United States Court of Appeals - Research Paper Example

In The United s Court of Appeals For the Sixth Circuit United s of America, Plaintiff-Appellee vs. No.____________ George Pickett, Defendant-Appellant X-------------------------------------------X APPELANT’S BRIEF Appeal from the ____________ Order Convicting Defendant of Metal Hunting in a National Park and Illegal Possession of Historic Artifact and ordering Forfeiture of Defendant’s Metal Detector, Artifacts and 2007 Chevrolet Blazer from the Western District Court Of Kentucky at Louisville Statement of the Case This is a case in which Defendant George Pickett appeals from a judgment convicting him of metal hunting in a national park and illegal possession of historic artifact and ordering the forfeiture of the Defendant’s metal detector, artifacts recovered from him and his 2007 Chevrolet Blazer with serial number 654321 in favor of the Government. Plaintiff – Appellee erroneously convicted herein Defendant – Appellant of metal hunting in a national park and illegal possession of historic artifact and ordered for the forfeiture of the things and vehicle in his possession without due regard to the Bill of Rights under the Constitution, the basic principles of criminal law, rules on criminal procedure and pertinent laws and jurisprudence on archaeological resources. Plaintiff - Appellee supported its charge against Defendant Picker on the fact that while Defendant was metal hunting on some private property adjoining the Park while he visited Gettysburg National Military Park. Defendant then found a rare bowie knife worth about $2000.00, on the said private property. The Park Ranger, Hancock who was made a witness for the Government, claimed that he warned Defendant that metal hunting on national park land was forbidden and a criminal act, and should not trespass on the property. The Park Ranger also maintained that he showed the boundary line to the Defendant. The Park Ranger also asserted that he kept a close watch on Picket by being 50 yards behind him, and found Defendant to have inadvertently crossed the property line into the park. The Park Ranger then arrested Defendant on the basis of his claim that he crossed the boundary that was marked, despite the fact that the signs were not readily visible as the signs were only 8 inches by 12 inches and placed every 150 yards apart, and markings placed under heavily wooded a heavily wooded area that affected the mark’s visibility. During the trial, Defendant testified that he tried to avoid the park boundary, but could not see the signs, as they were not readily visible. Despite these undisputed facts, Federal Judge Meade instructed the jury that their determination of the violation of law would be based on a finding of whether or not the Defendant crossed the line into the park. Hence based upon this erroneous instruction, the case resulted in a wrong conviction for the Defendant of metal hunting in a national park and illegal possession of historic artifacts. Aside from this erroneous conviction, the order made by the District Court in the forfeiture of Defendant’s metal detector, artifacts (including the knife) and 2007 Chevy Blazer in favor of the Government was not in accordance with the proper procedure on forfeiture. Defendant explained that he still owes three and half years worth of payments to the Last National Bank who was not a party to the criminal trial for the vehicle in his possession. Despite the Bank’s effort to intervene into the forfeiture portion of the case the District Court only inquired as to whether the customer was going to use the vehicle for illegal activity, not being the case, the Court denied the right to repossess the Blazer due to the conviction. Statement of Oral Argument The Defendant-Appellant desires for an oral argument of his case, to correctly determine the pertinent facts and specific issues as to a violation as a result of the removal of the said item under the law. It also an opportunity to clarify issues, facts, and arguments, and to emphasize the importance of the existence of all the elements necessary for the conviction against the Defendant-Appellant. Finally, the oral argument would afford the opportunity to inform this court, why the conviction made was not in accordance with the law and the Constitution and that the conviction should be reversed. Issues Presented A. Whether or not the judgment violated the Defendant’s right under the Sixth Amendment of the Constitution of his right to be informed of the nature and cause of accusation against him. B. Whether or not the Court sufficiently satisfied the elements in violation of an existing law or statute. C. Whether or not the forfeiture the Court followed the proper procedure for the forfeiture of the property involved. Law and Argument First, the judgment does not specify the particular violation committed by the defendant in this case. The US constitution provides that in all criminal prosecutions, “the accused shall enjoy the right to be informed of the nature and cause of the accusation” (US Const. amend VI). Under the Federal Rules on Criminal Procedure, “the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated,” (Fed. R. Crim. P. 7 (2007). The very purpose of the complaint is for the defendant to be made aware of the charges that he or she must meet (State v. Allard, 128 N.H. 437, 514 A.2d 824 (1986) and for sufficient clarity to the defendant to guard against double jeopardy violation in the future (State v. Gahner, 413 N.W.2d 359 (N.D. 1987). As held in the case of United States v. Lazore, 90 F. Supp. 2d 202, 203 (N.D.N.Y. 2000), elements of the offense charged must be included in the indictment and reasonably informs the defendant of the charge to which he must guard against through defenses he may have and enable him to bar future prosecutions for the same offense (2000). Words must sufficiently provide all the elements necessary to describe the offense intended to be penalized without any ambiguity (United States v. Lazore, 90 F. Supp. 2d 202, 203 (N.D.N.Y. 2000). In the case of United States v. Bobo, 344 F.3d 1076 (11th Cir. 2003), the court reversed the convictions of the defendant because the indictment was inadequately drafted, as it did not specify the method used by the defendant to defraud the government necessary to charge him (2003). Thus, for an indictment to be valid, it must not only sufficiently inform the defendant of the charges he must face, but must also describe the facts and circumstances as to apprise the accused of what specific offense that he is charged of (Russell v. United States, 369 U.S. 765, 82 S.Ct. at 1048, 8 L.Ed.2d 240 (1962). In this case, the conviction did not specify what particular statute, rule, regulation or provision of law have been violated, nor the elements for the offense particularly described which, necessarily sufficiently apprise the defendant and violates his right specified under the Sixth Amendment. Secondly, assuming that the Court had indeed specified the violation under existing statutes such as Archaeological Resources Protection Act (ARPA), which is the law that deals with removal of archaeological resources, the Court failed to specify the elements and to explain if indeed the defendant satisfied these elements which is necessary for his conviction under this statute. Violation of this Act may be committed by any “Unauthorized excavation, removal, damage, alteration, or defacement of archaeological resources on public lands or Indian lands unless a permit was issued for such activity” referred to in the Act (16 U.S.C.A. § 470ee(a), 470cc, 470cc(h)(2) and 470cc(g)(1)). It shall also be unlawful for any person to engage in the “trafficking of archaeological resources,” where the “excavation or removal was wrongful under Federal law (16 U.S.C.A. § 470ee(b)). Under this provision, it shall be unlawful for a person “to sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if such resource was excavated or removed from public lands or Indian lands in violation of (1) the prohibition contained in subsection (a) of this section, or (2) any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.” Finally, it shall also be unlawful for a person to “counsel, procure, solicit, or employ any other person to violate, any prohibition previously mentioned” (16 U.S.C.A. § 470ee(b)). The important elements of this law in order for a person to be considered as having violated the provisions of the Archaeological Resources Protection Act are: a) that the court must have jurisdiction over the case; b) the items must be those considered as “protected items”; c) the act is considered as a “prohibited act” under the law; d) there was a “lack of permission”; and d) finally the “damage amount” specified (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). In order for the court to obtain jurisdiction over a particular case to fall under this law, the act must be committed on a federal or Indian land property (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). In case the act was committed in a state or a private property, the item must have been unlawfully removed under the state or local law or has been moved interstate (United States v. Gerber, 999 F.2d 1112 (7th Cir.1993). For an item to be considered as a “protected item,” the item must be considered as an archaeological resource or one which must either be the material remains of past human life or activities of archaeological interest, item is over 100 years of age, or it is of archaeological interest defined in the regulations (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). Such item must have “information about past human life which can be retrieved by scientific methods and requires the testimony of an archaeologist” (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). The list of items which can be considered as “protected items” include “structures-surface or subsurface, shelters, cooking and storage structures, mounds, earthworks, gardens, hearths, holes, middens, rock alignments, refuse pits, post, tools, weapons, containers, clothing, projectiles, ceramics, weaving, human remains, graves; rock carvings, rock shelter, caves; shipwrecks, tackle and cargo.” (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). The prohibited acts are those specified under 16 U.S.C.A. § 470ee (a), (b), (c), (d) already mentioned above. In the commission of the acts under § 470ee (a), (b) and (c), the defendant must “knowingly violate” the said prohibited acts (16 U.S.C.A. § 470ee (d)). Hence, as explained in the case of Attakai v. U.S., 746 F.Supp. 1395 (D.Ariz.1990), the ARPA applies if there is a “purposeful excavation and removal of archaeological resources, rather than excavations inadvertently uncovering such resources” (1990). Intentional violation is therefore needed for the ARPA to apply (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). To be considered as a violation of the Act, there must also be a “lack of permission” which means that there was no permit issued by the government either a tribal permit on tribal land or a federal permit, in case there is the tribe has a permit code; there is no contract with the government for such services; or the defendant is not a government or tribal employee (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). The damage amount on the other hand may either be the archaeological value, the commercial value, or the costs of restoration and repair (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). The archaeological value is the “costs of retrieval of scientific information” such as “the cost of research design, field work, lab analysis, report preparation,” which would have been expended had it not been for the violation (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). The commercial value is the fair market value before the violation was done, taking into consideration the “sales price, offered price, catalogue price and professional appraisal” (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). The cost of restoration and repair is the cost incurred for emergency restoration work, and costs for “reconstruction of the resource, stabilization of the resource, surface stabilization, research necessary to carry out stabilization, barriers or protective devices to protect further, analysis of remaining portion of resource and reburial of human remains per religious custom, and reports needed” (Sherry Hutt, American Law Institute - American Bar Association Continuing Legal Education, 2007). The court, assuming that the ARPA was the law referred to as having been violated by the defendant, the court still was not able to satisfy the given elements above. The removal of the alleged item was taken from a private property adjacent to the park and not on a federal land nor on an Indian land property. Although in § 470ee(c) of the US Code and in the case of United States v. Gerber, 999 F.2d 1112 (7th Cir.1993), it explained that a person may still be held liable for violation of ARPA even if the removal of the item was from a private land, so long as the removal was in violation of an existing provision, rule, regulation, ordinance, or permit under State or local law and was sold, purchased, exchanged, transported, received, or offered to sell, purchased, or exchanged, in interstate or foreign commerce (16 U.S.C.A. § 470ee(c), this was not existent in the case at bar. There was no allegation nor a mention that the removal from the said private property was in violation of an existing provision, rule, regulation, ordinance, or permit under State or local law and no evidence was presented to sufficiently prove that the object or item found was sold, purchased, exchanged, transported, received, or was offered to sell, purchase, or exchange, in interstate or foreign commerce. And even if indeed the item taken was in violation of any state or local law, which should have been mentioned by the Court there was still a need to prove that the said item was transported as provided under 16 U.S.C.A. § 470ee(c). Also in the case at bar, the defendant according to the facts of the case, “inadvertently crossed the property line into the park.” This reveals the lack of intent or lack of purposely violating the ARPA, which is an essential element of this Act. Hence, the instruction to the jury to take only into consideration as to whether the Defendant crossed the line into the park or not, without informing them that intent to violate the law is necessary for conviction of this Act, is an improper instruction which misled the jury into making the decision. It is also questionable if the rare bowie knife is considered as a “protected item” under the Act because it was there was no sufficient proof that it is considered as an archaeological resource, as there was neither information that it was a material remain nor an expert testimony of an archaeologist to prove such. There was also no proof that such item is atleast 100 years old as required under the Act (Carla C. Mattix, American Law Institute – American Bar Association Continuing Legal Education, 2003). Thirdly, although under the Act the government may forfeit “archeological resources, vehicles and equipment involved” in violation of the Act (470gg(b), it does not follow that upon conviction, criminal forfeiture automatically follows, as the government still has to establish the connection between the offense that was committed and the property subject of forfeiture (U.S. v. Cheeseman, 593 F.Supp.2d 682 (D. Del., 2009). In the case at bar, the Court did not present proof or connection that indeed the 2007 Chevy Blazer which the government tried to forfeit, was used or involved in the offense of unlawful removal of the alleged archaeological resource. Furthermore, since the offense involving the violation of the ARPA was not sufficiently proven, the forfeiture in this case also lacks support under the law. Fourthly, the Court in criminal forfeitures especially when there is a third party having legal interest in the property being forfeited by the government, the court is required to have an ancillary proceeding of such interest following the conclusion of a criminal case, and a hearing to be conducted except in cases of money judgment (Fed. R. Crim. P. 32.2© (2007). Under this procedure, the court “orders the forfeiture of the defendant’s interest in the property (Fed. R. Crim. P. 32.2© (2007). The court then carries out a separate proceeding where all potential third party claimants are given the chance to challenge the forfeiture by asserting a superior interest in the property (Fed. R. Crim. P. 32.2© (2007). This would not however tackle the issue of re-litigation of the forfeitability of property as it is only aimed at determining whether any third party has a legal interest in the forfeited property (Fed. R. Crim. P. 32.2© (2007). Furthermore, under the Rules, there must be a jury determination as to whether the government has established the connection or nexus between the property and the offense committed by the Defendant (Fed. R. Crim. P. 32.2(b)(4) (2007). In the case at bar, the Bank, having a third party claim over the vehicle involved, the Court should have given a fair opportunity through a separate hearing as to the Bank’s interest that has to be protected and a jury determination sufficient to establish the nexus between the property and the offense committed by the Defendant. The court did not have a separate proceeding nor have a jury determination as provided for under the Federal Rules on forfeiture. Finally, the Court not having satisfied the basic principle in criminal law that the other party must prove Defendant’s guilt beyond reasonable doubt (Kenneth Broun, “The Burdens of Proof and Presumptions,” 2006) or moral certainty of the accused’s guilt after a ‘full, fair, and impartial consideration of all the evidence’ (Victor v. Nebraska, 511 U.S. 1 (1994), the conviction then must be reversed. Conclusion WHEREFORE, for the reasons stated herein, the Appellant respectfully prays that the Court finds that an invalid conviction and an insufficient satisfaction of the elements of the offense as well as the forfeiture proceedings has been made by the district court and reverse and remand for further proceedings consistent with that finding. Respectfully submitted this ___th day of April, 2009. References Attakai v. U.S., 746 F.Supp. 1395 (D.Ariz.1990). Broun, Kenneth. “The Burdens of Proof and Presumptions.” 2 McCormick on Evidence. 2006. § 341. Fed. R. Crim. P. 7, 32.2(c) & 32.2(b)(4) (2007). Sherry Hutt. Federal Preservation Laws Protecting Archaeological Sites And Native American Cultural Resources. American Law Institute – American Bar Association Continuing Legal Education. ALI-ABA Course of Study. Washington, D.C.: National NAGPRA Program. April 26 - 27, 2007. Carla C. Mattix. Law Enforcement on Federal Lands – Protection of Cultural Resources. American Law Institute – American Bar Association Continuing Legal Education. ALI-ABA Conference. Washington, D.C.: US Department of the Interior. September 18-19, 2003. Russell v. United States, 369 U.S. 765, 82 S.Ct. at 1048, 8 L.Ed.2d 240 (1962). State v. Allard, 128 N.H. 437, 514 A.2d 824 (1986). State v. Gahner, 413 N.W.2d 359 (N.D. 1987). US Const. amend VI United States v. Bobo, 344 F.3d 1076 (11th Cir. 2003). U.S. v. Cheeseman, 593 F.Supp.2d 682 (D. Del., 2009). United States v. Gerber, 999 F.2d 1112 (7th Cir.1993). United States v. Lazore, 90 F. Supp. 2d 202, 203 (N.D.N.Y. 2000). 16 U.S.C.A. § 470ee(a), 470ee(b), 470ee(c), 470ee(d), 470cc, 470cc(h)(2) and 470cc(g)(1). Victor v. Nebraska, 511 U.S. 1 (1994). Read More