Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:06-cr-00085-SLR

Document 25

Filed 09/06/2006

Page 1 of 8

GLENN A. ZEITZ, ESQUIRE Attorney I.D.: 15930 38 Haddon Avenue Haddonfield, New Jersey 08033 (856) 795-6660 Attorney for Defendant Steven Humes

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________________________________________ UNITED STATES OF AMERICA : : : vs. : Criminal No.: 06-85 (SLR) : : STEVEN HUMES : : ____________________________________________________________________

MEMORANDUM OF LAW IN SUPPORT OF MR. HUMES' MOTION TO DISMISS THE INDICTMENT AS A MATTER OF LAW

I.

STATEMENT OF FACTS This matter stems from an earlier state court matter wherein Mr. Humes was

convicted of a misdemeanor for accessing for an improper purpose information on a computer hard drive that he had repaired after the owner (Jeanne Ohm) of the hard drive had stopped payment on an $810.00 check she had given him for the repair work without notifying him first of her intention to stop payment. Prior to, during and after his state court trial, Mr. Humes filed numerous pleadings in both state court and federal court seeking various forms of relief. While each pleading

Page -1-

Case 1:06-cr-00085-SLR

Document 25

Filed 09/06/2006

Page 2 of 8

had a good faith basis, each was also based on Mr. Humes' untrained understanding of both the law and procedure in both state and federal court matters. Although Mr. Humes has filed approximately 40 pleadings in both state court1 and federal court2, the two-count allegation in this Indictment are limited to a statement referenced in an attachment to a responsive pleading to a motion to dismiss in federal court; a copy of the pleading is attached hereto as Exhibit A. It is therefore undisputed that the alleged threatening communication was made in the context of litigation that has been ongoing for nearly two years involving scores of pleadings. For the sake of judicial economy and brevity it is requested that this Court take judicial notice under Federal Rule of Evidence 201 of all the pleadings filed by Mr. Humes in both the state and federal courts.

1

Sixteen (16) Pleadings in the Court of Com m on Pleas of Delaware: Motion for W ritten Response To Depositions; Motion To Com pel Justice; Motion for Affirm ative Defenses; Motion To Suppress Evidence; Motion To Com pel Discovery; Motion for Audio Visual Equipm ent; Motion To Deny Any Actions That W ould Cause Any Delay or Postponem ent of Trial; Motion To Subpoena Deputy District Attorney Clerk of Assistant; Case Law In Support of Scheduled Motion for Judicial Notice; Motion To Receive Ex Parte Assistance In Issuing Subpoenas; Motion In Further Support of and In Other Matters Concerning Motion for Judicial Notice; Motion for Judicial Notice; Motion To Notify; Motion To D ism iss (two separates m otions); and Motion To Exclude. Nine (9) Pleadings in the Superior Court of Delaware: Notice of Appeal; Motion for Transcripts; Motion for Counsel; Motion for Change of Venue; Motion To Show Good Cause; Motion Opposing Allowing Correction of Clerical Mistake; Motion To Grant Appeal; Opening Brief In Support of Appeal; and Civil Com plaint. Two (2) Pleadings in the Suprem e Court of Delaware: Notice of Petition for W rit of Mandam us and Notice of Motion To Proceed In Form a Pauperis
2

Thirteen (13) Pleadings in the Federal District Court of Delaware: Com plaint; Five (5) Sum m onses; Praecipe; Motion To Am end Com plaint; Em ergency Motion for Order of Protection; Letter Brief Requesting Reconsideration of Protection Order; and Three (3) Responsive Briefs In Opposition To Motion To Dism iss.

Page -2-

Case 1:06-cr-00085-SLR

Document 25

Filed 09/06/2006

Page 3 of 8

II.

ARGUMENT Federal Rule of Criminal Procedure 12(b)(2) and 12(b)(3)(B) respectively provide

that: Motions That May Be Made Before Trial. A party may raise by pretrial motion any defense, objection or request that the court can determine without a trial of the general issue. Motions That Must Be Made Before Trial . . . a motion alleging a defect in the indictment or information ­ but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense; Federal Rule of Criminal Procedure 12(b)(2) authorizes dismissal of an indictment if its allegations do not suffice to charge an offense. United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000) (citing United States v. Sampson, 371 U.S. 75, 78-79 (1962)). On a motion to dismiss an indictment, the trial judge may only consider those objections that are "capable of determination without the trial of the general issue" and may not consider evidentiary questions. United States v. Gallagher, 602 F.2d 1139, 1142 (3d Cir. 1979) (citing United States v. Knox, 396 U.S. 77 (1969)). The indictment in this case is facially insufficient and must be dismissed because the communication at issue is not clearly threatening and it is otherwise protected under the First Amendment and the privilege of protecting statements of parties in the context of litigation.

Page -3-

Case 1:06-cr-00085-SLR

Document 25

Filed 09/06/2006

Page 4 of 8

A.

The Grand Jury Was Presented With Insufficient Evidence To Properly Indict Steven Humes Under 18 U.S.C.A. §876(c) Because The Communication At Issue Is Not Clearly Threatening; and As Such, the Indictment Is Defective and Must Be Dismissed As A Matter of Law. 18 U.S.C.A. §876(c) provides that: Whoever knowingly so deposits or causes to be delivered as aforesaid, any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both. If such a communication is addressed to a United States judge, a Federal law enforcement officer, or an official who is covered by section 1114, the individual shall be fined under this title, imprisoned not more than 10 years, or both.

When determining whether a communication constitutes a "threat" under this statute, there must be competent and credible proof that the recipient feared imminent harm upon being exposed to the communication. United States v. Zavrel, 384 F.3d 130, 136 (3d Cir. 2004). The Third Circuit has adopted the Second Circuit's definition of a "threat" as: a statement expressing an intention to inflict bodily harm to someone of such a nature as could reasonably induce fear as distinguished from idle, careless talk, exaggeration or something said in a joking manner . . . A serious expression of intent to inflict injury and not merely a vehement or emotional expression of political opinion, hyperbole or arguments against government officials. Id. (quoting United States v. Malik, 16 F.3d 45, 51 (2d Cir. 1994) (Bold and Underline Emphasis Added). In his dissent, Judge Stapleton concluded that "threat to injure" under §876 requires the communication to convey that some prospective action will be taken by the sender and that the most appropriate way to determine the criminality of such a communication is to consider what a person receiving it would reasonably perceive the Page -4-

Case 1:06-cr-00085-SLR

Document 25

Filed 09/06/2006

Page 5 of 8

message to be. Zavrel, 384 F.3d at 137-38; see e.g., United States v. Alaboud, 347 F.3d 1293, 1296 (11th Cir. 2003) (holding that a communication is a threat when "in its context [it] would have a reasonable tendency to create apprehension that its originator will act according to its tenor."); United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990) (finding that a threat exists when after hearing the message "the listener will believe he will be subjected to physical violence upon his person."). In Malik, supra, the Second Circuit concluded that whether a given writing constitutes a threat must be measured from an objective standard of proof ­ i.e., whether "an ordinary, reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury". 16 F.3d at 49 (quoting United States v. Maisonet, 484 F.2d 1356, 1358 (4th Cir. 1973) cert. denied, 415 U.S. 933 (1974)). In making this

determination, proof of the effect of the alleged threat upon the addressee is highly relevant. Id. (citing United States v. Davis, 876 F.2d, 71, 73 (9th Cir.), cert. denied, 493 U.S. 866 (1989)). An equivocal communication (i.e., letter) with equal chances of being interpreted innocuously or harmfully will not constitute a threat standing alone. Id. at 50; see also, United States v. Barcley, 452 F.2d 930, 933 (8th Cir. 1971) (where a communication contains language which is equally susceptible of two interpretations ­ one threatening and the other non-threatening ­ the Government has the burden of presenting evidence removing that ambiguity). The communication must be so unequivocal,

unconditional, and specific as to convey to the recipient a gravity of purpose and apparent prospect of execution. Id. at 51. In Barcley, supra, the defendant sent a letter to his appellate lawyer stating, inter alia, that "as soon as I can get this case situated around in the position I want you are the

Page -5-

Case 1:06-cr-00085-SLR

Document 25

Filed 09/06/2006

Page 6 of 8

first S.O.B. that will go [and the prosecutor] will [go] next." 453 F.2d at 932. Although the Eighth Circuit recognized that it is possible to construe such language as threatening injury, it is also recognized that there are numerous innocuous interpretations which are equally plausible. Id. at 933. The Eight Circuit also recognized that the defendant's letter simply communicated a client's dissatisfaction with the services of his attorney and cautioned that "[s]uch communication falls within the purview of the First Amendment whether phrased in the King's English or peddler's French." Id. When First Amendment considerations apply, courts must be careful to distinguish "[w]hat is a threat . . . from what is constitutionally protected speech." Id. (quoting Watts v. United States, 394 U.S. 705, 707 (1969)). In this case, the pleading at issue references equal protection concerns, due process concerns and other constitutional concerns which are all protected speech under the First Amendment. See Watts, supra, 394 U.S. at 707. With respect to the alleged threat, it cannot be read and interpreted in isolation. The "threat" must be read in the context of the other statements contained in the pleading itself and the statements made in prior pleadings. The alleged threat is like finding a "needle in a haystack" ­ a mere sentence or two contained in one pleading of more than 40 pleadings previously filed. Further, Mr. Humes' mere statement of making a citizens' arrest was not conjured in his own imagination but was based on his untrained understanding of a legal article he had read by a constitutional law attorney named David C. Grossack entitled "Citizens' Arrest"; a copy of the article is attached hereto as Exhibit B. Mr. Humes' reliance on this

Page -6-

Case 1:06-cr-00085-SLR

Document 25

Filed 09/06/2006

Page 7 of 8

legal article clearly refutes the mens rea requirement under both "threat to kidnap"3 and "threat to injure". B. In Addition To Not Clearly Constituting A Threat, the Communication At Issue Is Otherwise Protected By the First Amendment and the Privilege of Protecting Statements Made In the Context of Litigation. The common law rule protecting statements of judges, parties, witnesses and attorneys offered in the course of judicial proceedings from liability is well-recognized in both the State of Delaware and the Third Circuit. Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. 1983); Silver v. Mendel, 894 F.2d 598, 603 (3d Cir. 1990). The privilege is not narrowly confined to intra-courtroom events, but extends to all communications appurtenant thereto including the "drafting of pleadings". Nix, 466 A.2d at 410 (citations omitted). The privilege applies when the statement is issued as part of judicial proceeding and is relevant to a matter at issue in the case. Barker v. Huang, 610 A.2d 1341, 1345 (Del. Supr. 1992). The relevance of the statement is liberally construed in favor of the pleader. Nix, 466 A.2d at 411 (citation omitted). Further, the interest in encouraging a litigant's unqualified candor as it facilitates the search for truth is deemed so compelling that the privilege attaches even where the statements are offered maliciously or with knowledge of their falsity. Id. (Citations Omitted).

3

The federal kidnapping statute requires the Governm ent to prove four elem ents: (1) transportation in interstate com m erce; (2) of an un-consenting person who is; (3) held for ransom , reward, or otherwise; and (4) the acts were done knowingly and willingly. United States v. Osborne, 68 F.3d 94 (5th Cir. 1995) (interpreting 18 U.S.C.A. §1201). In this case, there is no proof whatsoever that any of the alleged victim s would have been transported outside of the State of Delaware. Further, there is no proof that if any of the alleged victim s were actually "kidnapped" Mr. Hum es would have received any kind of any kind benefit. See United States v. McGrady, 191 F.2d 829(7th Cir.), cert. denied, 342 U.S. 911 (1951), United States v. Stands, 105 F.3d 1565 (8th Cir.), cert. denied, 522 U.S. 84 (1997), United States v. Childress, 26 F.3d 498 (4th Cir.), cert. denied, 513 U.S. 1157 (1994).

Page -7-

Case 1:06-cr-00085-SLR

Document 25

Filed 09/06/2006

Page 8 of 8

In this case, it is undisputed that the alleged threatening statement was made part of a pleading. Further, the statement was relevant (and not merely collateral) to Mr. Humes' cause of action because it related to Mr. Humes' equal protection argument. Mr. Humes motivation was not money or some other illicit (illegal) purpose, but was merely to ensure that all citizens are treated equally and to prevent selective prosecution. He simply wanted authorities to investigate Jeanne Ohm for the thousands of illegally downloaded songs stored on her computer and others for there alleged illegal (and improper) involvement in his state court prosecution. Unlike every other reported decision, no overt acts of any kind were taken by Mr. Humes that would demonstrate he intended to carry out a citizens arrest of any of the individuals referenced in this Indictment. Further, it was (and remains) Mr. Humes' intent that law enforcement make these arrests. III. CONCLUSION Defendant respectfully requests that the Indictment be dismissed. Respectfully Submitted:

Dated: September 6, 2006

/s/ Glenn A. Zeitz GLENN A. ZEITZ, ESQUIRE Attorney for Defendant Steven Humes

Page -8-

Case 1:06-cr-00085-SLR

Document 25-2

Filed 09/06/2006

Page 1 of 1

CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of Defendant's Memorandum of Law in Support of His Motion To Dismiss the Indictment has been sent electronically to the following: Edmund Falgowski, A.U.S.A. United States Attorney's Office District of Delaware P.O. Box 2046 Wilmington, Delaware 19809

Dated: September 6, 2006

/s/ Glenn A. Zeitz GLENN A. ZEITZ, ESQUIRE Attorney for Defendant Steven Humes

Case 1:06-cr-00085-SLR

Document 25-3

Filed 09/06/2006

Page 1 of 1

GLENN A. ZEITZ, ESQUIRE Attorney I.D.: 15930 38 Haddon Avenue Haddonfield, New Jersey 08033 (856) 795-6660 Attorney for Defendant Steven Humes

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________________________________________ UNITED STATES OF AMERICA : : : vs. : Criminal No.: 06-85 (SLR) : : STEVEN HUMES : : ____________________________________________________________________ ORDER AND NOW, upon consideration of the Defendant's motion and memorandum of law in support of dismissing the Indictment; the Government's memorandum of law in opposition to same; and the arguments of counsel; IT IS ORDERED, this Defendant's motion is granted. BY: day of , 2006, that the

HONORABLE SUE L. ROBINSON United States District Court Judge

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 1 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 2 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 3 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 4 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 5 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 6 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 7 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 8 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 9 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 10 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 11 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 12 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 13 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 14 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 15 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 16 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 17 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 18 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 19 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 20 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 21 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 22 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 23 of 24

Case 1:06-cr-00085-SLR

Document 25-4

Filed 09/06/2006

Page 24 of 24

Case 1:06-cr-00085-SLR

Document 25-5

Filed 09/06/2006

Page 1 of 3

Case 1:06-cr-00085-SLR

Document 25-5

Filed 09/06/2006

Page 2 of 3

Case 1:06-cr-00085-SLR

Document 25-5

Filed 09/06/2006

Page 3 of 3