Pro Se Chicago's Weblog

January 19, 2010

Massive federal memorandum of law proving IL Attorney General Lisa Madigan & judges lack immunity – liable for malicious prosecution


The civil rights suit against Lisa Madigan, Jorge Alonso, Kathleen Pantle, John Fearon, Patrick Murray, William Reibel, Patrick Keenan, Nicholas Cozzolino, Julia Lovett, Charlene Wells can be read at this link.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 

LINDA SHELTON v. ILLINOIS ATTORNEY GENERAL LISA MADIGAN et al.

Case Number 06 C 4259

before Honorable Judge Joan H. Lefkow        

MEMORANDUM OF LAW – JURISDICTION

 

                Defendant, Pro Se, respectfully presents to this Honorable Court the following memorandum of law concerning statutes and case law regarding total and complete lack of prosecutorial and judicial jurisdiction of sham prosecutors and judges in this case.

Judges and prosecutors have absolute immunity unless they totally lack subject-matter or personal jurisdiction in the case. A judge acting without subject-matter jurisdiction is acting without judicial authority. Cohens v. Virginia,  19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821) The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution”, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." [Emphasis supplied in original].

State officials may be sued as individuals in § 1983 actions. Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000).

Plaintiff alleges that the prosecutors and judges sued in this case totally lacked subject matter jurisdiction and therefore pursued this prosecution and presided over this prosecution without any legal authority as individuals and trespassers of the Constitution of the United States. The sham prosecutors had no constitutional or statutory authority or jurisdiction to bring the Medicaid vendor fraud charge. The court had no subject matter jurisdiction because the indictment was legally insufficient and failed to state a charge, the charges were void as a violation of the Supremacy clause, the charges were void due to vagueness, and therefore there was a total and complete failure to charge a crime.

[The following are the subtitles in the document. See link for full document of 42 pages. A limited number of excerpts are included as follows:]

INDICTMENT LEGALLY INSUFFICIENT

SUBJECT MATTER JURISDICTION OF THE COURT

            A Judge may not claim jurisdiction by fiat. All orders or judgments issued by a judge in a court of limited jurisdiction must contain the findings of the court showing that the court has subject-matter jurisdiction, not allegations that the court has jurisdiction. “. . . in a special statutory proceeding an order must contain the jurisdictional findings prescribed by statute.” In re Jennings, 68 Ill.2d 125, 368 N.E.2d 864 (1977) A judge’s allegation that he has subject-matter jurisdiction is only an allegation. Lombard v. Elmore,  134 Ill.App.3d 898, 480 N.E.2d 1329 (1st Dist. 1985), Hill v. Daily, 28 Ill.App.3d 202, 204, 328 N.E.2d 142 (1975). Inspection of the record of the case is the controlling factor. If the record of the case does not support subject-matter jurisdiction, then the judge has acted without subject-matter jurisdiction.  “If it could not legally hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, – it had no authority to make that finding.” The People v. Brewer, 328 Ill. 472, 483 (1928) Without the specific finding of jurisdiction by the court in an order or judgment, the order or judgment does not comply with the law and is void. The finding can not be merely an unsupported allegation.

The law is well-settled that a void order or judgment is void even before reversal. “Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.” Vallely v. Northern Fire & Marine Ins. Co.,  254 U.S. 348, 41 S.Ct. 116 (1920)

           A court has no jurisdiction where the public policy of the State of Illinois is violated [a crime must be alleged and state ALL the elements of the offense for the complaint to be valid], People v. Meyers, 158 Ill.2d 46, 51 (1994);  Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

            Courts may not attempt to resolve controversies which are not properly presented to them for, if they should do so, it would violate not only the precepts of Constitutional due process, but would fly in the face of the American tradition of adversary litigation. In Re Custody of Ayala, 344 Ill.3d 574, 800 N.E.2d 524, 534-35 (1st Dis. 2003); Ligon v. Williams, 264 Ill.App.3d 701, 637 N.E.2d 633, 639 (1st Dis. 1994); In re Estate of Rice, 77 Ill.App.3d 641, 656-57, 396 N.E.2d 298, 310 (1979)

            The Constitutional source of a circuit court’s jurisdiction does not carry with it a license to act in ways inconsistent with controlling statutory law. In re D.W. (People v. Lisa M.), 214 Ill.2d 289, 827 N.E.2d 466, 480 (Ill. 2005); In re Lawrence M., 172 Ill. 2d 523, 529, 670 N.E.2d 710, (Ill. 1996), citing In re M.M., 156 Ill. 2d 53, 75, 619 N.E.2d 702, (Ill. 1993) (Miller, C.J., concurring, joined by Bilandic, J.)

            A void judgment, order, or decree is one in which the rendering court lacked subject-matter jurisdiction, lacked personnel jurisdiction, lacked the inherent power or authority to make or enter or enforce the particular order involved. In re D.W. (People v. Lisa M.), 214 Ill.2d 289, 827 N.E.2d 466, 480 (Ill. 2005); People v. Thompson, 209 Ill.2d 19, 23, 805 N.E.2d 1200, 1203 (Ill. 2004); Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 103, 776 N.E.2d 195, (Ill. 2002), quoting Barnard v. Michael, 392 Ill. 130, 135, 63 N.E.2d 858 (1945).  A judge should not proceed in any action in which the judge does not have subject-matter jurisdiction, since she has no lawful authority to act. Any acts made without jurisdiction are void.

FRAUD UPON THE COURT BY PROSECUTOR OR COMPLAINANT

INVALIDATES ALL ORDERS OF COURT

            Fraud upon the court in obtaining a complaint, information, or indictment invalidates all orders of the court and causes the case to be null and void ab initio.  “Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”

 It is also clear and well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); Moore v. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) (“The maxim that fraud vitiates every transaction into which it enters …”); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).
        Under Illinois and Federal law, when any officer of the court has committed “fraud upon the court”, the orders and judgment resulting from such fraud on that court are void, of no legal force or effect.

In this case the fraud consisted of the Illinois Attorney General fraudulently claiming to have the authority to prosecute vendor fraud without the at least minimal participation and knowledge of the States Attorney of Cook County, the State fraudulently presenting the law to the court and ignoring the Supremacy clause as well as the State Codes and Rules, the State fraudulently claiming Defendant had committed a crime, the State fraudulently claiming that the indictment was legally sufficient, the State fraudulently claiming that the statute of limitations had not run out, the State fraudulently agreeing with the court that Federal Medicaid Code was not applicable in this case of Medicaid vendor fraud,

JUDICIAL TRESPASSERS OF THE LAW

The Illinois Supreme Court has held that "if the magistrate has not such jurisdiction, then he and those who advise and act with him, or execute his process, are trespassers." Von Kettler et.al. v. Johnson, 57 Ill. 109 (1870)

Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)

The Illinois Supreme Court held that if a court "could not hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, - it had no authority to make that finding." The People v. Brewer, 128 Ill. 472, 483 (1928). The judges listed below had no legal authority (jurisdiction) to hear or rule on certain matters before them. They acted without any jurisdiction.

When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law,and are engaged in treason (see below).

The Court in Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that "not every action by a judge is in exercise of his judicial function. ... it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse."

When a judge acts as a trespasser of the law, when a judge does not follow the law, the judge loses subject-matter jurisdiction and the judge’s orders are void, of no legal force or effect.

By law, a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his person).

VIOLATION OF JUDGE’S OATH OF OFFICE

In Illinois, 705 ILCS 205/4 states "Every person admitted to practice as an attorney and counselor at law shall, before his name is entered upon the roll to be kept as hereinafter provided, take and subscribe an oath, substantially in the following form:

'I do solemnly swear (or affirm, as the case may be), that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of attorney and counselor at law to the best of my ability.'"

In Illinois, a judge must take a second oath of office. Under 705 ILCS 35/2 states, in part, that "The several judges of the circuit courts of this State, before entering upon the duties of their office, shall take and subscribe the following oath or affirmation, which shall be filed in the office of the Secretary of State:

'I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the constitution of the State of Illinois, and that I will faithfully discharge the duties of judge of ______ court, according to the best of my ability.'"

Further, if the judge had enlisted in the U.S. military, then he has taken a third oath. Under Title 10 U.S.C. Section 502 the judge had subscribed to a lifetime oath, in pertinent part, as follows: "I, __________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; ...".

The U.S. Supreme Court has stated that "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.". Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).

Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the Supreme Law of the Land. The judge is engaged in acts of treason.

Having taken at least two, if not three, oaths of office to support the Constitution of the United States, and the Constitution of the State of Illinois, any judge who has acted in violation of the Constitution is engaged in an act or acts of treason (see below).

If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason.

TREASON BY A JUDGE

Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)

        The Supreme Court has also held that if a judge wars against the Constitution, or if he acts without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce.
        Courts have repeatedly ruled that judges have no immunity for their criminal acts. Since both treason and the interference with interstate commerce are criminal acts, no judge has immunity to engage in such acts.

ATTORNEY GENERAL WITHOUT ANY JURISDICTION TO

INDEPENDENTLY PROSECUTE VENDOR FRAUD

            Statutes and case law regarding constitutional and statutory authority of Illinois Attorney General do not allow the Illinois Attorney General to prosecute Medicaid Vendor Fraud without the invitation, consent, or participation of the Cook County State’s Attorney.

            The Illinois Constitution, Article V, Section 15 states: “The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law.”

     15 ILCS 205/4 (from Ch. 14, par. 4) states:

 
“The duties of the Attorney General shall be:

Fourth – To consult with and advise the several State’s Attorneys in matters relating to the duties of their office; and when, in his judgment, the interest of the people of the State requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution…

Fifth – To investigate alleged violations of the statutes which the Attorney General has a duty to enforce and to conduct other investigations in connection with assisting in the prosecution of a criminal offense at the request of a State’s Attorney…”

            People v. Massarella, 53 Ill. App. 3d 774 (1977)” states:

“Although a court may request that the Attorney General act in place of the State’s Attorney if he is sick, absent, uninterested, or unable to attend, Ill. Rev. Stat. Ch. 14, para. 6 (1973), in the absence of such circumstances, even the court may not substitute one official for the other. Moreover, since the State’s Attorney has the duty to take charge and prosecute all criminal offenses in his county, the attorney general has no power to interfere while that duty is being honestly, intelligently, and carefully discharged.

            Nowhere in the Illinois Statutes does it state that an Attorney General may initiate

and pursue a prosecution, independent of the State’s attorney, in a category of crimes not specifically assigned to the Attorney General by Statute, but which falls under the duties of the State’s attorney according to the following Statute:

55 ILCS 5/3-9005(a) states:

“The duty of each State’s attorney shall be: (1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county…”

            The Illinois Supreme Court in People v. Massarella, 72 Ill.2d 531, 382 N.E.2d 262 (1978), held that the Illinois Attorney General has authority to prosecute any crime with acquiescence of and absent of objection by State’s Attorney. The key is that the state’s attorney had knowledge of the case and actively acquiesced or failed to make an objection. It also held that the Illinois Attorney General has authority to appear before the grand jury without prior approval of the State’s Attorney.

            In People v. Buffalo Confectionery Co., 78 Ill.2d 447, 36 Ill.Dec. 705, 401 N.E.2d

546 (1980) the Illinois Supreme Court, under common law, found that “duties of the Attorney General…include the initiation and prosecution of litigation on behalf of the people.” They state that this power “may be exercised concurrently with the power of the State’s Attorney to initiate and prosecute all actions, suits, indictments, and prosecutions in his county as conferred by statute.”

However, they also ruled that the State’s Attorney is the only official whom by statute can initiate and prosecute criminal charges in that county (Ill.Rev.Stat. 1973, ch. 14, § 5) and that the Illinois Constitution gives the Attorney General only the “duties and powers that may be prescribed by law.” They also ruled that the statutes prescribe the Attorney General’s duties to include to “attend…and assist in the prosecution.” (Ill.Rev.Stat.1973, ch. 14 § 4). Therefore, the Illinois Supreme Court concluded that:

As we have previously stated, the aforementioned duties and powers of the two officers are concurrent. Thus, the Attorney General lacks the power to take exclusive charge of the prosecution of those cases over which the State’s Attorney shares authority. (People v. Flynn (1941), 375 Ill. 366, 368, 31 N.E.2d 591.) However, where the statute so provides, the Attorney General has exclusive authority to institute and prosecute. See, e.g., Ill.Rev.Stat. 1977, ch. 120 par. 453.16 (Cigarette Tax Act prosecution); Ill.Rev.Stat. 1977, ch 38, par. 60-6 (Illinois Antitrust Act prosecution). [They explained that since Illinois Revenue Laws do NOT give the Illinois Attorney General exclusive authority to prosecute violation of revenue laws, the Illinois Attorney General may NOT prosecute these violations without the acquiescence of the State’s Attorney – in the revenue violation case in Buffalo Confectionery Co., the State’s Attorney was deemed to have acquiesced because he had been named to the grand jury, he had signed the indictments, he had attended the arraignments and he had filed certain pretrial discovery motions.)

They also found that an indictment is not invalidated because the Illinois Attorney General appears before the grand jury without approval of the State’s Attorney.

            The court then stated that there was no statute prescribing the duties of the Attorney General to include prosecuting revenue claims to the exclusion of the State’s Attorney. (People v. Buffalo Confectionery, Co., Ibid at page 549 [4].) Analogously, in the above captioned case, there is no state statute that grants the Attorney General exclusive authority to prosecute cases of CRIMINAL vendor fraud. The statutes do however, proscribe the duties of the Attorney General to include exclusive prosecution of CIVIL vendor fraud. (305 ILCS 5/8A-7I.)

            In Buffalo Confectionery, Co. (Ibid at page 548) the court noted that in that case the Assistant Attorney General (AAG) told the grand jury that he had obtained permission of a named Assistant State’s Attorney (ASA) to prosecute the case. The named ASA was present at the arraignment and filed a motion for pretrial discovery. The signature of the Cook County State’s Attorney appeared on the indictment. In the case at bar the AAG told the grand jury he had permission of the State’s Attorney, but does not name any such person. The ASA has not appeared at any hearing or before the grand jury in this case and has filed no motions. A signature stamp for SA Richard Divine on the indictment is the only documentation of involvement of the state’s attorney. This signature stamp does not verify that ANY person from the State’s Attorney’s office ever was consulted about this case, was shown evidence  about this case, decided what charges should be filed, and consented to the prosecution of this case by the Attorney General with exclusion of ANY involvement of the State’s Attorney in this case.

            In Buffalo Confectionery, Co. (Ibid at page 548 and 550) the court noted that there was an “obvious acquiescence by the State’s Attorney”, who was present at the arraignment and made a motion for pretrial discovery. In that case, it was clear that the State’s Attorney had considered the case and had decided to allow the AAG to proceed with prosecution without the ASA.

            In, Shelton v. Brown, 126 S.Ct. 51, 163 L.Ed.2d 472, certiorari denied by the United States Supreme Court and the Illinois Supreme Court, the Illinois Appellate Court agreed with Cook County State’s Attorney Dick Devine stated in his Illinois Appellate Court response brief page 12,

“It is clear that in Illinois, even the Attorney General, a constitutionally created prosecuting office, cannot invade the exclusive jurisdiction of the State’s Attorney to bring charges absent some evidence of abuse by the state’s attorney, or a conflict of interest.

            This issue in this case was whether or not citizens can file criminal complaints with the court clerk, without the approval or signature of police or the state’s attorney. The clerk had refused to accept criminal complaints by Shelton against corrupt State and County officials, including the State’s Attorney and police. The Appellate Court ruled that this refusal was proper and that citizens had no standing to file such complaints. The reasoning agreed with Cook County State’s Attorney Richard Divine who opined that the Attorney General has no statutory authority to indict and prosecute a person absent consent and participation of the State’s Attorney. This is binding precedent, so much so that any criminal prosecution of vendor fraud by the AG is null and void if the AG did not have the invitation, consent, and participation or acquiescence of the SA.

            This position was later re-iterated in People v Dosaky,  303 Ill.App.3d 986, 709 N.E.2d 635 Ill.App. 1 Dist., 1999, where the court ruled:

Attorney General lacks the power to take exclusive charge of the prosecution of those cases over which the State’s Attorney shares authority, but is authorized to consult with and advise the several State’s Attorneys and attend the trial of any party accused of a crime and assist in the prosecution.

            Illinois statutes and case law are explicit in that an Attorney General, in Illinois, can only initiate and prosecute a criminal offense if they are invited to do so by the states attorney and the states attorney participates at hearings and at trial, if the State’s Attorney has reviewed the facts of the case, taken some initial steps towards prosecution and acquiesces to the Illinois Attorney General prosecuting without the State’s Attorney’s participation, or if statutory authority is granted, as it is in CIVIL prosecution of vendor fraud (after approval by OIG-DHHS), in certain environmental crimes or in certain cases involving drug crimes  and other statutorily specified crimes.

            Medicaid vendor fraud is not such a special statutory category subject to independent and exclusive prosecution by the Attorney General and cannot be criminally prosecuted by the Illinois Attorney General without the written approval of the OIG-DHHS and the request, and at least initial participation of the States Attorney, after the State’s Attorney has evaluated the evidence and determined which offense with which offender should be charged.

            More recently, in People v. Knippenberg, 325 Ill.App.3d 251, 757 N.E.2d 667 Ill. App. 3 Dist., 2001, the Illinois Appellate Court ruled that the “Attorney General has exclusive authority to initiate and prosecute cases only when a statute so provides.”

            The court in People v. Mitchell, 1971, 131 Ill.App.2d 347, 268 N.E.2d 232 states:

It is the responsibility of State’s attorney of county to appraise evidence against accused and determine offense with which he should be charged.

The court in People v Rhodes, 1967, 38 Ill.2d 389, 231 N.E.2d 400 states:

 

State’s attorney as a representative of the people has responsibility of evaluating evidence and other pertinent factors and determining what offense can properly and should properly be charged.

Therefore, without a specific statute giving the Illinois Attorney General authority to exclusively prosecute criminal Medicaid vendor fraud, the Illinois Attorney General may not prosecute anyone including Defendant in case at bar if there has been no review of evidence by the State’s Attorney, no determination of the charges by the State’s Attorney, no initial participation by the State’s Attorney, and no acquiescence by the State’s Attorney.

            Without the authority of the Attorney General to prosecute the charges, the charges were not properly before the court and the case was void ab initio.

PROSECUTORS ACTING OUTSIDE THE SCOPE OF THEIR PROSECUTORIAL DUTIES DO NOT ENJOY ABSOLUTE IMMUNITY

            The Eight Circuit Court of Appeals in McGhee v. Pottawattamie Co., 547 F.3d 922 (2008) ruled that malicious and willful acts to fabricate  probable cause are substantive due process violations and subject the prosecutor who fabricated probable cause to liability under § 1983. This is because the United States Supreme Court in Burns v. Reed, 500 U.S. 478 (1991) took a functional approach as to the role of a prosecutor. If his acts were not intimately tied to the prosecution of the case, but were tied to the investigation, the prosecutor was not immune. This is consistent with Imbler v. Pachtman, 424 U.S. 409, 428, 430 (1971) where the court held that prosecutors are absolutely immune for acts intimately tied to the prosecution.

            In this case prosecutorial absolute immunity does not attach to a prosecutor who never had statutory or constitutional authority to prosecute the alleged crime; does not attach to an Illinois Police investigator prior to the charging of the crime; does not attach to Illinois Medicaid Office of Inspector General nurses serving as investigators; does not attach to Defendant AAG Murray who served as an investigator gathering evidence and later joined the prosecution team; and does not attach to an Attorney General or her staff who willingly and intentionally ignore Illinois Code and Rules as well as Federal Medicaid Code in order to bring false charges to whistle blowers, who are witnesses to their corruption, as is Defendant and the persons the Illinois Attorney General have prosecuted for Medicaid Vendor fraud using virtually identical fraudulent indictments, using the same investigator and witnesses (Inv. Reibel and Lovett), and fraudulently presenting the same false information about the law to the multiple grand juries. These persons have included Dr. Maisha Hamilton Bennett, Vernon Glass, M.S., and Naomi Jennings R.N., as well as Plaintiff.

            Therefore, the Illinois Attorney General, her staff, and her investigators are not immune from liability.

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 is faulty, 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. Therefore, the trial court never had subject matter jurisdiction.

SUBSTITUTE BILLING NOT A CRIME

Alleged vendor fraud crime outside of statutory authority and

barred by Supremacy Clause

            This is not a matter of an unconstitutional statute. There is no statute or administrative rule in Illinois barring this allegedly criminal act of substitute billing in the case at bar as fraudulently charged. This act is specifically authorized by the federal Medicaid Code, Federal Code of Regulations, State Statutes, and State Administrative Code. Therefore, this case is a matter of enforcing federal code, which is being violated by this fraudulent prosecution, and not a matter of constitutionality of a state statute.

FEDERAL LAW REQUIRES FUNDING OF NON-PHYSICIAN EMPLOYEES OF

PHYSICIANS SERVICES TO THE POOR

 SUMMARY

            In summary, a prosecutor who acts without State or Constitutional authority as a prosecutor, who then generates legally insufficient indictments, using illegally impaneled grand juries, to charge a person with a crime despite the Supremacy clause providing that the act is NOT a crime under federal law, and the fact that the charge is void due to vagueness has failed to state a claim and is not properly before the trial court. The sham prosecutor, her assistants, and their investigators are acting as individuals without legal authority and are all personally liable under § 1983 and state tort law.

            All judge who act on such an indictment, despite the fact it was not properly before the court, especially when they ignore extensive motions by the defendant about these issues, are committing acts of treason and are grossly violating their oaths of office as well as the United States and Illinois Constitutions.

            Therefore, none of the Defendants in this case are immune from liability as prosecutors or judges.

Respectfully submitted by:

__________________________                               

Linda L. Shelton, Pro Se                                           


[1] People v. Foxall, 283 Ill. App. 3d 724 (1996): The defendant was charged by information with disorderly conduct based on transmitting a false report of sexual misconduct to the Department of Children and Family Services. Foxall, 283 Ill. App. 3d at 727. The reviewing court held that the information was insufficient because it did not specify the contents of the false report, and basic fairness required the State to identify the allegedly false statements. Foxall, 283 Ill. App. 3d at 727.

Davis: The reviewing court found that the indictment was insufficient when the defendant was charged with official misconduct based on “disseminat[ing] information,” but the indictment did not identify the contents of the alleged communication. Davis, 281 Ill. App. 3d at 990.

People v. Stoudt, 198 Ill. App. 3d 124 (1990): The reviewing court held that a complaint that charged defendant with resisting a police officer was insufficient when the complaint stated that the officer was engaged in the execution of his official duties but did not identify the authorized act the officer was performing. Stoudt, 198 Ill. App. 3d at 128.

People v. Leach, 279 N.E.2d 450 (Ill.App.1st, 1972): The defendant in Leach was charged with resisting or obstructing a police officer. The charging instrument was insufficient because it only stated that the defendant committed the above offense by knowingly obstructing a police officer. Id. at 453-454

United States v. Bobo, 344 F.3d 1076 (11th Cir, 2003): The indictment was insufficient because it failed to specify the nature of the scheme used by the defendant to defraud the State of Alabama and the United States.

United States v. Nance, 533 F.2d 699 (D.C. Cir., 1976): The indictment was insufficient because it failed to apprise the defendant of the nature of the false pretenses by which the defendant gained unauthorized control over money.

People v. Gerdes, 527 N.E.2d 1310 (Ill.App.5th, 1988): The defendant in Gerdes was charged with obstructing justice by giving false information to the police. The charging instrument did not specify the nature of the allegedly false information. The defendant was therefore left to wonder which of many statements to the police the basis for the charge against him was, so the appellate court dismissed the indictment. Id. 

October 31, 2008

Legally Insufficient Indictment-Failure to State Specific Means by Which Alleged Crime Accomplished – Illinois / Felonious Conduct of Judge Pantle and Judge Alonso in Obstructing Justice by Denying Defense Access to Evidence


The first thing I do if I am indicted or charged is look at the charging instrument – complaint, information, or indictment. I ask does it include all the elements of the alleged crime? If not, it is legally insufficient and voids the charge and case. There are other reasons it may be insufficient and I will discuss that in later posts. The motion in this post goes over the relevant controlling case law. Please enjoy it! I hope you find it useful. This is my motion in one case where the indictment is constitutionally legally insufficient basically because it fails to state the SPECIFIC MEANS of the alleged crime – in this case the specific allegedly fraudulent invoices, naming the specific dates of service, name of patient, service billed for, provider of the service, provider who is billing, and WHAT SPECIFICALLY is fraudulent about the invoice. It also states there is a “single intention or design” (i.e. scheme) but gives NO CLUE as to what the scheme involves or who are the alleged perpetrators other than me. The US Supreme Court as well as higher courts in Illinois have ruled in similar cases that this is a void indictment and therefore the entire case is void, not just voidable.
This is a case where in 2004 I was charged with felony Medicaid fraud by the Illinois Attorney General with a fraudulent grand jury indictment by an illegally impaneled special grand jury. The trial is still pending. If you want to attend, please e-mail me and I will inform you of the date when scheduled. Contributions to my legal defense fund may also be given to my attorney – made out to: “Shelton Legal Defense Fund” C/O J. Nicolas Albukerk, 3025 W 26th St., Chicago, IL 60623. The IL AG has absolutely no legal authority to indict anyone (with the exception of about six crimes specified by statute giving AG authority) without the invitation, review, and at least minimal participation of the State’s Attorney. This never happened in mycase. The law was mistated to the grand jury, only perjured testimony was given to grand jury, extensive exculpatory evidence was withheld from grand jury. No crime is actually alleged in indictment as act is specifically authorized by the Federal Medicaid Act if one guesses that the alleged crime is billing Medicaid for services of employees who are statutorily qualified to provide services – i.e. psychologists and counselors. I will post all the other motions to dismiss that the court has illegally refused to hear later.
UPDATE: I tried to file this pro se. It is still my position that I am being illegally denied the right to self-representation – more on this later. My attorney is considering adopting this motion and filing it under his name. In the meantime, Judge Alonso refused to hear it because it did not come from my attorney, who is now representing me over my objection. I did this not because he is a bad attorney, he is very good, but I believe at this point I need to represent myself – more on this later. The judge allowed this motion to be filed as an offer of proof only.

 

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

 

PEOPLE OF THE STATE OF ILLINOIS       )

                        Plaintiff,                                    )          

                        v.                                             )           No. 04 CR 17571

                                                                        )

LINDA SHELTON                                         )           Jorge Alonso

            Defendant                                 )           Judge Presiding

 

 

MOTION TO DISMISS FOR INSUFFICIENT INDICTMENT OR IN THE ALTERNATIVE AN OFFER OF PROOF

 

NOW COMES Defendant, Linda Shelton, Pro Se, who respectfully moves this court to dismiss case due to insufficiency of indictment, or in the alternative offer this motion as an offer of proof that the indictment is insufficient and therefore the case is void ab initio. In support of this motion Defendant states as follows:

1.      In Illinois, an indictment must be reasonably certain enough to apprise a defendant of the charges against him, enable him to prepare a defense, and permit a conviction or acquittal to serve as a bar to any subsequent prosecution for the same offense. People v. Greico, 255 N.E.2d 897, 898-899 (Ill. 1970)

2.      A defendant has a fundamental right to be informed of the “nature and cause” of the charges against him or her. People v. Meyers, 158 Ill. 2d 46, 51 (1994).

3.      In Illinois this fundamental right is given substance by statute and incorporated into section 111-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/111–3 (West 1998)). 725 ILCS 5/111‑3 states: “111‑3. Form of charge. (a) A charge shall be in writing and allege the commission of an offense by: . . . . (3) Setting forth the nature and elements of the offense charged;” [emphasis added] See Meyers, 158 Ill. 2d at 51; People v. Davis, 281 Ill. App. 3d 984, 987 (1996). When the sufficiency of a charging instrument is challenged in a pretrial motion, the inquiry upon review is whether the instrument strictly complies with section 111–3. Davis, 281 Ill. App. 3d at 987.

4.      When the language of a statute which constitutes a charge against the defendant defines the acts prohibited, no further particularity is necessary. People v. Kamsler, 214 N.E.2d 562, 566 (Ill. 1966)

5.      An indictment is not flawed because the overt act could be described in greater detail. City of Chicago v. Powell, 735 N.E.2d 119, 125 (Ill.App.1st Dist, 2000) CITING People v. Meyers, 630 N.E.2d 811 (Ill. 1994). Rather an indictment is sufficient so long that it would enable a defendant to prepare a defense. Id.

6.      Ordinarily, the requirements of section 111-3 are met when the counts of a complaint follow the statutory language in setting out the nature and elements of an offense. Davis, 281 Ill. App. 3d at 987. The relevant inquiry is not whether a charging instrument could have described an offense with more particularity, but whether there is sufficient particularity to allow the defendant to prepare a defense. Meyers, 158 Ill. 2d at 54. A charging instrument is a preliminary pleading, and it need not contain more than a cursory statement of the facts. People v. Smith, 259 Ill. App. 3d at 497. However, it must state some facts.

7.      If the charging instrument meets the minimum requirements of section 111–3(a) but (combined with any discovery the State furnishes) is insufficient to allow the defendant to prepare a defense, he or she can–and should–seek a bill of particulars. Smith, 259 Ill. App. 3d at 498; People v. Intercoastal Realty, Inc., 148 Ill. App. 3d 964, 971 (1986).

8.      An indictment need not state the exact means used in committing a charged offense if that means is not an integral part of the offense. Grieco, 255 N.E.2d 899; SEE People v. Brogan, 816 N.E.2d 643, 654 (Ill.App.1st, 2004) (defendant’s argument that the indictment failed to apprise him of the details of how the overt act was carried out failed because the argument focused on the nature of the proof rather than the nature of the offense.) However, if the means is an integral part of the offense, the indictment needs to state these means.

9.      When the language of a statute does not articulate a specific offense, the indictment must articulate a specific overt act. People v. Potter, 125 N.E.2d 510 (Ill. 1995) In Potter, the defendant was charged with reckless driving. The indictment specifically stated that the defendant drove recklessly by speeding. The defendant was therefore not left to question whether the reckless conduct was running a red light, driving at night without his lights on, or one of a myriad of other possibly dangerous driving manners. However, there are numerous cases where the reviewing courts ruled that the indictment did not articulate a specific overt act[1], and therefore, these indictments were fatally defective.

10.  In the case at bar, the indictment states defendant is alleged to have “in furtherance of a single intention and design, … by means of false statements and representations, . . . caused false billing invoices to be submitted to the Illinois Department of Public Aid.”

11.  The indictment does NOT SPECIFY any details of this “single intention and design” so the Defendant cannot prepare a defense because she must guess at what kind of scheme and with whom she schemed in order to commit the alleged crime. As she is innocent, she has no knowledge of any scheme to which to prepare a defense.

12.  The indictment does NOT SPECIFY what false statements or what false representations she is accused of having made. She cannot prepare a defense and is forced to guess that the false statements have something to do with the large amount of different types of information on an invoice (Exhibit A), such as patient name, patient Medicaid number, date of service, type of service, diagnosis, or provider name.

13.  Defendant must also guess at which step is fraudulent in a complicated series of steps necessary to submit an invoice, from agreeing to work for the business, to signing the contract with the billing agent, to giving a patient encounter form to the business assistant when a patient is seen in clinic, to the billing agent setting up the business for electronic submission and registering the business and provider for billing, to signing a power of attorney form, electronic partner trading agreement, and alternate payee form, in order to generate an electronic invoice from the patient encounter form, to submitting the invoice over the wire, and to documenting hours worked on chart review and teaching therapist or setting medical policies.

14.  She further has to guess which dates of service for which of thousands of patient’s names in remittance advices given to her in discovery by the state, for the large time period of the indictment, June 2000 through April 2002, are involved so she can examine each of these invoices and guess at what is allegedly fraudulent about them.

15.  The above involves pulling out each of the thousands of charts in storage, examining each date of service record and comparing them with the invoices, after obtaining access to medical charts not under her control or possession until June 2008. It also involves examining all business and bank records related to billing and payroll, after obtaining access to them, as they were not under her control or possession until June 2008.

16.  As Defendant was not owner of the practice and did not have access to these documents after she left the practice in 2003, until June 2008, when she received Power of Attorney over all documents of the practice, at the request of XXXX, the owner, who is now medically incapacitated and dying of XXXXXX, Defendant is supposed to figure all this out and develop a defense using this material in only a couple of months. This is a Herculean task that no one could possibly be expected to accomplish. The Court for four (4) years has negligently and/or willfully interfered with and prevented Defendant from obtaining banking and billing records or compulsory process and prevented Defendant from legitimately seeking details of alleged offense.

17.  The State does not specify if Defendant is alleged to have ghost-billed by listing patients and Medicaid numbers of persons who never came to the practice, upcoded by listing a code for a higher degree of service than provided, substitute-billed for a provider who was not eligible to bill, schemed with the business owner, the biller, the office assistants, or whomever, for any of this. In addition, no specific acts (specific patients, specific dates of services, or specific services) are described in indictment, and no specific dates of service or specific services billed for are described in Bill of Particulars.

18.  No reasonable person can be expected to prepare a defense under the above circumstances, where the State, in the indictment has utterly failed, as required by law, to specify the overt acts which constitute the alleged criminal acts.

19.  The State, in discovery, has provided a list of approximately 54 patients which are family groups with approximately 30 adults. They claim that this discovery material represents the State informing the Defendant of the means of the illegal acts she is alleged to have committed. This, along with a Bill of Particulars, however does not cure the fatally defective and insufficient indictment. The 30 or so adults were provided in a witness list. If each psychiatric patient is seen an average of 20 visits, then these 54 patients represent about 1080 visits. Defendant, without the indictment specifying which patients and which visits are allegedly fraudulent and how they are fraudulent is left to guess about this information for each of these 1080 office visits. The State’s bill of particulars and answer to discovery states that Medicaid received bills for services for these 54 patients and lists inclusive dates of service and total amounts billed for, but does not state specific dates of service and patients for which they claim that services were billed fraudulently or what was fraudulent about the bill, except that the bills were for services “not provided by the physician,”  which could mean several different types of overt acts or omissions.

20.  Defendant is now in a situation, ordered by this Court, and produced by the State, analogous to someone being indicted and charged with murder, but not being told who she murdered, where and on what continent the murder took place, what was the nature of the alleged weapon, or even what year the murder took place. This is the ultimate injustice and sham proceeding, that should have been dismissed several years ago. This is a continuing four (4) year act of judicial and prosecutorial misconduct. There is no specific Who, What, Where, or When! These proceedings are therefore, a travesty of justice and beyond any semblance of legitimate American jurisprudence. This case brings this Court, this State, and its legal system into disrepute based on the unconstitutional, illegal, and unethical actions of this Court and this State against Defendant that run counter to every due process principle guaranteed by the United States Constitution.

21.  The State has also provided in discovery thousands of the practice’s “remittance advices” that cover an approximately two year period. Remittance advices are documents generated by Illinois Medicaid sent to the medical provider which list the names of patients billed for, the recipient’s Medicaid number, the date of the service, the code for the service claimed, the invoiced amount, and the amount paid to the provider or alternate payee by Medicaid. Defendant must guess at which of these dates of services and patients may be added to the witness list and what is fraudulent about each and every one of the invoices submitted that Medicaid used to generate the remittance advices. Defendant would have to examine each invoice, if available, examine each chart for each date of service, and determine if there was a scrivener’s error, or a somehow fraudulent invoice and determine what was fraudulent about the invoice, and who was responsible for this act. Only in July 28, 2008, four (4) years after the indictment has this Court began to enforce discovery rules and order the State to clearly identify all witnesses to be used against Defendant, although the Court still has not ordered the State to identify the acts (dates of service and details of invoice that they allege are fraudulent) that constitute the alleged crime.

22.  It appears that the State is forcing the Defendant to perform their investigation and figure out what, if anything, she should be charged with concerning these thousands of patient encounters, not just by her, but by every physician and provider in the practice during the broad indictment period, four years after the indictment was handed down.

23.  Of note, a bill of particulars does not cure a faulty indictment. People v. Meyers, 158 Ill. 2d 46, 53 (1994). The indictment must stand on its own in stating facts sufficient to support all elements of the offense. The indictment, even with discovery materials, fails to inform Defendant of the alleged means of the crime or the alleged specific acts constituting this crime, four (4) years after indictment.

24.  The indictment in this case is fatally insufficient in failing to specify the acts that allegedly constitute the crime charged. Therefore, no  crime has been legally charged and the case is null and void ab initio.

25.  Under 725 ILCS 5/114-4(e), if the State, due to lack of due diligence, fails to bring Defendant to trial within one (1) year, following the indictment, after one additional hearing scheduled 14 –30 days after this motion is filed, then the case must be dismissed with prejudice for lack of due diligence.

26.  Defendant has previously moved for dismissal, 17 months after the indictment, due to lack of due diligence and this has been unconstitutionally denied. Defendant renews her request for dismissal for lack of due diligence. After four years or 48 months post-indictment, the State clearly should have provided the Defendant discovery, including all allegedly fraudulent invoices and a bill of particulars to address the above, even if this court erroneously rules that the indictment is valid.

27.  The court has placed Defendant’s subpoenas on hold for several years and denied Defendant counsel for nine (9) months in 2005-2006. The law only requires the billing agent and practice to keep invoices for three (3) years. The billing agent now claims the invoices no longer exist. The State failed to produce any invoices for the indictment period despite repeated specific orders of Judge Pantle several years ago. It claims to have microfiche of some invoices, but these cannot include most of invoices produced by Ms. Moore, as the State only make microfiche of paper claims. State has not admitted to having or denied having in their possession copies of electronic invoices from indictment period, but has failed to produce them (the actual alleged means of the alleged crime) despite orders of the Court in 2006 to do so. Ms. Moore, by law was allowed to destroy all invoices and computer records of them before 2006.

28.  In addition, banks are only required to keep records for five (5) years. Due to physical incapacity and lack of funds, Mr. XXXX, the sole proprietor of RFOM during the indictment period, has not been able to preserve all his business and bank records. Citizen’s Bank has now informed Defense attorney Albukerk that the practice’s bank records no longer exist as it is now beyond this five (5) year period. The State has failed to ask for, subpoena, or proffer the practice’s bank records in discovery while the case has been pending for four (4) years.

29.  Therefore, the Court and State have caused Defendant to be deprived of the “instruments of the alleged crime,” (the allegedly fraudulent electronic and then paper invoices) as well as exculpatory business and bank records, and therefore, materially and intentionally prevented Defendant from preparing a defense. This is not just lack of due diligence by the State. This is active interference with the defense, as well as violation of the judges’ oaths of office.

30.  The defense cannot have invoices inspected by an expert for forgery of Defendant’s signature by someone unknown person regarding paper claims, nor inspect the electronic partner trading agreement from the third-party adjudicator, Blue Cross Blue Shield of Illinois (”BC/BS”), which allows BC/BS to accept electronic claims from Medicaid providers, for forgery of Defendant’s signature.  

31.  These acts of withholding and failing to preserve evidence by the Court and the State, in themselves should cause this case to be immediately dismissed as a sanction against the State and the Court and because it now is more difficult, if not impossible to definitively prove that Defendant did not produce or cause to be produced most of the invoices in question, nor receive most of the money given the practice by Medicaid or have any part in deciding its distribution. This is the main element and the nature of the alleged crime, stated in general terms in indictment, without description of overt acts. With the physical incapacity of Co-Defendant and his written statement that he is invoking the Fifth Amendment and has refused to give a dying declaration, Defendant is put in the impossible position of proving a negative without the help of any evidence.

32.  Defendant was UNCONSTITUTIONALLY prohibited by the court from filing any pleadings pro se by a written order of Judge Pantle, dated July 6, 2005, that has not been rescinded, and DENIED at the same time an attorney from May 2005 to January 2006, a period of nine (9) months. All Defendant’s subpoenas were put on hold by the court. Defendant has repeatedly requested to present argument to the court on her many outstanding and fully briefed motions and to represent herself and fire attorneys, initially hired by her family without her consent and then hired by her when it became clear that this court was going to continue its lawlessness and deny her all due process, right to an attorney of her choice, and right to a speedy trial. ALL her reasonable requests have been unconstitutionally denied by outrageous and dishonorable conduct of this court.

33.  Denial of her Faretta rights has been baseless, and the reasons stated on the record by Judge Pantle are legally insufficient, lacking details and only conclusory; not properly documented by this court in a manner necessary to deny Faretta rights. Speedy trial has been violated as de facto removing Defendant as pro se counsel between July 6, 2005, when the court prohibited her from filing pleadings, while at the same time denying appointment of an attorney, until Defendant hired an attorney on January 19, 2006, means defense could not have agreed to any continuance during that time and therefore, all continuances during these seven (7) months must be charged to the State, and therefore case must be dismissed for speedy trial reasons.

34.  Therefore, Defendant has been unconstitutionally barred from this court from filing or presenting this motion and many other motions, many of which have been fully briefed since February 2005. Attorneys acting on her behalf, against her wishes, have not fully presented all issues stated in Defendant’s pro se pleadings to the court. She therefore, is requesting her attorneys, denied their request to withdraw by the court and forced to continue to represent Defendant, and therefore appointed by the court over her objection, to file a motion to vacate July 6th, 2005 order preventing Defendant from filing pleadings, as well as adopt this motion and enter this motion, or in the alternative let Defendant pro se argue this motion. If the court won’t allow Defendant to argue it, Defendant requests that it be entered as an Offer of Proof, so that on appeal arguments and defenses she would have presented are preserved on the record.

            WHEREFORE, Defendant respectfully requests this Court to dismiss this case with prejudice for a fatally flawed indictment, or in the alternative for lack of due diligence or speedy trial violation. If this motion is not allowed to be filed for argument, then Defendant requests it be entered as an offer of proof.

                                                                        Respectfully Submitted,

                                                                        _______________________

                                                                        Linda Shelton, Pro Se

 

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

Pro Se Defendant

 

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct.

                                                                        __________________________

                                                                        Linda Shelton, Pro Se

 

Dated: August 4, 2008

[1] People v. Foxall, 283 Ill. App. 3d 724 (1996): The defendant was charged by information with disorderly conduct based on transmitting a false report of sexual misconduct to the Department of Children and Family Services. Foxall, 283 Ill. App. 3d at 727. The reviewing court held that the information was insufficient because it did not specify the contents of the false report, and basic fairness required the State to identify the allegedly false statements. Foxall, 283 Ill. App. 3d at 727.

 

Davis: The reviewing court found that the indictment was insufficient when the defendant was charged with official misconduct based on “disseminat[ing] information,” but the indictment did not identify the contents of the alleged communication. Davis, 281 Ill. App. 3d at 990.

 

People v. Stoudt, 198 Ill. App. 3d 124 (1990): The reviewing court held that a complaint that charged defendant with resisting a police officer was insufficient when the complaint stated that the officer was engaged in the execution of his official duties but did not identify the authorized act the officer was performing. Stoudt, 198 Ill. App. 3d at 128.

 

People v. Leach, 279 N.E.2d 450 (Ill.App.1st, 1972): The defendant in Leach was charged with resisting or obstructing a police officer. The charging instrument was insufficient because it only stated that the defendant committed the above offense by knowingly obstructing a police officer. Id. at 453-454

 

United States v. Bobo, 344 F.3d 1076 (11th Cir, 2003): The indictment was insufficient because it failed to specify the nature of the scheme used by the defendant to defraud the State of Alabama and the United States.

 

United States v. Nance, 533 F.2d 699 (D.C. Cir., 1976): The indictment was insufficient because it failed to apprise the defendant of the nature of the false pretenses by which the defendant gained unauthorized control over money.

 

People v. Gerdes, 527 N.E.2d 1310 (Ill.App.5th, 1988): The defendant in Gerdes was charged with obstructing justice by giving false information to the police. The charging instrument did not specify the nature of the allegedly false information. The defendant was therefore left to wonder which of many statements to the police the basis for the charge against him was, so the appellate court dismissed the indictment. Id.

 

 

 

 


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