Lee v United States appellant's informal reply brief re traffic ticket

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

John Davis Lee II, )

)

Defendant, Appellant )

) 3:00-CR-121

v. ) Trial de Novo

) Jury Trial Demanded

UNITED STATES ) P0508625

) (VARLAN/SHIRLEY)

Plaintiff, Appellee )

RESPONDENT’S INFORMAL REBUTTAL BRIEF TO PLAINTIFFS’ REPLY BRIEF RE DEFENDANT’S APPEAL TO THE DISTRICT COURT REGARDING FINAL ORDER OF MAGISTRATE

Defendant-appellant John Lee hereby responds in part to Plaintiffs’ Reply Brief.

FACTS IN DISPUTE

On the date in question, Plaintiffs’ complaining witness, Keith Gad, ignored several forest fires in his jurisdiction, and ignored 1,000s of illegal aliens driving to work without driver licenses or identification in the Great Smoky Mountain National Park, while Mr. Gad violated several Codes of Federal Regulation and Tennessee Code. Mr. Gad illegally made an allegation against Defendant John Lee for allegedly violating 36 CFR 4.12, a violation which Keith Gad did not eyewitness. It is illegal for any complainant to prosecute a misdemeanor which he did not eyewitness.

Nor did Mr. Gad videotape Defendant’s alleged crime, since Mr. Gad chose to turn off his videotape equipment, despite engaging in a “high-speed chase” of a 45 mph vehicle in a 45 mph zone (perhaps a 90 mph closing speed after slowing down, stopping, reversing direction by driving off-road, catching up, and passing a slower vehicle, all without the mandatory emergency lights and siren turned on).

The itemized list of Mr. Gad’s crimes was provided in Defendant’s Informal Appeal Brief.

Plaintiffs allege that 18 U.S.C. 3401 authorizes U.S. Magistrates to have unlimited jurisdiction over trials for “petty offenses”, including the discretion to ignore Federal Rules of Criminal Procedure, discretion to ignore the published Local Rules of U.S. District Court, Eastern District, discretion to ignore the Federal Rules of Evidence, discretion to ignore the U.S. Constitution, discretion to ignore the U.S. Supreme Court, discretion to ignore Tennessee statutes, and discretion to ignore the Tennessee Constitution. Tennessee Constitution has many sections requiring trial by jury in all criminal cases, including “small offenses”, and requires indictment by grand jury where a preliminary hearing is demanded.

18 U.S. Code § 3401. Misdemeanors;

(f) The district court may order that proceedings in any misdemeanor case be conducted before a district judge rather than a United States magistrate judge upon the court’s own motion or, for good cause shown, upon petition by the attorney for the Government. Such petition should note the novelty, importance, or complexity of the case, or other pertinent factors, and be filed in accordance with regulations promulgated by the Attorney General.

Defendant asserts that since 18 U.S. Code § 3401(f) authorizes the Court and Plaintiff to choose trial by judge for petty offenses, then Constitutional due process and equal protection requires that defendants be allowed that same right. Defendant does not voluntarily waive this right to trial by judge in this case, in part due to the “complexity” of this case.

If 18 U.S. Code § 3401 is opined to deny defendants the right to trial by judge, then Defendant objects to this interpretation, and requests injunctive relief to overturn this section of U.S. Code, on grounds that it violates Constitutional due process and equal protection.

As asserted previously, Defendant objected to trial by magistrate, in part due to Magistrate Guyton’s denial of due process in an apparent rush to judgment, by denial of routine discovery requests, refusal to grant sufficient time for trial preparation, and his opinion to ignore numerous confessed crimes by Plaintiff’s complaining witness, Keith Gad.

While trial by magistrate may be appropriate when defendants “voluntarily” waive their many Constitutional rights (such as pleading guilty), such “trials” are not appropriate when defendants choose to assert their “complex” Constitutional rights. The “legislative intent” (i.e. “Judicial Conference intent”) appears to be for magistrates to handle routine pretrial matters of the courts, in order to allow judges sufficient time to conduct trials, rather than to deny defendants the right to a fair trial.

However, Defendant objects to this so-called “legislative intent” of the judicial branch, Congress and the president to eliminate “public notice”, denial of “public comment”, and “without publication”, during this proposed “unpublished rule change” to the Constitutional requirements for due process (Committee on Rules and Practice Procedures of the Judicial Conference of the United States, Report of Advisory Committee on Rules of Criminal Procedure, Action on Proposed Changes to Rule 58, December 4, 1996).

This is not to say that magistrates are incapable of conducting fair trials, only that they are under relatively more pressure of time constraints due to number of cases, which might lead to “pencil whipping” due process. (“Pencil whipping” was Plaintiffs’ jargon when Defendant was employed by Plaintiffs, in regards to ignoring published procedures for maintenance on military aircraft and weapons systems, usually due to time limitations, and ignoring the Uniform Code of Military Justice, usually due to contracting fraud. Defendant previously acted as a confidential informant during U.S. Air Force and Department of Defense Inspector General investigations on behalf of Congress, with published investigative findings in possession of Plaintiffs.)

According to the court clerks and court reporters for Eastern District at Knoxville, Defendant’s case is the first petty offense trial in court history to involve a court reporter. This indicates that magistrates are not accustomed to handling “complex” issues, like arranging court reporters, and reading (or “updating”) its own Local Rules of Court.

LOCAL RULES OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

Effective: March 1, 1994

As Amended through December 14, 2007

LR72.4 Magistrate Judges - Criminal Proceedings

(a) Consent. Trial, judgment and sentencing in misdemeanor and petty offense cases may be had before a magistrate judge provided the defendant consents. See Rule 58(g) of the Federal Rules of Criminal Procedure. The consent forms to proceed before a magistrate judge in a petty offense case [AO Form 86] and in a misdemeanor case [AO Form 86A] are maintained in the magistrate judges' offices.

Defendant-appellant never signed the mandatory contract AO Form 86, nor did he consent orally to waiver of any right to trial by judge or jury.

If this Local Rule is invalid, it stills violates due process to require defendants to follows Local Rules that are knowingly invalid, or to require defendants to research the technical defects of each Local Rule. Such a requirement would be a fraud perpetrated by the Court, or at least negligence. Is Defendant really the first person to notice that this Local Rule has been allegedly invalid for the past 12 years?

ARGUMENT

The evidence before the Court proved that reasonable doubt exists that Defendant John Lee was guilty of the alleged petty offense, and that his due process rights were violated.

The evidence before the Court proved that probable cause exists that complaining witness Keith Gad was guilty of numerous misdemeanors and petty offenses, to include perjury.

CONCLUSION

Based on the above Defendant asks that his appeal be granted for reversal, remand for new trial, or trial de novo by district judge. Defendant does not voluntarily waive trial by jury. Or in the alternative, Defendant seeks criminal prosecution of Keith Gad.

Defendant seeks reversal of all petty offence judgments since 1996, and refund of all fines and court costs, if no Form AO86 was signed by defendants in the Eastern District of Tennessee.

Respectfully submitted,

______________________

John Davis Lee II, pro se

CERTIFICATE OF SERVICE