
certain rights to control the use of the property as they wish.
The fact that the public is invited on a person’s property
does not give the public the right to do anything it wishes. Businesses
routinely invite customers to stroll through their store, but they
rarely permit demonstrations.
Publicly owned and used land is quite different.
Public sidewalks are primarily for pedestrian passage. However
distribution of literature or picket lines cannot be prohibited as long
as they do not interfere with pedestrian traffic nor cause other
Public demonstrations usually are not permitted in buildings, but
generally can occur on public lands such as parks, the U. S. Capitol
lawn, in front of U. S. courts and government buildings. Streets
are often blocked off to motor vehicles to accommodate a parade.
Section 1504 is Not Void for Vagueness
On page 18, the U. S. Attorney claims that Section 1504 is not
void for vagueness. Defendant agrees in part.
Title 18 U. S. C. § 1504 is said to state that it is a crime
to send or write any written communication to a juror concerning his or
Defendant did not send or write to any juror and has not been so
Furthermore he never discusses a particular case. The
prosecution has not provided any juror that claims that he has.
For that matter, the prosecution has not provided any juror at all.
The rest of the discussion through page 23 is irrelevant.
Section 1504 is sufficiently Definite So That Ordinary People Can
Understand What Conduct is Prohibited
Section C is laughable on its face. According to the
prosecution, Defendant must show (1) that he has been singled out, and
(2) that the prosecution is an attempt to deny the exercise of
Constitutional rights. Of course this is the case.
The Constitutional First Amendment right has already been
Of course Defendant has been singled out. Defendant has
distributed literature at 40 federal district courthouses with many
associates including at 500 Pearl Street (See
None of them have been charged with criminal activity.
Other people have distributed the same or similar literature
without Defendant being present. Distributions at county
courthouses are routine. Every county courthouse in New Hampshire
has been targeted. Many individuals have participated in
distributions in several Florida cities, as well as in Idaho, Montana,
New Jersey, Pennsylvania, and Fort Worth, Texas.
This section is
B. Section 1504 Does Not
Encourage Arbitrary and Discriminatory Enforcement
This section is irrelevant.
C. The Defendant Was Not
Section 1504 is not Overbroad
The U. S. Attorney admits that: “Section 1504 does
not, and indeed, could not, criminalize the mere writing or
distribution of information, correct or otherwise, about a
juror’s duties, jury nullification, or about the facts of a
Then why is Defendant being prosecuted? What does she think
that Defendant is doing?
The U. S. Attorney admits that: “Section 1504’s
requirements that there be the intent to influence the action or
decision of a juror, and that the written communication be written or
sent to a juror,...”
The U. S. Attorney has produced no evidence that Defendant has
ever discussed a case with a sitting juror (or even her entrapment fake
jurors who were trying to do so), or that he has written or sent
material to a sitting juror. There is no such evidence, because
Defendant has never done any such thing.
Pages 25 and 26 of Ms Marmelstein’s Response is
unintelligible. It is just gobbledegook.
Indictment is not Duplicitous
Likewise the discussion here has nothing to do with
the case at hand.
As noted before, in the BRAUN v. BALDWIN decision the court states
that: “Although advocacy of jury nullification could no more be
flatly forbidden than advocacy of Marxism, nudism, or
The indictment does not identify any crime at all. That is a
No witness testified that a conversation, much less a crime had
Even if the case had been discussed, the juror just notifies the
judge and is dismissed.
Furthermore the U. S. Attorney lied to the grand jury that a juror
had been tampered.
Finally Defendant was not notified of the grand jury hearing, and
thus could not testify before the grand jury, as is his right.
For any of these reasons the indictment should be quashed.
The government harps on the fact that Defendant has been informed
of the dates on which he distributed pamphlets. The Defendant
knows those dates and admits he distributed pamphlets describing jury
nullification and the juror’s duties.
None of that is criminal activity, even if the distributed
information is incorrect. Disseminating false information is not
desirable, but it is not criminal.
Criminal activity only occurs when a message is written or sent to
a particular juror about a specific case on which he is a juror.
Defendant does not even know what cases were on the docket. It was
irrelevant to him.
The Indictment Properly states an Offense
The indictment contains several lies. It states that:
“JULIAN HEICKLEN, the defendant, attempted to
influence the actions and decisions of a grand and petit
juror...” No such acts occurred. The prosecution has
not produced either the grand or petit juror.
It claims and that Defendant did this “before a
jury.” However Defendant was never before a jury in a U. S.
District Court in his whole life. The prosecution has never
identified any such jury.
That Defendant influenced a juror: “by writing or sending to
him a written communication in relation to such issue or
matter...” No written communication was sent to such a
juror. In fact the indictment admits this by stating that
Defendant distributed pamphlets, not that he sent or wrote
anything. Furthermore no such juror has been identified in the
indictment or subsequently.
It is true that the indictment properly states an offense, but not
one that occurred. The indictment is nothing but a tissue of
At the bottom of page 30, the U. S. Attorney states that:
“ An indictment, however, need not be perfect,...”
She certainly met that standard.
Defendant is not entitled to a Bill fo Pariculars
The Defendant is charged with tampering jurors.
However on page 34, the prosecution refuses to identify any such
jurors, what he sent or wrote to them, and what he instructed them to
do. How can Defendant possibly prepare a defense without this
The Defendant is not Entitled to a Jury Trial
This statement on page 37 directly conflicts with Article
III, Section 2 and Amendment VI of the U. S. Constitution.
The judge is required by oath to uphold the U. S. Constitution,
not deviations preferred by the Supreme Court and/or the U. S.
In any event the Supreme Court does not forbid jury trials in
In this particular case, a jury trial is essential, because no
judge can render an unbiased decision in which the verdict would effect
the power of judges.
The Prosecution argues that a jury trial is not necessary because
of rule changes made by Congress and/or the Judiciary. However
neither nor both of these bodies have the authority to amend the
Article V of the U. S. Constitution clearly states that amendment
can only be made by the approval of 3/4 of the state legislatures or
Since neither of those has occurred, a jury trial is mandatory if
this case goes to trial.
Defendant certifies, under penalty of perjury,
that DEFENDANT’S REPLY TO
GOVERNMENT’S MEMORANDUM OF LAW IN RESPONSE TO DEFENDANT’S
MOTIONS was sent by certified U. S. mail on November 25, 2011,
to the following:
Pto Se Clerk, U. S. District Court, Southern District of New
York, 500 Pearl Street, New York, New York, 10007
Judge Kimba Wood, U. S. District Court, Southern District of New
York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007
Assistant S. Attorney, Rebecca Mermelstein, S. D. N. Y., U. S.
Courthouse, 300 Quarropas Street, White Plains, NY 10601
U S. Federal Public Defender Sabrina Shroff, Federal Defendes of
New York, Inc., Southern District, 52 Duane Street–10th Floor,
New York, NY 10007
Attorney Adam Sudbury, 404 E. Central Boulevard, # 307, Orlando,
Mark Schmidter, 3609 Shader Road, Orlando, FL 32808
Counsel Pro Se