Pro Se Chicago's Weblog

August 9, 2012

Family Law – U.S. Consumer Protection Act limits amount of garnishment for child support


The consumer protection act REQUIRES that no more than 65 % of you income go towards paying back child support (this 65% includes  payment of taxes first, then child support, then any other garnishment of wages – total garnishment can be no more than 65 % if in arrears and 60 % of wages if not in arrears for child support).

From “Big Divorce Book” I Compiled:

11. “Title III, Consumer Protection Act”  Summary of authority and purpose of 15 USC § 1671 et seq. and 29 CFR Part 870 regarding maximum payments that may Be withheld under federal law from Obligor …………………………………………….  50-51

12. 15 USC § 1671 et seq. Federal Wage Garnishment Law (Title III of the Consumer Protection Act) & corresponding 29 CFR Part 870 …………………………………….  51-56

Mandates that when child support is an issue that federal and State taxes have priority over child support or other debts. Provides that child support has priority over other debts except for taxes. Provides that if the Obligor is not living with and supporting a spouse or child that no more than a total of 60% of net wages may be withheld from a paycheck and no more than 65% of net wages may be withheld from a paycheck if Obligor is more than 12 weeks in arrears ………………………………..   52-54

TITLE 15 > CHAPTER 41 > SUBCHAPTER II > § 1671. = 15 U.S.C. § 1671      Congressional findings and declaration of purpose

(a) Disadvantages of garnishment The Congress finds:

(1) The unrestricted garnishment of compensation due for personal services encourages the making of predatory extensions of credit. Such extensions of credit divert money into excessive credit payments and thereby hinder the production and flow of goods in interstate commerce.

(2) The application of garnishment as a creditors’ remedy frequently results in loss of employment by the debtor, and the resulting disruption of employment, production, and consumption constitutes a substantial burden on interstate commerce.

(3) The great disparities among the laws of the several States relating to garnishment have, in effect, destroyed the uniformity of the bankruptcy laws and frustrated the purposes thereof in many areas of the country.

(b) Necessity for regulation On the basis of the findings stated in subsection (a) of this section, the Congress determines that the provisions of this subchapter are necessary and proper for the purpose of carrying into execution the powers of the Congress to regulate commerce and to establish uniform bankruptcy laws.

15 U.S.C. § 1672. Definitions

For the purposes of this subchapter:

(a) The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.

(b) The term “disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.

(c) The term “garnishment” means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.

15 U.S.C. § 1673. Restriction on garnishment

(a) Maximum allowable garnishment Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed

(1) 25 per centum of his disposable earnings for that week, or

(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206 (a)(1) of title 29 in effect at the time the earnings are payable,

whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).

(b) Exceptions (1) The restrictions of subsection (a) of this section do not apply in the case of (A) any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by State law, which affords substantial due process, and which is subject to judicial review.

(B) any order of any court of the United States having jurisdiction over cases under chapter 13 of title 11.

(C) any debt due for any State or Federal tax.

(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed— (A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual’s disposable earnings for that week; and

(B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week;

except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.

(c) Execution or enforcement of garnishment order or process prohibited No court of the United States or any State, and no State (or officer or agency thereof), may make, execute, or enforce any order or process in violation of this section.

15 U.S.C. § 1674. Restriction on discharge from employment by reason of garnishment

(a) Termination of employment No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.

(b) Penalties Whoever willfully violates subsection (a) of this section shall be fined not more than $1,000, or imprisoned not more than one year, or both.

15 U.S.C. § 1676. Enforcement by Secretary of Labor

(If someone violates this law you should complain to the U.S. Dept of Labor)

The Secretary of Labor, acting through the Wage and Hour Division of the Department of Labor, shall enforce the provisions of this subchapter.

29 C.F.R. 870 et seq.

Title 29: Labor

PART 870—RESTRICTION ON GARNISHMENT Section Contents

Subpart A—General

29 U.S.C. § 870.1   Purpose and scope. § 870.2   Amendments to this part. Subpart B—Determinations and Interpretations

29 U.S.C. § 870.10   Maximum part of aggregate disposable earnings subject to garnishment under section 303(a). § 870.11   Exceptions to the restrictions provided by section 303(a) of the CCPA and priorities among garnishments.

Subpart A—General § 870.1   Purpose and scope. (a) This part sets forth the procedures and any policies, determinations, and interpretations of general application whereby the Secretary of Labor carries out his duties under section 303 of the CCPA dealing with restrictions on garnishment of earnings, and section 305 permitting exemptions for State-regulated garnishments in certain situations. While the Secretary’s duties under section 303 include insuring that certain amounts of earnings are protected, such duties do not include establishing priorities among multiple garnishments, as such priorities are determined by other Federal statutes or by State law.

(b) Functions of the Secretary under the CCPA to be performed as provided in this part are assigned to the Administrator of the Wage and Hour Division (hereinafter referred to as the Administrator), who, under the general direction and control of the Assistant Secretary, Wage and Labor Standards Administration, shall be empowered to take final and binding actions in administering the provisions of this part. The Administrator is empowered to subdelegate any of his duties under this part. Any legal advice and assistance required for administration of this part shall be provided by the Solicitor of Labor.

29 U.S.C. § 870.2   Amendments to this part. The Administrator may, at any time upon his own motion or upon written request of any interested person setting forth reasonable grounds therefor, amend any rules in this part.

Subpart B—Determinations and Interpretations § 870.10   Maximum part of aggregate disposable earnings subject to garnishment under section 303(a). (a) Statutory provision. Section 303 (a) of the CCPA provides that, with some exceptions,

the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed

(1) 25 per centum of his disposable earnings for that week, or

(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 6(a)(1) of the Fair Labor Standards Act of 1938, in effect at the time the earnings are payable.

whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).

(b) Weekly pay period. The statutory exemption formula applies directly to the aggregate disposable earnings paid or payable for a pay period of 1 workweek, or a lesser period. Its intent is to protect from garnishment and save to an individual earner the specified amount of compensation for his personal services rendered in the workweek, or a lesser period. Thus:

(1) The amount of an individual’s disposable earnings for a workweek or lesser period which may not be garnished is 30 times the Fair Labor Standards Act minimum wage. If an individual’s disposable earnings for such a period are equal to or less than 30 times the minimum wage, the individual’s earnings may not be garnished in any amount. (When the minimum wage increases, the proportionate amount of earnings which may not be garnished also increases.) On April 1, 1991, the minimum wage increased to $4.25. Accordingly, the amount of disposable weekly earnings which may not be garnished is $127.50 effective April 1, 1991. (For the period April 1, 1990 through March 31, 1991, the amount that may not be garnished is $114 (30×$3.80).)

(2) For earnings payable on or after April 1, 1991, if an individual’s disposable earnings for a workweek or lesser period are more than $127.50, but less than $170.00, only the amount above $127.50 is subject to garnishment. (For earnings payable during the period April 1, 1990, through March 31, 1991, when the Fair Labor Standards Act minimum wage was $3.80, this range computes to more than $114.00, but less than $152.00.)

(3) For earnings payable on or after April 1, 1991, if an individual’s disposable earnings for a workweek or lesser period are $170.00 or more, 25 percent of his/her disposable earnings is subject to garnishment. (The weekly figure was $152.00 (40×$3.80) for the period April 1, 1990 through March 31, 1991.)

(c) Pay for a period longer than 1 week. In the case of disposable earnings which compensate for personal services rendered in a pay period longer than 1 workweek, the weekly statutory exemption formula must be transformed to a formula applicable to such earnings providing equivalent restrictions on wage garnishment.

(1) The 25 percent part of the formula would apply to the aggregate disposable earnings for all the workweeks or fractions thereof compensated by the pay for such pay period.

(2) The following formula should be used to calculate the dollar amount of disposable earnings which would not be subject to garnishment: The number of workweeks, or fractions thereof, should be multiplied times the applicable Federal minimum wage and that amount should be multiplied by 30. For example, for the period April 1, 1990 through March 31, 1991 when the Federal minimum wage was $3.80 per hour, the formula should be calculated based on a minimum wage of $3.80 ($3.80 multiplied by 30 equals $114; $114 multiplied by the number of workweeks (or fractions thereof) equals the amount that cannot be garnished). As of April 1, 1991, the $4.25 Federal minimum wage replaces $3.80 in the formula (and the amount which cannot be garnished would then be $127.50 multiplied by the number of workweeks (or fractions thereof)). For purposes of this formula, a calendar month is considered to consist of 41/3workweeks. Thus, during the period April 1, 1990 through March 31, 1991 when the Federal minimum hourly wage was $3.80 an hour, the amount of disposable earnings for a 2-week period is $228.00 (2×30×$3.80); for a monthly period, $494.00 (41/3×30×$3.80). Effective April 1, 1991, such amounts increased as follows: for a two-week period, $255.00 (2×30×$4.25); for a monthly period, $552.50 (41/3×30×$4.25). The amount of disposable earnings for any other pay period longer than 1 week shall be computed in a manner consistent with section 303(a) of the act and with this paragraph.

(3) Absent any changes to the rate set forth in section 6(a)(1) of the Fair Labor Standards Act, disposable earnings for individuals paid weekly, biweekly, semimonthly, and monthly may not be garnished unless they are in excess of the following amounts:

Date Minimum amount Weekly amount Biweekly amount Semi-monthly amount Monthly rate Jan. 1, 1981 $3.35 $100.50 $201.00 $217.75 $435.50 Apr. 1, 1990 3.80 114.00 228.00 247.00 494.00 Apr. 1, 1991 4.25 127.50 255.00 276.25 552.50

(4) Absent any changes to the rate set forth in section 6(a)(1) of the Fair Labor Standards Act, if the disposable earnings are less than the following figures, only the difference between the appropriate figures set forth in paragraph (c)(3) of this section and the individual’s disposable earnings may be garnished.

Date Minimum amount Weekly amount Biweekly amount Semi-monthly amount Monthly rate Jan. 1, 1981 $3.35 $134.00 $268.00 $290.33 $580.67 Apr. 1, 1990 3.80 152.00 304.00 329.33 658.67 Apr. 1, 1991 4.25 170.00 340.00 368.33 736.67

For example, in April of 1990, if an individual’s disposable earnings for a biweekly pay period are $274.00, the difference between $228.00 and $274.00 (i.e., $46.00) may be garnished.

(5) If disposable earnings are in excess of the figures stated in paragraph (c)(4) of this section, 25% of the disposable earnings may be garnished.

(d) Date wages paid or payable controlling. The date that disposable earnings are paid or payable, and not the date the Court issues the garnishment order, is controlling in determining the amount of disposable earnings that may be garnished. Thus, a garnishment order in November 1990, providing for withholding from wages over a period of time, based on exemptions computed at the $3.80 per hour minimum wage then in effect, would be modified by operation of the change in the law so that wages paid after April 1, 1991, are subject to garnishment to the extent described in paragraphs (b) and (c) of this section on the basis of a minimum rate of $4.25 per hour. This principle is applicable at the time of the enactment of any further increase in the minimum wage.

29 U.S.C. § 870.11   Exceptions to the restrictions provided by section 303(a) of the CCPA and priorities among garnishments. top (a)(1) Section 303(b) of the Consumer Credit Protection Act provides that the restrictions in section 303(a) do not apply to:

(i) Any debt due for any State or Federal tax, or

(ii) Any order of any court of bankruptcy under Chapter XIII of the Bankruptcy Act.

(2) Accordingly the Consumer Credit Protection Act does not restrict in any way the amount which may be withheld for State or Federal taxes or in Chapter XIII Bankruptcy Act proceedings.

(b)(1) Section 303(b) provides the following restrictions on the amount that may be withheld for the support of any person (e.g. alimony or child support):

(A) Where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is issued), 50 per centum of such individual’s disposable earnings for that week; and

(B) Where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week; except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve week period which ends with the beginning of such workweek.

(2) Compliance with the provisions of section 303(a) and (b) may offer problems when there is more than one garnishment. In that event the priority is determined by State law or other Federal laws as the CCPA contains no provisions controlling the priorities of garnishments. However, in no event may the amount of any individual’s disposable earnings which may be garnished exceed the percentages specified in section 303. To illustrate:

(i) If 45% of an individual’s disposable earnings were garnished for taxes, and this garnishment has priority, the Consumer Credit Protection Act permits garnishment for the support of any person of only the difference between 45% and the applicable percentage (50 to 65%) in the above quoted section 303(b).

(ii) If 70% of an individual’s disposable earnings were garnished for taxes and/or a Title XIII Bankruptcy debt, and these garnishments have priority, the Consumer Credit Protection Act does not permit garnishment either for the support of any person or for other debts.

(iii) If 25% of an individual’s disposable earnings were withheld pursuant to an ordinary garnishment which is subject to the restrictions of section 303(a), and the garnishment has priority in accordance with State law, the Consumer Credit Protection Act permits the additional garnishment for the support of any person of only the difference between 25% and the applicable percentage (50–65%) in the above quoted section 303(b).

(iv) If 25% or more of an individual’s disposable earnings were withheld pursuant to a garnishment for support, and the support garnishment has priority in accordance with State law, the Consumer Credit Protection Act does not permit the withholding of any additional amounts pursuant to an ordinary garnishment which is subject to the restrictions of section 303(a).

November 19, 2011

How to apply for change in child support payments


Please be aware that the courts in Illinois, especially Cook County do NOT follow the law and no government agency, federal or state, has responded to our complaints. Please help by complaining to your state and federal senators and members of the house that an investigation and remedy are needed. Support organizations that are working for justice in divorce courts. This is theoretically how it works, but individual judges in divorce cases simply seem to make up their own rules as they go along.

In Illinois, if your circumstances significantly change and you seek a change in your amount of child support as a non-custodial parent, then the laws state that you should apply to the Illinois Department of  Public Aid Child Support Enforcement Unit’s Administrative Law Court for investigation, hearing, and determination of the amount of child support (which includes providing health insurance for the child).

The IDPA, CSEU also manages the State Disbursement Unit which collects and disburses child support payments through guarnishment of wages.

If you are not making payments through the SDU, then you can still apply to be heard by the Adm Law Court by filling out this application – click here.

The trial court does not  have the jurisdiction to hear motions for enforcement of child  support orders or motions for change in child support, until AFTER the Adm Law Court makes a recommendation. Then the trial court will rubber stamp the recommendation if the parents agree or will hold hearings and make decisions if the parents disagree on the payments.

The Domestic Relations Courts in Cook County have been for two decades ILLEGALLY hearing these motions instead of waiting for a recommendation by the Adm Law courts!  ALL SHOULD PROTEST BY APPLYING TO THE CHILD SUPPORT ENFORCEMENT SERVICES DIVISION WITH THIS APPLICATION AND BY MAKING OBJECTIONS IN THE TRIAL COURTS.

WE ALSO SUGGEST YOU COPY THIS COMPENDIUM OF THE RELATIVE FEDERAL AND STATE LAWS THAT IS SUMMARIZED I THE TABLE OF CONTENTS IN OUR BIG DIVORCE BOOK HERE AND PRESENT IT TO YOUR TRIAL COURT AS A “MEMORANDUM OF LAW”.

Make sure to read this booklet by the federal government that is a comprehensive guide to all issues in child support here.

GOOD LUCK!

June 10, 2009

Sample Appeal of Wrongful Conviction


I have now filed my Illinois Appellate Court appeal of my wrongful conviction for aggravated battery of a correctional officer. Sgt. Anthony Salemi had attacked me, falsified his records, committed perjury, and with the help of Nifong-like prosecutorial misconduct of ASAs Andrew Dalkin and John Maher and extreme judicial misconduct by Judge Joseph Kazmierski, I was convicted and sentenced to two years in the Illinois Dept. of Corrections plus one year of mandatory supervised release.

I served the minimum 6 months and the full supervised release and was not able to appeal due to illegal conduct of staff at the Cook County Dept. of Corrections and Illinois Dept. of Corrections where I was held and due to damage to my health requiring several hospitalizations within the last year since my release on March 27, 2008 from prison. The damage to my health was a result of torture at the CCDOC and IDOC by ignorant, sociopathic, poorly trained officers and incompetent medical staff (with the exception of Dr. Baker). The social workers even told me they purposely were told not to allow me to use the law library. My medications were withheld in illegal acts of willful indifference to medical needs.

I have informed the FBI and asked them to prosecute for felony conspiracy to violate rights under color of law, etc.

I will never forget the comment to me at CCDOC by Sgt. Molevetti “We got you on one made charge so I can write anything I want and get you on another.” Officer Levy said the same thing. It appears that falsification of records is common practice at CCDOC. We need to take him down and jail him too!

As soon as I win this one, the mother of all civil rights suits will be filed against these creeps. Any officer who has aided and abetted this wrongful conviction is a target in my book to be arrested, removed as an officer, and jailed for felony conspiracy to violate rights under color of law under federal law.

I strongly suggest that ANY officer or CCDOC staff who has knowledge about this wrongful conviction march over to the FBI on Roosevelt Road, ask for a duty agent and confess and turn in the corupt officers and sergeants. The time is NOW to clean up the CCDOC and get rid of decayed and dead wood! If you don’t turn them in, you are part of the corruption and are condoning it! I have no sympathy for you!

You can read my appeal and the evidence of innocence and Sgt. Salemi’s guilt along with the incomptence of Inv. Sofus, as well as the prosecutorial misconduct at: Appeal-of-Wrongful-Conviction-Battery-Shelton-Illinois-2009

Note that the appeal exceeds the 50 pages allowed by the Appellate Court. I have written a motion for leave to file this 82 page appeal due to the extreme prosecutorial and judicial misconduct resulting in 18 different issues justifying appeal and overturning verdict.

Note that the appendix has case law on spoilation of or failure to produce critical evidence, self-representation, and insufficient indictments – all what I have already posted on this site elsewhere.

October 24, 2008

Outrageous Government Conduct – Not Just for Drug Cases!


IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

 

People of the State of Illinois                             )

                        Plaintiff                                     )

                        v.                                             )           No. 05 CR 12718

Linda Shelton                                                   )

                        Defendant                                 )           Honorable Judge Kazmierski

                                                                        )                       presiding

 

 

MEMORANDUM OF LAW

OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE

 

                NOW COMES, the Defendant, Linda L. Shelton, Pro Se who respectfully submits this memorandum of law as follows:

 

The Orphan Doctrine of Outrageous Government Conduct

Otherwise known as the criminal defense of

DUE PROCESS

Proof that it is alive and well in Illinois

The doctrine of “outrageous conduct,” sometimes referred to as “outrageous misconduct,” was introduced by the Supreme Court. In the course of discussing the entrapment defense, the Court speculated that:  “[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction ….” United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637, 1643 (1973). The Russell court went on to state that in order to rise to the level of outrageous, the misconduct must be of such a nature that it violates “‘fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment.” Russell, 411 U.S. at 432, 36 L. Ed. 2d 366, 93 S. Ct. at 1643, quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 4 L. Ed. 2d 268, 80 S. Ct. 297, 303 (1960).

The outrageous-misconduct defense was further addressed by the Supreme Court in Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976). “Police involvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.”  Id. 1653 n.7

In Hampton, the defendant was convicted of distributing heroin, despite his argument that because the heroin had been supplied by a government informer and sold by the defendant to an undercover agent, the defendant’s due process rights had been violated. The Supreme Court affirmed the conviction but wrote three separate opinions. The plurality opinion found that neither the defense of entrapment nor the defense of outrageous conduct was available to the defendant because the defendant was predisposed to commit the crime. The plurality opinion stated, “If the police engage in illegal activity in concert with a defendant beyond the scope of their duties[,] the remedy lies[,] not in freeing the equally culpable defendant[,] but in prosecuting the police under the applicable provisions of state or federal law.” Hampton, 425 U.S. at 489, 48 L. Ed. 2d 113, 96 S. Ct. at 1650 (plurality opinion of Rehnquist, J., joined by Burger and White, JJ.). Two justices concurred in the result but refused to foreclose the possibility of the fundamental-fairness defense even where predisposition is shown. Hampton, 425 U.S. at 491-95, 48 L. Ed. 2d 113, 96 S. Ct. at 1650-53 (Powell, J., concurring, joined by Blackmun, J.). On the other hand, the dissenting justices believed that the behavior of the law enforcement officials was sufficiently offensive to bar a conviction. Hampton, 425 U.S. at 495-500, 48 L. Ed. 2d 113, 96 S. Ct. at 1653-55 (Brennan, J., dissenting, joined by Stewart and Marshall, JJ.). Accordingly, Hampton stands for the proposition that even though proof of predisposition to commit a crime will bar the application of the entrapment defense, fundamental fairness will not permit any defendant to be convicted of a crime in which police conduct is outrageous. See United States v. Twigg, 588 F.2d 373, 378-79 (3rd Cir. 1978).

            “The due process defense of outrageous police conduct was elevated from theory to reality in United States v. Twigg, 588 F.2d 373, 377 (3rd Cir. 1978). That court reversed convictions of two defendants, because ‘the nature and extent of police involvement … was so overreaching as to bar prosecution of the defendants as a matter of due process of law.’…  The State has argued that this due process defense…our [Illinois] supreme court has conclusively rejected…in People v. Cross, 77 Ill.2d 396, 33 Ill.Dec. 285, 396 N.E.2d 812 (Ill. 1979).  We believe that… Cross should not be interpreted as a bar to the due process defense.” People ex rel Difanis v. Boston, 92 Ill.App.3d 962, 416 N.E.2d 333, 336-337 (Ill.App. 4 Dist. 1981).

 

In People v. Ming, 316 Ill.App. 1274, 250 Ill.Dec. 412, 738 N.E.2d 628 (Ill.App. 5 Dist. 2000) the court extensively discussed the defenses of entrapment and outrageous government conduct, holding that the defense of outrageous government conduct exists in Illinois, even if it has never been successfully employed:

“…[T]he outrageous [government] conduct defense looks at the government’s behavior.  See United States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984).…  One circuit of the United States Court of Appeals has declared the defense dead (United States v. Boyd, 55 F.3d 239 (7th Cir. 1995))… First, we point out that decisions of United States district courts and courts of appeal are not binding on Illinois courts. See City of Chicago v. Groffman, 68 Ill. 2d 112, 118, 368 N.E.2d 891, 894 (1977). Second, it is noteworthy that Boyd dealt with prosecutorial misconduct, while the instant case deals instead with the alleged misconduct of an undercover drug agent. Finally, we disagree with the Boyd court’s holding that the doctrine is dead.  Contrary to the holding in Boyd, the fact remains that most jurisdictions at least acknowledge that such a defense exists.  For example, United States v. Mosley, 965 F.2d 906, 909 (10th Cir. 1992), cited cases from 11 circuits, all of which agreed that the defense of outrageous [government] conduct exist.” Ming. Id.

“One of the few cases to actually advance the defense of outrageous police misconduct from pure theory to reality is United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978), which is distinguishable from the case before us. In Twigg, a government informant suggested the establishment of a laboratory to manufacture ‘speed.’ The government supplied a chemical used to make the drug, made arrangements with chemical supply houses to provide the other ingredients, and provided the production site, and a government agent was completely in charge of the operation. Thus, Twigg involved an egregious case of government overinvolvement in which the government’s undercover operative essentially concocted and conducted the entire illicit scheme. The Twigg court characterized the police conduct as ‘so overreaching as to bar prosecution of the defendants as a matter of due process of law.’ Twigg, 588 F.2d at 377. In a footnote, the Twigg court stated:

 

FN ‘We are adhering to Justice Powell’s reasoning [in Hampton] that in evaluating whether government conduct is outrageous, the court must consider the nature of the crime and the tools available to law enforcement agencies to combat it.’ Twigg, 588 F.2d at 378 n.6.”

 

Ming. Id.

“The outrageous-conduct defense is distinct from the entrapment defense because while the entrapment defense looks to the state of mind of the defendant in order to determine whether he or she was predisposed to commit the crime being prosecuted (Jacobson v. United States, 503 U.S. 540, 118 L. Ed. 2d 174, 112 S. Ct. 1535, 1540 (1992)), the outrageous-conduct defense looks at the government’s behavior. See United States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984). The defense of outrageous conduct is premised upon the notion that the due process clause imposes limits upon how far the government can go in detecting crime irrespective of the character of the target. See People v. Hirsch, 221 Ill. App. 3d 772, 779, 582 N.E.2d 1228, 1232 (1991). We are cognizant that ‘[t]he banner of outrageous misconduct is often raised but seldom saluted’ (United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993)) and that one circuit of the United States Court of Appeals has declared the defense dead (United States v. Boyd, 55 F.3d. 239 (7th Cir. 1995)). In addressing whether or not the doctrine is valid, the Boyd court stated:

 

FN ‘Today we let the other shoe drop, and [we] hold that the doctrine does not exist in this circuit. The gravity of the prosecutors’ misconduct is relevant only insofar as it may shed light on the materiality of the infringement of the defendants’ rights; it may support, but it can never compel, an inference that the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted.’ Boyd, 55 F.3d at 241.”

 

Ming. Id.

 “Several Illinois cases have discussed the defense of outrageous government conduct with respect to undercover drug officers and recognize its validity, including People v. D’Angelo, 223 Ill.App.3d 754, 166 Ill.Dec. 217, 585 N.E.2d 1239 (1992).  In both People v. Johnson, 123 Ill.App.3d 363, 78 Ill.Dec. 829, 462 N.E.2d 948 (1984) and People ex rel Difanis v. Boston, [supra], the defense of outrageous government conduct was recognized. The D’Angelo court found that because defendant failed to raise the issue of outrageous conduct in his posttrial motion, the issue was waived, but the court legitimized the defense by stating, ‘In any event, we do not believe that the conduct of the government agents in this case is so outrageous that it violates fundamental fairness or shocks the conscience.’ D’Angelo, 223 Ill. App. 3d at 782, 585 N.E.2d at 1257. In both People v. Johnson, 123 Ill. App. 3d 363, 462 N.E.2d 948 (1984), and People ex rel. Difanis v. Boston, 92 Ill. App. 3d 962, 416 N.E.2d 333 (1981), the defense of outrageous governmental conduct was recognized as a separate defense from that of entrapment.… However, none of those courts believed that the conduct complained of rose to the level of outrageousness necessary to bar the action…  In fact, no Illinois case has yet to find outrageous government conduct sufficient to bar the prosecution of the defendant; on the other hand, no Illinois case has denied the doctrine’s validity.  After considering the historical perspective of the doctrine, we hold that it is a valid defense in Illinois. …  A defendant can raise the defense of outrageous [government] conduct if the government was overly involved in the creation of a crime or if the government coerced the defendant into participating [therein].    One of the few cases to actually advance the defense of outrageous government conduct from pure theory to reality is United States v. Twiggs, 588 F.2d 373 (3rd Cir. 1978).    Twigg involved an egregious case of government overinvolvement in which the government’s undercover operative essentially concocted and conducted the entire illicit scheme.  The Twigg court characterized the police conduct as ‘so overreaching as to bar prosecution of the defendants as a matter of due process of law.’    Should the proper factual situation arise, courts should apply the doctrine of outrageous police misconduct and dismiss the charges against a defendant.”  Ming. Id.

“After considering the historical perspective of the doctrine, we hold that it is a valid defense in Illinois.” Ming. Id.

 “Whether the circumstances of a case demonstrate outrageous government conduct is a question of law for the court to decide. See People v. Johnson, 123 Ill. App. 3d 363, 373-74, 462 N.E.2d 948, 955 (1984). A defendant can raise the defense of outrageous conduct if the government was overly involved in the creation of a crime or if the government coerced the defendant into participating. See United States v. Mosley, 965 F.2d 906, 912 (10th Cir. 1992)…. Whether or not conduct is outrageous must be determined on an ad hoc basis and cannot be reduced to a specific formula. See United States v. Santana, 6 F.3d 1, 6 (1993)…. [The Santana case gave guidelines to determine outrageous government conduct in drug sting cases where the defendants claim entrapment.] While the Santana court appreciated the district court’s efforts to structure such a test, it found that ‘there is simply no way to reduce the myriad [of] combinations of potentially relevant circumstances to a neat list of weighted factors without losing too much in the translation.’ Santana, 6 F.3d at 6. We agree with the Santana court that there is no universal litmus test for a court to utilize to determine whether or not conduct is outrageous…. Ultimately, the outrageousness of a police officer’s actions must be evaluated by (1) taking into account the totality of the relevant circumstances (Santana, 6 F.3d at 7) and (2) considering whether or not the totality of the circumstances show misconduct of such a nature that it violates fundamental fairness and is shocking to our universal sense of justice. See Russell, 411 U.S. at 432, 36 L. Ed. 2d at 366, 93 S. Ct. at 643.” Ming. Id.

 

The court in United States v. Diaz, 189 F. 3d 1239 (1999) stated the following: “In sum, there is no binding Supreme Court authority recognizing a defense based solely upon an objective assessment of the government’s conduct in inducing the commission of crimes. Non-binding dicta of the Court, indicating that there may be such a defense, has been recanted by its author based upon reasoning later adopted by a majority of the Court in United States v. Payner, 447 U.S. 727, 737 n. 9 (further citation omitted). Moreover, this court has recognized the availability of this defense only in dicta because, in every case in which the issue has been raised, the government’s conduct has been held not to have been ‘outrageous.’ The only case squarely holding that an objective assessment of the government’s conduct in a particular case may bar prosecution without regard for the defendant’s predisposition [United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), cited extensively by Mr. Diaz] has been greatly criticized, often distinguished and, recently, disavowed in its own circuit.” Diaz, Id.

“In considering this argument, we are not as sanguine as the government, nor even as literary or mythical. See Rec. vol. I, doc. 16, at 23 (‘this court should similarly reject the outrageous government conduct defense as a chimera or unicorn ­ often hunted but never taken into captivity’). We note that the disaffection with the doctrine does not yet indicate its total impossibility. Rather, as Justice Powell noted in Hampton v. United States, 425 U.S. 484 (1976), while rejecting the plurality’s conclusion that neither due process principles nor supervisory powers could support a bar to conviction in any case where the Government is able to prove predisposition:

 

I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvment in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.

 

Hampton, 425 U.S. at 495 n.7 (Powell, J., concurring) (emphasis added).” Diaz, Id. 

 

United States Attorney’s View of Outrageous Government Conduct

[for purposes of understanding the viewpoint of a “prosecutor”]

 

In U.S. Attorney’s Manual:

“While the essence of the entrapment defense is the defendant’s lack of predisposition to commit the offense, the ‘defense’ of outrageous government conduct presupposes predisposition but seeks dismissal of the indictment on the ground that the conduct of law enforcement agents was ‘so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.’ United States v. Russell, 411 U.S. 423, 431-32 (1973). Thus, the outrageous government conduct defense is not really a defense at all. Rather, it is a claim that the institution of the prosecution suffers from a purely legal defect; as such, the claim is waived unless raised prior to trial under Fed. R. Crim. P. 12(b)(1) and (b)(2). See, e.g., United States v. Henderson-Durand, 985 F.2d 970, 973 & n. 5 (8th Cir.), cert. denied, 510 U.S. 856 (1993); United States v. Duncan, 896 F.2d 271, 274 (7th Cir. 1990); United States v. Nunez-Rios, 622 F.2d 1093, 1099 (2d Cir. 1980).

The Supreme Court has never held that the government’s mere use of undercover agents or informants, or the use of deception by them, gives rise to a due process violation, although in Russell it left open that possibility. The requisite level of outrageousness could be reached only where government conduct is so fundamentally unfair as to be ‘shocking to the universal sense of justice.’ Id. at 432. No court of appeals has held that a predisposed defendant may establish a due process violation simply because he purportedly was induced to commit the crime by an undercover agent or informant. See, e.g., United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir.) (not outrageous for government ‘to infiltrate an ongoing criminal enterprise, or to induce a defendant to repeat, continue, or even expand criminal activity.’), cert. denied, 115 S. Ct. 347 (1994). Defendants who claim to be victims of outrageous government conduct sometimes also argue that the district court should dismiss the indictment in the exercise of its supervisory power. In the absence of a due process violation, however, a district court has no authority to dismiss an indictment on this basis. See, e.g., United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991).” See U.S. Attorney’s Manual

 

Historical Context

[Note: that outrageous government conduct affirmative defenses have

almost entirely been limited to police drug stings and

undercover operations related to drugs and a few cases of proscutorial misconduct-there is no precedence providing guidelines for its use in other situations]

 

In United States v. Santana and Fuentes, 6 F. 3d 62 (1993) the court stated:

“Outrageous misconduct is the deathbed child of objective entrapment, a doctrine long since discarded in the federal courts.  See, e.g., Sherman v. United States, 356 U.S. 369, 372 (1958) (rejecting an objective entrapment approach in favor of a subjective approach).  The doctrine’s midwife was Chief Justice Rehnquist (then Justice Rehnquist), who, in the course of championing a subjective theory of entrapment, speculated that the Court might ‘some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. . . .’  United States v. Russell, 411 U.S. 423, 431-32 (1972). Seizing upon this dictum, the defendant in Hampton v. United States, 425 U.S. 484 (1975), attempted to construct an outrageous misconduct defense rooted in the due process clause. Hampton lost his case but succeeded in legitimating the doctrine, albeit precariously.FN4

FN4 In Hampton, a concurrence combined with the plurality to reject the appeal.  However, the two concurring Justices switched sides to form a different majority vivifying the doctrine of outrageous misconduct. See Hampton, 425 U.S. at 491-95 (Powell, J. concurring).


Although it has a comfortably familiar ring, ‘outrageous misconduct’ is

surpassingly difficult to translate into a closely defined set of behavioral norms. The broadest hints as to the content of the outrageousness standard lie in the dictum that spawned the doctrine. Inasmuch as Rochin  v. California, 342  U.S. 165 (1952), is the case irrefragably linked with the legal rubric of fundamental fairness, one hint is found in Justice Rehnquist’s citation to Rochin.  See Russell, 411 U.S. at 431-32. A second hint is contained in Russell’s explicit equation of outrageous misconduct with violations of ‘that ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.’ Russell, 423 U.S. at 432 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960)). Picking up on these clues, most courts apply a variant on the fundamental fairness standard as a sounding line for outrageousness. See Mosley, 965 F.2d at 910 (collecting formulations).  Although this standard lacks mathematical precision, we agree with Justice Frankfurter that imprecision of this nature does not leave courts without  adequate guidance; rather, ‘[i]n dealing not  with the machinery of government but with human rights, the absence of formal exactitude, or want of fixity of  meaning, is not an unusual or even regrettable attribute of constitutional provisions.’ Rochin, 342 U.S. at 169.          
           The banner of outrageous misconduct is often raised but seldom saluted.  Even though one respected jurist contends that the doctrine belongs in the dustbin of history, see United States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir. 1989) (Easterbrook, J., concurring),
FN5 case after case confirms its continued existence. See Moran v. Burbine,  475 U.S. 412, 432 (1985) (‘We do not question that on facts more egregious than those presented here police  deception might  rise to  a level  of a  due process violation’); United  States v. Mosley,  965 F.2d 906, 909 (10th Cir. 1992) (collecting cases  from eleven circuits).  Be that as it may, the doctrine is moribund; in practice, courts have rejected its application with almost monotonous regularity. See, e.g., United States v. Barnett, 989 F.2d 546, 560 (1st Cir. 1993), petition for cert. filed (June 28, 1993) (No. 93-5018); United States v. Lilly, 983 F.2d 300, 309-10 (1st Cir.  1992); United States v. Marino, 936 F.2d 23, 27 (1st Cir. 1991); United States v. Rosen, 929 F.2d 839, 842 (1st Cir.), cert. denied, 112 S. Ct. 77 (1991); United States v. McDowell, 918 F.2d 1004, 1008-09 (1st  Cir. 1990); see also United States v. Panitz, 907 F.2d 1267, 1272-73 (1st Cir.  1990) (collecting pre-1990 First Circuit United States cases declining to invoke the doctrine); United States v. Bogart, 783 F.2d 1428,  1434-38  (9th Cir.) (summarizing elevant  case law), vacated in part on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986); United States v. Warren, 747 F.2d 1339,  1342-43 &  nn. 7-8 (10th Cir. 1984) (collecting precedents from various circuits). Indeed, since the Supreme Court decided Hampton, a federal appellate court has granted relief to a criminal defendant on the basis of the outrageous misconduct defense only once. See United States v. Twigg, 588 F.2d 373, 382 (3d Cir. 1978).  The historical record makes it clear, therefore, that the outrageous misconduct defense is almost never successful.FN6

FN5 In  Judge Easterbrook’s  view, the appropriateness of the government’s decision to supply drugs as part of an undercover operation  presents a ‘political’ question that is quintessentially nonjusticiable.  Miller, 891 F.2d at 1272. With respect, we think this conceptualization stretches the military analogy too far.  We adhere instead to the idea that ‘those charged with th[e] investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.’ United  States  v. District Court, 407 U.S. 297, 317 (1972).

FN6 In addition to Twigg, one court of appeals invoked the doctrine in an alternative holding, see United States v.  Lard, 734 F.2d 1290,  1296 (8th  Cir. 1984), and  another directed  the district court to determine  whether outrageous misconduct should be found on remand, see Bogart, 783  F.2d at 1438.  A smattering of district courts have also applied the outrageous misconduct doctrine to the defendant’s advantage.   See, e.g., United States v. Marshank, 777  F. Supp. 1507, 1524 (N.D.  Cal. 1991); United States v. Gardner, 658 F. Supp. 1573, 1577 (W.D. Pa. 1987); United States v. Batres-Santolino, 521 F. Supp. 744, 751-52 (N.D. Cal. 1981).


          There are two competing visions of the doctrine’s role. One school of thought holds that the defense should be confined to cases involving extreme physical, and possibly psychological, abuse of a defendant.  See United States v. Kelly, 707 F.2d 1460, 1476 n.13 (D.C. Cir.) (per curiam)  (collecting cases),  cert. denied, 464  U.S. 908 (1983).  A second school of thought holds that outrageous misconduct may also function as a kind of supplement to  the entrapment  defense, reserved for  those cases where law enforcement personnel become so overinvolved in a felonious venture that  they can fairly be said either to have ‘creat[ed]”  the crime or to have ‘coerc[ed]’ the  defendant’s participation  in it. Mosley, 965 F.2d at 911-12; see also Bogart, 783 F.2d at 1436-38. This case does not require us to choose between these two conceptions of the doctrine….
               Having traced the evolution of the doctrine of outrageous misconduct, we proceed to consider its applicability in this case. Although what transpired here fits neither of the conventional patterns of outrageous misconduct described above, the district court nonetheless ruled that furnishing the hefty heroin sample (and then losing track of it) comes within the doctrine’s sweep. We conclude, for two independently sufficient reasons, that the district court erred….
          Nevertheless, we do not think that the inquiry into outrageousness can usefully be broken down into a series of discrete components. Almost by definition, the power of a court to control prosecutorial excesses through resort to substantive aspects of the due process clause is called into play only in idiosyncratic situations and such situations are likely to be highly ramified. Where facts are critically important and fact patterns tend to be infinitely diverse, adjudication can often best proceed on a case-by-case basis.  The outrageousness defense falls into this category. Thus, it is unproductive to force the determination of outrageousness into a mechanical mode….
          Let us be perfectly plain. We find that outrageousness, by its nature, requires an ad hoc determination….

At bottom, however, outrageousness is a concept, not a constant. What shocks the conscience in a given situation may be acceptable, though perhaps grim or unpleasant, under a different set of circumstances. Slashing a person’s throat with a sharp knife may be an unrelievedly outrageous course of conduct if one thinks in terms of Jack the Ripper, helpless women, and the shadowy streets of London; the same behavior will be thoroughly acceptable, however, if the knife is a scalpel, the knife-wielder a skilled surgeon performing a tracheotomy, the target a patient, and the venue an operating room. Although we recognize that formulaic tests offer administrative convenience and ease in application, we also recognize that neither life nor law can always be made convenient and easy. So here: there is simply no way to reduce the myriad combinations of potentially relevant circumstances to a neat list of weighted factors without losing too much in the translation. Cf. Borden v. Paul Revere  Life Ins. Co., 935 F.2d 370,  380 (1st Cir. 1991)  (discussing ‘outrageousness’  in the context  of tort liability and concluding that ‘[t]here  is no  universal litmus test that a court can utilize to determine whether behavior is extreme and outrageous’)….

 

[FN presented without text referencing it] FN11 We do not totally reject the possibility, suggested by the court below, that outrageous misconduct may be found apart from situations in which the government has used brutality or induced commission of a crime.  We simply note that the case at hand does not require us to explore this doctrinal frontier….

 

Generally speaking, an outrageous misconduct defense can prosper only if a

defendant’s due process rights have been violated….

            [T]he outrageous misconduct doctrine, no matter how cramped its confines, is not entirely mummified. Should the occasion and the necessity arise, we continue to believe that the law will prove itself adequate to the task of preventing the government from going too far. In the war on crime, as in conventional warfare, some tactics simply cannot be tolerated by a civilized society.”


Santana, Id.

 

 

Dated: April 4, 2007

                                                                        Respectfully submitted,

 

 

                                                                        Linda L. Shelton

                                                                        Pro Se Defendant

Linda Lorincz Shelton, Ph.D., M.D.

Void for Vagueness Doctrine – Applied to IL Medicaid Fraud


 I was unlawfully convicted of criminal contempt for telling Dishonorable Judge Kathleen Pantle that she was aiding and abetting the criminal and impeachable conduct of IL Attorney General Lisa Madigan, as well as the fact that she was violating her oath of office by continuing with the criminal case against me although she had no jurisdiction.

 

In order to preserve the issue for appeal and because Dishon. J. Pantle refused to appoint a public defender after de facto removing me as Pro Se Counsel by making a written order that I was NOT ALLOWED to file any pleadings [an unconstitutional act that violates her oath of office], I firmly but politely stated I was leaving and not coming back (because she had no jurisdiction and the case was bogus) and turned around and tried to leave.

 

I was immediately arrested and immediately summarily convicted of criminal contempt and sentenced to 30 days in CCDOC. [More about all this later!] This memorandum was given to IL Supreme Court on my direct appeal of this criminal contempt conviction [a petty offense]. The IL Supreme Court denied leave to appeal – [ignored my appeal and made no ruling and refuse to consider it.] This criminal contempt case is presently before the U.S. District Court on a habeas corpus petition, as I have exhausted state remedies. If denied the Circuit Court of C[r]ook County may lift the stay on my sentence and I will have to serve the remaining 13/30 days of the sentence and surrender to the C[r]ook County Sheriff. This would be a gross injustice [see following two posts also]. 

 

As you all should know, under the IL Constitution a citizen has NO RIGHT to an appeal to the IL Supreme Court. Appeals there are by permission and they only take about 5/100 cases, usually if they find it interesting. Only Capital Cases have a right to appeal to IL Supreme Court. Therefore, the IL Appellate Court is ususally the end of the line except you can appeal by means of habeas corpus to Federal District Court AFTER you exhause all state remedies. [Appeal through IL Supreme Court AND file IL habeas corpus petition by means of motion for leave to file it to IL Supreme Court – which takes two to three years in IL – 6 mo to two years in other states].

 You might also want to note the discrimination against Pro Se Defense Counsel and the double standards. In similar cases regarding defense attorneys the judges usually sentence them to $500 fine. I don’t think 30 days for a pro se counsel = $500 for an attorney. This is grossly disproportionate.

No. 105037

______________________________________________________________________________________

 

In the

 SUPREME COURT

Of The State of Illinois

______________________________________________________________________________________

 

)  Petition to Appeal as a Matter of Right

) or in the Alternative Petition for Leave

) to Appeal

                                                                        ) 

LINDA SHELTON                                         )  On Appeal from Appellate Court, First

            Defendant-Appellant-Petitioner            )  District, No. 05-2053

) 

v.                                             )  There Heard on Appeal from Circuit

)   Court of Cook County, County

)   Department, Criminal Division

                                                                        )  

)   No. ACC 050087-01

            )  

STATE OF ILLINOIS                                    )   Honorable Judge Kathleen Pantle,

            Plaintiff-Appellee-Respondent               )           Trial Judge

                                                                        )   Order of Trial Court May 10, 2005

)   Order of Appellate Court

)                       June 19, 2007

 

MEMORANDUM OF LAW – VOID FOR VAGUENESS DOCTRINE

 

            Defendant, Pro Se, respectfully presents to this Honorable Court the following memorandum of law concerning statutes and case law regarding void for vagueness doctrine.

            It is impermissible to prosecute a person, per due process requirements, for a crime if it relies on a vague, ambiguous, or conflicting legal requirement. As the Seventh Circuit Court recently emphasized in Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000), criminal penalties require a “high degree of clarity.” Id. at 908. A year earlier, the Seventh Circuit Court also held:

            The vagueness doctrine holds that a person cannot be held liable for conduct he could not reasonably

            have been expected to know was a violation of law.  It is well-settled that, as a matter of due process, a

            criminal statute that fails to give a     person of ordinary intelligence fair notice that his contemplated

            conduct is  forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and

            convictions is void for vagueness. [United States v. Brierton, 165 F.3d 1133, 1138-39 (7th Cir. 1999)

            (as amended)]

 

            The Supreme Court has emphasized this same principle on numerous occasions. In United States v. Harriss, 347 U.S. 612 (1954), the Court held that:

            The constitutional requirements of definiteness is violated by a criminal statute that fails to give a person

            of ordinary intelligence fair notice that his contemplated       conduct is forbidden by the statute. The

            underlying principle is that no man shall      be held criminally responsible for conduct which he could not

            reasonable understand to be proscribed. [Id.at 617 (citations omitted)]

 

See also Dowling v. United States, 473 U.S. 207, 229 (1985) (reversing a conviction because “Congress has not spoken with the requisite clarity” and affirming the “‘time-honored interpretive guideline’ that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity’”) (quoting Liparota v. United States, 471 U.S. 419, 427 (1985) and United States v. Hudson, 7 Cranch 32 (1812), inner quotations omitted.)

            Even if the Illinois regulation per the Administrative Code is upheld to deny reimbursement for these counseling services to the poor, all defendants in any similar vendor fraud cases indictments and prosecutions cannot be sustained amid the uncertainty and vagueness created by the federal-state conflict. Indictment and prosecution of any defendant under a similar theory to this case of substitute billing run afoul of the Seventh Circuit Court’s holdings in Gresham and Brierton, and the Supreme Court precedents following Harriss.

            “It is well known that ‘no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.’” United States v. Ward, 2001 U.S. Dist. LEXIS 15897 (E.D. Pa Sept. 5, 2001). *12 (quoting Lanzetta v. New Jersey,  306 U.S. 451 (1939)). The Ward court then detailed the rigorous threshold test necessary for criminalizing conduct in the regulatory arena:

            Especially where a regulation subjects a private party to criminal sanctions, ‘a regulation cannot be

            construed to mean what an agency intended but did not adequately express.’ 

            Diamond Roofing Co.,Inc. v OSHRC, 528 F.2d 645, 649      (5th Cir 1976). As

             Bethlehem Steel made clear, ‘if the language the Secretary has the means and obligation to

             amend.’ [Ward, 2001 U.S. Dist. LEXIS    15897, *19 – *19 (quoting

            Bethlehem Steel v. Occupational Safety and Health Review Comm’n, 573 F.2d 157, 161

            (3rd Cir. 1978)).]

 

            The Ward Court cited a legion of precedents requiring dismissal of the indictment, which likewise require dismissal of the indictment in the vendor fraud case against Plaintiffs. “[I]t is our view that courts should not defer to an agency’s informal interpretation of an ambiguous statute or regulation in a criminal case.” Ward, 2001 U.S. Dist. LEXIS 15897, *22. See United States v. McGoff, 831 F.2d 1071, 1077 (D.C. Cir. 1987),

            In the criminal context, courts have traditionally required greater clarity in  draftsmanship than in civil     

           contexts, commensurate with the bedrock principle that in a free country citizens who are potentially

           subject to criminal sanctions should have clear notice of the behavior that may cause sanctions to be

           visited upon them.[;]

 

See also United States v. Apex Oil Co., Inc.,  132 F.3d 1287 (9th Cir. 1997) (affirming dismissal of indictment because the conduct was not clearly forbidden by the regulations); United States v. Plaza Health Laboratories, Inc., 3 F.3d 643, 649 (2nd Cir. 1993), cert. denied, 512 U.S. 1245 (1994) (in criminal cases, “a court will not be persuaded by cases urging broad interpretation of a regulation in the civil-penalty context”). See also, United States v. Whiteside, 2002 U.S. App. LEXIS 4610, *18 – *19 (11th Cir. Mar. 22, 2002) (“The government cannot meet its burden in this case because, despite its contention to the contrary, no Medicare regulation, administrative ruling, or judicial decision exists that clearly “proscribes defendants’ conduct.)

            The indictments in the vendor fraud case against defendant and all defendants in similar cases fail to cite violation of any binding federal rule. Accordingly, the indictments directly contravene Supreme Court teaching in Christensen v. Harris County, 529 U.S. 576 (2000), and over 150 decisions that have relied on it. Defendant and similarly situated defendants in other cases administered much-needed services to the poor under the federally funded Medicaid program, in full compliance with all applicable federal laws and formal regulations. It is contrary to Christensen and its progeny to sustain Defendant’s and similarly situated defendants’ indictments for conduct that did not violate any clear and binding rules.

            The Medicaid program has been recognized to constitute one of the most complex and intractable regulatory systems in our country. See Herweg v. Ray, 455 U.S. 265 (1982) Burger, J., dissenting) (observing that ‘the Medicaid program is a morass of bureaucratic complexity.”) Medicaid generally provides the lowest level of reimbursement, and requires treatment of the most ill and difficult patients. Physicians who participate in the low-paying Medicaid program should not be imprisoned based on a game of “gotcha”. See United States v. Harris, 942 F.2d at 1132 (“If the obligation . . . is sufficiently in doubt, willfulness is impossible as a matter of law, and the ‘defendant’s actual intent is irrelevant.’”) (citing Garber, 607 F.2d at 98, quoting United States v. Critzer, 498 F.2d 1160, 1162 (4th Cir. 1974)). Indictment and/or conviction of Medicaid physicians based on regulatory gamesmanship is both unjust to defendants and catastrophic to the needy patients, because it drives small practitioners out of Medicaid.  Courts are increasingly dismissing these types of fraud charges against physicians, and dismissal is appropriate in the vendor fraud case against Plaintiffs. See, e.g State v. Vainio, 2001 MT 220, 35 P.3d 948 (Mont. 2001) (reversing a Medicaid conviction because it was based on an improperly promulgated state regulation); Siddiqi v. United States, 98 F.3d 1427, 1429 (2nd Cir. 1996) (reversing Medicare fraud convictions for “claim[s] for services rendered by somebody else”); id. at 1438 (“It takes no great flash of genius to conclude that something is wrong somewhere.”)

            The vendor fraud case against Defendant and similarly situated defendants is void for vagueness, similar to the Siddiqu and the Vainio cases as explained in the precedent setting and controlling cases such as Harriss, Gresham, and Brierton. “Void for vagueness” means criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Chandler, 66 F. 3d 1460 (8th Cir. 1995) The vendor fraud case against Defendant and similarly situated defendants clearly falls under the void for vagueness doctrine and should have been dismissed ab initio.

 

Dated August 12, 2007.

                                                            Respectfully Submitted,

 

                                                                                _____________________________

                                                                                Linda L. Shelton

Plaintiff-Appellant-Petitioner Pro Se

 

 

Prepared By:

Linda Lorincz Shelton, Ph.D., M.D.

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