March 15, 2001, PLAINTIFF'S MOTION TO ENTER NEWLY DISCOVERED EVIDENCE INTO THIS ACTION. "CLAIM EIGHTEEN (18)" Dated: March 15, 2001. This document offers proof as to the 1976 indictment that prejudiced Lambros during his sentencing that FAULKNER either covered-up and/or was ineffective in not researching. Please note that the motion clearly proves that the following government officials violated Title 18 U.S.C. Section 1001, in offering false, fictitious, or fraudulent statements or representations to the GRAND JURY: (a) Deputy United States Marshall James L. Propotnick; (b) Special Agent Donald E. Nelson of the Federal Drug Enforcement Administration; (c) James P. Braseth of the Federal Drug Enforcement Administration; and (d) Deputy United States Marshall Leon A. Cheney. This motion is a total of seven (7) pages which' includes a one page certificate of service. EXHIBITS NOT SCANNED.
CERTIFICATE OF SERVICE
LAMBROS vs. FAULKNER, et al., CIVIL CASE NO. 98-1621(DSD/JMM)
I hereby state under the penalty of perjury that a true and correct copy of the following:
a. PLAINTIFF'S MOTION TO
ENTER NEWLY DISCOVERED EVIDENCE INTO THIS ACTION.
"CLAIM EIGHTEEN (18)."
Dated March 15, 2001.
was served on the following this 16th day of March, 2001, via U.S. Mail through the prison authorities, to:
1. Clerk of the Court,
District of Minnesota, 316 North Robert Street, St.
Paul, Minnesota 55101. One original and one copy. U.S. CERTIFIED MAIL NO. 7000-0520-0021-3725-4859 - RETURN RECEIPT REQUESTED.
2. Attorney Gregory J.
Stenmoe, BRIGGS & MORGAN, 2400 IDS CENTER. 80 South
Eighth Street, Minneapolis, Minnesota 55402.
3. Attorney Donna Rae Johnson and Attorney Deborah Ellis, 700 St. Paul Bldg., 6 West Fifth Street, St. Paul, Minnesota 55102.
4. Internet release to
BOYCOTT BRAZIL SUPPORTERS and HUMAN RIGHTS GROUPS
5. LAMBROS family members.
Signed: John Gregory Lambros
End of Certificate of Service
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JOHN GREGORY LAMBROS
CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER
SHEILA REGAN FAULKNER
FAULKNER & FAULKNER, Attorneys at Law
JOHN & JANE DOE
CIVIL FILE NO. 98-1621 (DSD/JMM)
PLAINTIFF'S MOTION TO ENTER NEWLY DISCOVERED EVIDENCE INTO THIS ACTION. "CLAIM EIGHTEEN (18)."
COMES NOW, JOHN GREGORY LAMBROS, Plaintiff, Pro Se, (hereinafter Movant) offering this Court the filed March 24, 1976, INDICTMENT of Movant, UNITED STATES OF AMERICA vs. JOHN G. LAMBROS, Cr. 3-76-17. EXHIBIT A. Defendants' allowed the Court to use this indictment and information contained within against Movant during the trial and sentencing of Movant. Plaintiff was prejudiced. The following TRUE AND CORRECT facts exist as to INDICTMENT Cr. 3-76-17 being: DEFECTIVE, DUPLICITOUS, MULTIPLICITOUS, AND LACK OF JURISDICTION BY U.S. DISTRICT COURT THAT ACCEPTED THE PLEA AND SENTENCED MOVANT:
1. On February 21, 2001 Attorney Stenmoe mailed Movant copies of his past INDICTMENTS that were used to enhance Movant's sentence by the U.S. Government during the filing of Title 21 U.S.C.A. §851, Proceedings to Establish Prior Convictions, in which Defendant's represented Movant. EXHIBIT B.
2. Attorney Peter Thompson, currently with THOMPSON and SICOLI, LTD., 2520 Park Ave., Minneapolis, Minnesota 55404-4403, Tel. (612) 871-0708, represented Movant during the plea bargaining and sentencing of INDICTMENT Cr. 3-76-17, in which Movant was sentenced to TEN (10) YEARS. EXHIBIT C. (JUDGEMENT AND COMMITMENT ORDER)
End of page 1
3. INDICTMENT Cr. 3-76-17 filed on March 24, 1976, In the United States District Court, District of Minnesota was a two (2) count INDICTMENT in violation of Title 18 United States Code, Sections 111 AND 114. Counts I and II described the February 24, 1976 misrepresentation by Federal officials to Movant as to there true identity. Movant had no knowledge of the identity of alleged victim Federal Marshalls and Federal Drug Enforcement Administration Agents. Court hearings established that the agents identified themselves as "JIM OPEN UP." The acts described within the indictment occurred at Movant's residence in St. Paul. THE LAND AND/OR RESIDENCE WAS NOT OWNED BY THE UNITED STATES GOVERMENT NOR FORMAL CESSION THEREOF TO THE UNITED STATES BY THE STATE OF MINNESOTA OCCURRED WHERE THE ACTS OCCURRED.
4. Title 18 U.S.C. Section 114 in "1976", was for the violation of "MAIMING WITHIN MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES." The statute states, 11[W]however, within the special maritime and territorial jurisdiction of the United States, with intent to maim or disfigure, cuts, bites, or slits the nose, ear, or lip, or cuts out or disables the tongue, or puts out or destroys an eye, or cuts off or disables a limb or any member of another person; or . . . Shall be fined not more than $1,000.00 or IMPRISONED NOT MORE THAN SEVEN (7) YEARS or both." See, U.S. vs. STONE, 472 F.2d 909, 915 (5thCir. 1973), EXHIBIT D (Id. page 915).
5. The term "SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES," as used within Title 18 U.S.C. is defined at Title 18 U.S.C. Section 7. This term means that the crime must take place on land owned by the U.S. Government. See, U.S. vs. LEWIS, Ill F. 630 (C.C.W.D.Tex. 1901) (Whether a homicide committed within the boundaries of a state constituted an offense against the laws of the United States, OF WHICH A FEDERAL COURT HAD JURISDICTION, depends on two (2) questions: First, whether there had been such a cession by the state to the United States of the territory upon which the act alleged to
End of page 2
constitute the crime was committed as to render such territory a "place or district of country under the exclusive jurisdiction of the United States," within former H 451 and 452 of this title [now this section and § 1111 of this title] which was a QUESTION OF LAW for the court; and, second, if such cession was made, whether the act was committed within the territory so ceded, which was a QUESTION OF FACT, to be submitted to the jury.); U.S. vs. HERNANDEZ-FUNDORA, 58 F.3d 802, cert. denied, 132 L.Ed2d 290, on remand (District Court was entitled to determine that federal correctional institution fell within SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES, and to remove that issue from consideration by jury in trial for assault by defendant upon another inmate.)(1995).
6. The U.S. District Court did not have JURISDICTION to convict and sentence Movant for INDICTMENT Cr. 3-76-17 filed on March 24, 1976, as the alleged act did not occur on the grounds and lands reserved and acquired for use of the United States.
7. Count I named the following U.S. Government officials: (a) Deputy United States Marshall James L. Propotnick; (b) Special Agent Donald E. Nelson of the Federal Drug Enforcement Administration; and (c) James P. Braseth of the Federal Drug Enforcement Administration.
8. Count II named Deputy United States Marshall Leon A. Cheney.
9. Count I and II both cite violations of Title 18 U.S.C. 111 and 114, on the basis a single violation and/or single action of Movant. The INDICTMENT merely names different federal officers that where allegedly affected thereby.
10. Title 18 U.S.C. Section 111 was defined by the U.S. Supreme Court as to MULTIPLE OFFENSES in LADNER vs. U.S., 3 L-Ed-2d 199 (1958) (Congressional meaning was open to question on face of this section penalizing assault on federal officer engaged on official duty and, accordingly said section was construed NOT
End of page 3
TO CREATE MULTIPLE OFFENSES FROM SINGLE ACT MERELY BECAUSE MORE THAN ONE FEDERAL OFFICER WAS AFFECTED THEREBY).
11. Therefore, INDICTMENT Cr. 3--76-17, if valid, should of only charged one (1) count, not two (2) counts.
12. DEFECTIVE INDICTMENT: The failure to include the ELEMENT of "MAIMING". by charging Movant with violating Title 18 U.S.C. 1 114, RENDERS AN INDICTMENT CONSTITUTIONALLY DEFECTIVE. See, U.S. vs. MORALES-ROSALES, 838 F.2d 1359$ 1361-1362 (5th Cir. 1988)(The failure of an information to charge an offense is JURISDICTIONAL DEFECT that is NOT WAIVED BY GUILTY PLEA). Therefore, the government's failure to plead with specificity all of the charges against Movant created a DEFECTIVE INDICTMENT which failed to put this Movant on proper notice of the charges against him. See also, U.S. vs. PUPO, 841 F.2d 1235 (4th Cir. 1988), cert. denied, 488 U.S. 842 (1988)(a defective indictment could not be saved by reference to a particular statute. Here the indictment failed to allege the words 'knowing and intentionally').
13. RULE OF LENITY: The rule of lenity requires the sentencing court to impose the lesser of two penalties where there is an actual ambiguity over which penalty should apply. See, U.S. vs. TRAN, 234 F-3d 798, 800 Head Note 16 (2nd Cir. 2000); U.S. vs. CANALES, 91 F.3d 363, 367-368 Und Cir. 1996)(offering other cases to support).
14. Movant was sentenced on Count I of INDICTMENT Cr. 3-76-17 to a term of imprisonment for a period of ten (10) years. See, EXHIBIT C.
15. Count I charged violations of Title 18 U.S.C. If 111 AND 114. SECTION 111 carried a maximum penalty of imprisonment not more than TEN (10) YEARS. SECTION 114 carried a maximum penalty of imprisonment not more than SEVEN (7) YEARS. See, U.S. vs. STONE, 472 F.2d 909, 915 (5th Cir. 1973). See, EXHIBIT D.
16. Movant should not of been sentenced to more than SEVEN (7) YEARS UNDER THE RULE OF LENITY.
End of page 4
17. Movant respectfully requests to SUPPLEMENT paragraph twelve (12) to include: The ELEMENTS of "INTENT" and "DISFIGURE" as elements of violating Title 18 U.S.C. 114. See, U.S. vs. SCROGGINS, 27 F.Cas. 999, No. 16243 (C.C.Ark. 1847) (The particular weapon, means, or instrument used is not material, provided the result is MAIMING or DISFIGURING with INTENT to do so).
18. Movant believes the government officials named in paragraphs seven (7) and eight (8), PROPOTNICK, NELSON, BRASETH, and CHENEY, violated Title 18 U.S.C. Section 1001, which provides: "[W]however, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000-00 or imprisoned not more than five years, or both." See, U.S. vs. UCO OIL CO., 546 F.2d 833, 836 (9th Cir. 1976) (The law of fraud knows no difference between express representation on the one hand and implied misrepresentation or concealment on the other. UCO, at 836) When they testified at the GRAND JURY, during pretrial hearings, and the filing of government documents as to Movant's violations of Title 18 U.S.C. Section 114, in which they claimed occurred on property owned by the United States Government.
19. To the best of Movant's knowledge Defendant Attorney Charles Faulkner never requested a copy of the INDICTMENTS that where used to enhance my sentence and used during trial testimony in front of the JURY.
20. This Movant was PREJUDICED by Defendants' actions in allowing. an invalid INDICTMENT, Cr. 3-76-17, to be used against Movant.
End of page 5
21. Movant respectfully requests this court to enter the above information as NEWLY DISCOVERED EVIDENCE INTO THIS ACTION, as CLAIM EIGHTEEN (18).
22. 1 DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Title 28 U.S.C.A. § 1746.
EXECUTED ON: March 15, 2001
Signed: John Gregory Lambros, Pro Se
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.