August 20, 1998 SECOND MOTION TO SUPPLEMENT THIS DECLARATORY JUDGMENT ACTION/COMPLAINT PURSUANT TO FRCP 15 (a), in LAMBROS vs. FAULKNER, Civil No. 98-1621. PARTIAL EXHIBITS INCLUDED.
I hereby state under the penalty of perjury that a true and correct copy of the attached:
a. SECOND MOTION TO SUPPLEMENT THIS DECLARATORY JUDGMENT ACTION/COMPLAINT PURSUANT TO FRCP 15 (a).
Dated August 20, 1998, was served on the following persons on this 22nd day of August 1998:
1. Clerk of the Court
District of Minnesota
U.S. Federal Courthouse
316 North Robert Street
St. Paul, Minnesota 55101-1460
2. President Fernando Henrique Cardoso & Brazil's Supreme
c/o Ambassador of Brazil
3006 Massachusetts Ave N.W.
Washington, D.C. 20008 USA
3. Lambros will serve Defendants as soon as Clerk responds to Lambros' letter dated August 19, 1998, as to the name and address of Defendants COUNSEL and copy of Defendants Counsel letter to the Court, dated August 10, 1998.
4. Global Internet release to global Human Rights Groups and Universities as well as supporters of "BOYCOTT BRAZIL."
John Gregory Lambros, Pro Se
Reg. No. 00436-124
P.O. Box 1000
Leavenworth, Kansas 66048-1000 USA
JOHN GREGORY LAMBROS, #00436-124
PO Box 1000
Leavenworth, Kansas 66048-1000, USA
ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA
ATTORNEY SHEILA REGAN FAULKNER, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA
FAULKNER & FAULKNER, Attorneys-at-Law, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA;
JOHN & JANE DOE'S, persons employed by Attorney C.W. Faulkner, Sheila Regan Faulkner and Faulkner & Faulkner in the representation of John Gregory Lambros;
Defendants (Severally and jointly liable).
CIVIL CASE NO.
DEMAND FOR TRIAL BY JURY, Title 28 USC Rule 38 & 39.
COMPANION CASE NO.
U.S. vs. LAMBROS, Criminal File No. CR-4-89-82(05), District of Minnesota, Eighth Circuit Court of Appeals No. 65 F.3d 698 (1995).
SECOND MOTION TO SUPPLEMENT THIS DECLARATORY JUDGMENT
ACTION/COMPLAINT PURSUANT TO FRCP 15(A).
Comes now JOHN GREGORY LAMBROS, (hereinafter Plaintiff), in propria persona, and moves this Court to permit the filing of this SECOND SUPPLEMENTAL INFORMATION pursuant to Federal Rules of Civil Procedure 15(a), as to the e following facts:
1. Plaintiff originally filed this action on June 17, 1998.
2. U.S. Marshals served Defendant's on July 21, 1998.
3. Plaintiff served the Clerk of the Court with "MOTION TO SUPPLEMENT THIS DECLARATORY JUDGMENT ACTION/COMPLAINT PURSUANT TO FRCP 15(a)," on July 22, 1998.
4. Plaintiff served Defendant's with "MOTION TO SUPPLEMENT THIS DECLARATORY JUDGMENT ACTION/COMPLAINT PURSUANT TO FRCP 15(a)," dated July 20, 1998, on August 4, 1998, via U.S. Certified Mail envelopes. To date, Plaintiff has not received the return receipt of the mailings.
5. Plaintiff served Defendant Sheila Regan Faulkner Admissions with the originally filed action on June 17, 1998 and served by U.S. Marshals on July 21, 1998. Admissions totaled 25.
6. Admissions were served on July 29, 1998, to Larry Pebbles, c/o Burnett Reality, 13608 - 80th Circle, Maple Grove, Minnesota 55369, via U.S. Certified Mail No. Z-574-066-824. Return Receipt was signed and returned to Plaintiff. Pebbles was requested to respond to 15 Admissions.
7. Admissions were served on July 29, 1998, to LAW OFFICE MANAGEMENT INC., Suite 500, 701 Fourth Avenue South, Minneapolis, Minnesota 55415, via U.S. Certified Mail No. Z-574-066-822. Return Receipt was signed and returned to Plaintiff. Law Office Management Inc. was requested to respond to 12 Admissions.
8. Admissions were served on August 14, 1998, to THE PARVUS COMPANY, 8403 Colesville Road, Suite 610, Silver Springs, Maryland 20910, via U.S. Certified Mail No. Z-138-670-633, Return Receipt Requested. THE PARVUS COMPANY was requested to respond to 23 Admissions.
9. Plaintiff respectfully requests the following information, facts, and/or issue to SUPPLEMENT his already pending above-entitled action as to guarantee the payment to repair damages/injuries caused to Plaintiff, by Defendant's, as to LEGAL MALPRACTICE, which included claims of (a) breach of duty; (b) failure to exercise due diligence; (c) negligence; (d) improper advice; (e) failure to interview and/or subpoena witnesses; (f) failure to consult with and/or communicate regularly with client; and (g) failure to understand or know or apply the law.
SUPPLEMENTAL INFORMATION, FACTS, AND/OR ISSUE:
10. Plaintiff was indicted on multiple counts stemming from a cocaine importing conspiracy.
11. Count One (1), the overarching conspiracy-to-distribute count under Title 21 U.S.C. §846, §841(A)(1), and §841(b)(1)(A)(ii). See, U.S. vs. LAMBROS, 65 F.3d 698, 700 (8th Cir. 1995).
12. Count Five (5), involved two (2) kilograms.
13. Count Six (6), involved two (2) kilograms.
14. Count Eight (8), involved two (2) kilograms.
15. Count One (1) violation under §841(b)(1)(A)(ii), requires the intent to distribute in EXCESS OF FIVE (5) KILOGRAMS OF A CONTROLLED SUBSTANCE IN "A SINGLE TRANSACTION." See, U.S. vs. BLACKSTOCK, 1998 WL 152926, (6th Cir. Mich.), where the court states: "Although Blackstock distributed in excess of five (5) grams of crack in the aggregate, the presentence investigation report reveals that he never distributed five or more grams of crack on any single occasion, consequently, Blackstock was not eligible for the mandatory minimum sentence under §841(b)(1)(B)(III);" U.S. vs. WINSTON, 37 F.3d 235, 240-41.
16. Plaintiff's presentence investigation report did not reveal that he distributed five or more kilograms of cocaine on any single occasion.
17. The indictment, as record evidence, does not state Plaintiff distributed and/or conspired to distribute five (5) or more kilograms of cocaine on any single occasion.
18. The Grand Jury was never presented with information as to Plaintiff's distribution and/or intent to conspire to distribute five (5) or more kilograms of cocaine on any single occasion.
19. The jury was never presented with information as to Plaintiff's distribution and/or intent to conspire to distribute five (5) or more kilograms of cocaine on any single occasion.
20. Defendant's did not advise Plaintiff, Jury, U.S. Assistant Attorney or the Court that Count One (1) required "A SINGLE VIOLATION" of five (5) or more kilograms of cocaine. See, §841(b)(1)(A):
21. The Government never proved the essential single violation of more than five kilograms as required in Count One (1).
22. The record does not contain sufficient other evidence to support a conviction of Plaintiff on Count One (1). Therefore, a new trial would of been prohibited by double jeopardy principles if Defendants would of raised the above issue before sentencing and requested a new trial on Counts 5, 6, and 8, as the jury was left with a false impression and presented false information from the Grand Jury, Defendants, U.S. Assistant Attorney Douglas Ray Peterson, and Judge Murphy.
23. Plaintiff has attached as an EXHIBIT to this Motion a copy of an initial draft of the above information that will submitted to the Courts for review in the near future, entitled "DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL AND/OR COURT ERROR MOVANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION ON COUNT ONE (1), TITLE 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)."
24. On August 19, 1998, Plaintiff received copy of Magistrate Judge John M. Mason's OR , dated August 12, 1998, filed on August 13, 1998, as to ORDER EXTENDING TIME TO ANSWER, in this case.
25. On August 19, 1998, Plaintiff wrote the Clerk of the Court as to the fact that Plaintiff did not receive copy of Defendants counsel's letter to the court requesting an extension of time to serve and file an answer to the Plaintiff's complaint, dated August 10, 1998. Plaintiff requested copy of Defendant's counsel letter for his record and to be able to serve this MOTION to Defendant's counsel as per the rules of the Court.
26. I hereby certify that the above and attached exhibits are true and correct pursuant to Title 28 U.S.C.A. §1746.
Dated: August 20, 1998
John Gregory Lambros, Pro Se
Reg. No. 00436-124
P.O. Box 1000
Leavenworth, Kansas 66048-1000
DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL AND/OR COURT ERROR MOVANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION ON COUNT ONE, TITLE 21 U.S.C. 846, 841(a)(1) and 841(b)(1)(A).
On May 17, 1988, Movant was indicted for Conspiracy to possess with the intent to distribute in excess of five kilograms of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21 U.S.C. §846, §841(a)(1), §841(b)(')(A).
The question for review is "did the evidence presented at trial satisfy the burden needed to be proved to convict movant under (b)(1)(A)?"
It was alleged that movant made three separate transactions, counts S, 6, 8, involving two kilograms each, which was then aggregated together, to satisfy the "in excess" of five kilograms, requirement of §841(b)(1)(A). It has never been alleged (other than in the charge itself) or proven by any standard of proof that movant was involved in one single transaction involving at least five kilograms of cocaine.
Title 21 U.S.C. §841(b)(1)(A) requires that there be at least one single violation of 5 kilograms or more of cocaine. The record will not support such a finding.
The government simply combined the three separate violation(s) together to meet the 5 kilogram requirement.
This issue is addressed point blank in U.S. v. Blackstock, 1998 WL 152926, '6th Cir. Mich.), where the court states: "Although Blackstock distributed in excess of five grams of crack in the aggregate, the presentence investigation report reveals that he never distributed five or more grams of crack on any single occasion. Consequently, Blackstock was not eligible for the mandatory minimum sentence under §841(b)(1)(B)(iii)."
See also, U.S. v. Winston, 37 F.3d 235, 240-41 (CA6 1994), Part VI, , where the court states:
It is obvious from the statute's face - from its use of the phrase "a violation" - that this section refers to a single violation.... This straightforward understanding of-the statute is not only in keeping with our duty to "construe narrowly the applicability of any criminal statute," (cites Omitted), but it is also in keeping with Congress' expressed purpose in enacting 21 U.S.C. §841(b), which was to target major drug traffickers and manufacturers, kingpins, and masterminds of criminal organizations.......If we were to construe 21 U.S.C. §841(b)(1)(A) as applying to aggregate amounts of drugs held on various separate occasions, it could be users who never possess more than a few grams at a time. The phrase, "a violation," makes it clear that this was not Congress's intent. 
 In this way, §841(b)(1)(A) is quite unlike the sentencing guidelines. When applying the guidelines to a defendant convicted of participation in multiple drug violations or in a drug conspiracy, courts are required to aggregate the amounts of drugs for which the defendant and his or her coconspirators were responsible. See USSG §2D1.1, comment, (nn.6 12), Section 841(b)(1)(A), on the other hand, requires a sentencing court to consider separate violations of §841(a) without aggregating the amount of drugs involved. Accord United States v. Mergerson, 4 F.3d 337, 346 (5th. Cir. 1993)((holding that, when applying guidelines, it is proper for sentencing court to use amount of drugs discussed in negotiations in order to calculate base offense level, whereas when applying §841(b)(1)(A), "[m]ere proof of the amounts 'negotiated'...would not count toward quantity of heroin applicable to conspiracy count."), see also, U.S. v. Darmand, 3 F.3d 1578, 1581 (CA2 1993)i U.S. v. Estrada, 42 F.3d 228, 232-34 (CA4 1994).
The cases above clearly support movant's claim that he was not eligible for §841(b)(1)(A) due to insufficiency of the evidence.
The next obvious question is: "what is the remedy for the government's failure to satisfy the required essential evidence to support a conviction under (b)(1)(A)?"
It is movant's position that the federal courts of the U.S. have misinterpreted the (b) portion of 841 to be only a sentencing provision when in reality Congress intended the (b) portion to be included within the charge. This reasoning comes from the fact that the statutory maximums for specific violations of 814(a)(1) are set forth in the (b) portion. Frankly, the statutory maximums can not be known without the (b) portion, therefore, making the (b) portion essential in order to give the court statutory authority to impose a penalty for a violation under 841.
Movant concedes that the (b) portion argument has been labeled by some courts as nothing more than a sentencing provision but movant disagrees with this holding as will this court when it has asked the very simple question of "How can the (b) portion be only a sentencing provision when it contains the setting of - the statutory maximums that must be known prior to arraignment to allow a defendant fair notice so that he may make an intelligent decision to proceed at bar or to a jury trial ?" see Fed. R. Crim. Proc., Rule ll(c)(l). The answer is the specific (b) subsection must be included in the charge delivered by the grand jury or else the statutory penalty can not be known from the outset as intended by Congress.
The point being made is that only Congress can prescribe a penalty for a given crime. It is beyond the judiciary's duties to prescribe the statutory penalty. see United States v. Evans, 333 U.S. 483 (1948), Id. at 495.
In reality a person should be able to look at the statutory provisions before committing the crime to determine the consequences of that crime. It is under that line of reasoning that we have the Code of Federal Register and the statutes which place us on notice of what is legal and what is not. In short, was the defendant a street level dealer, medium level distributor or a kingpin? Here the government created a kingpin out of nothing more than a street level dealer by combining small amounts to meet their burden which is obviously not Congress' intent as proclaimed in the cases above.
The proverbial bottom-line here is that the government has not met its burden of-proving the "essential" single violation of more than five kilograms as required by statute. Therefore, Movant's conviction must be vacated and the charge dismissed for lack of evidence.
The remaining question is whether the record contains sufficient other evidence which will support this conviction. If the evidence, is legally insufficient to support movant's conviction, a new trial is prohibited by double jeopardy principles. See U.S. v. McAleer, 1998 WL 101804, at *4 (lOth Cir. 1998)(citing Burks v. U.S., 437 US 1, 18 (1978)). If, however, the record contains sufficient evidence to support this conviction without the combining of the three separate violations, then justice requires a new trial. See U.S. v. Tateo. 377 US 463. 465 (1964).
The one single violation of more than 5 kilograms did not occur and therefore this Court's determination must be in accordance with the Supreme Court's remedy provided in Burks, supra.
WHEREFORE, Movant respectfully requests that the count one be vacated and barred from re-indictment by double jeopardy principles and that a new trial is required on counts 5, 6, 8, as the information from count one, conspiracy charge, left the jury with a false impression, as movant should have not been indicted on count one, due to lack of evidence presented to the grand jury, with any other relief this Court finds just and proper.
For more information write (snail mail) JOHN GREGORY LAMBROS directly at:
JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.