Sat. Aug 8th, 2020

Sean David Morton Expedited Motion for Summary Dismissal for Vindictive Prosecution

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

 

Sean David Morton

 

                  Plaintiff/Petitioner – Appellant, Pro Per

 

  v.

 

United States

 

                  Defendant/Respondent –  
Appellee.

 

 

Case No. 17-50351

 

expedited emergency motion for summary disposition

 

vindictive prosecution

 

Proper for equity and common law like powers in the interest of justice

 

PRESUMPTION OF VINDICTIVENESS

BY INTERFERING WITH & SENDING BACK SEAN’S

NON-COMMERCIAL APPEAL DONATIONS AND MORE

 

There is a presumption of vindictiveness because the DoJ reopened closed criminal investigations over 5 years after the IRS cases were closed in order to criminally charge Sean a victim of fraud for following the advice of tax preparers.  There is a presumption of vindictiveness by the prosecutor’s constantly attacking Sean’s beliefs rather than focus on the elements they needed to prove.  There is a presumption of vindictiveness by the prosecutor’s use of false and omitted evidence to paint a false story and mislead the judge that Sean is the architect who “figured out the oid’s on his own” and “made the checks on check stock” (which is impossible).  There is a presumption of vindictiveness and overzealousness because the US Attorney manual suggests 15 charges maximum to appear fair but they chose to charge Sean with 29 charges, which seems vindictive and not fair by the governments own standard. 

There is a presumption of vindictiveness that the government offered Melissa a misdemeanor plea deal and in sentencing said they should be treated the same, yet refused to give Sean a plea deal. It’s a presumption of vindictiveness that the government wanted Sean to be sentenced to 87 months because it is allegedly fair to ensure uniform sentencing of “others similarly situated who peddled the schemes”, yet Adams caused it all, had thousands of followers coming to his seminars buying his videos and books where he extensively peddled his scheme and took a plea deal of 40 months. Sean had no dogs in that race, he never “peddled the schemes” he was defrauded by.  It can only be vindictive to treat Sean so much harsher than Adams.  In the original injunction the government mentioned Adams seminars, videos and how he peddled his scheme so extensively.  Vindictiveness is the only explanation for the drastic inequity and mal treatment of Sean vs the fraudsters who are the cause.

There is a presumption of extreme animus, hatred and vindictiveness because the government went so far as to stop Sean’s fundraisers to support his right to appeal and access the courts.  There is a presumption of vindictiveness by the prosecutor’s who called Sean’s collateral attacks frivolous and maliciously said Sean’s attempts to get remedy are meant to obstruct the courts.  

There is a presumption of vindictiveness because the Valerie completely denied discovery to Sean and early on in the first status conference falsely said she gave discovery.  Sean’s attorney Cader (before Sean was pro per) said, “well it hasn’t been given to me” to which Valerie insisted yes she provided discovery.  Co-defense chimed in he still didn’t have a passcode.  Valerie insisted the discovery provided by the government weeks ago is useable on any computer but the ‘caveat’ is the passcode isn’t provided.  When Sean demanded discovery instead of just give it to him Valerie took the same aggressive stance that discovery was provided.  Sean had a computer expert verify the two discs he did get were blank but Valerie spent more time writing letters that the government already provided discovery than it would have took to just resend it if she thought it was really sent.  It shows a presumption of vindictiveness by falsely posting the discovery list so late just before trial with no envelopes to verify the discs were mailed and the letter describing the bulk of discovery falsely alleges it was hand delivered, to an address that is actually a post office box.  Sean could not get mail there without certified mail that must be signed for.  Why be so vindictive and insist the government already gave discovery when Sean insisted he still needed to get discovery?  The discovery letters posted by the government just before trial say if Sean needs any discovery the government will happily provide it.  Its easy to presume vindictiveness because the discovery was full of impeachment and exculpatory evidence such as the government contractor Larry D Behers OID (See EXHIBIT 13) false claims mixed into Sean and Melissa’s records that Sean would have raised hell about if he knew and all the evidence that the government knows Adams and Hall are the cause.

There is a presumption of vindictiveness by rigging the jury with Katie Ingebretston who is a political consultant, political operative, expert in infiltrating and was the campaign manager for the same 2012 Obama re-election campaign.  It is very suspicious and vindictive to plant the same political operative that oversaw the same election campaign believed to be the source of the IRS targeting scandal that targeted Sean in the first place.  This woman advises the Federal government and her work history presumes bias and denied Sean his right to an impartial jury under the Sixth amendment.  There is no way this was random, the jury pool was mostly government contractors and for the prosecutors to go so far as to deliberately choose a jury that would be likely to rule in favor of the government is as vindictive as it gets.

DISCUSSION

The record shows the prosecutors referred to numerous things not in evidence.  One is particularly disturbing and shows extreme animus and hostility of Sean’s rights and that is the reference prosecutors made to a fundraiser for Sean’s appeal.  See sentencing transcript and presentence report. What Valerie failed to mention is that the fundraiser was to support Sean’s appeal and the DoJ (probably Valerie) literally forced two fundraiser platforms to shut down the fundraiser and return the donations to support Sean’s appeal. 

Valerie ridiculed the fundraiser saying Sean didn’t raise the full amount he asked, and provided no real reason for mentioning it except it was obviously very, very important to her and stuck out in her mind as a key point she wanted on the record.   Sean wants it on the record as well that interfering with his right to access the courts by sending donations back to supporters is mean and vindictive, actually, it is beyond obscene and evil in Sean’s opinion.

There were large sums of money that was donated by many people to support Sean in his appeal, which is nothing Valerie or the DoJ should use against Sean in sentencing or ridicule.  It shows people believe Sean is entitled to relief enough to try to help him access the courts. 

Donors who wanted to support Sean’s right to appeal were sent a letter from the fundraiser site saying that the fundraiser was ‘illegal’ and deemed to “thwart the will of the Department of Justice” as the reason their donation was being returned.  That is how far the hive of prosecutors behind this political hit has gone to take Sean down and ensure their plan to falsely convict Sean for other peoples crimes works.  They think the DoJ’s will is to deny Sean the resources needed to access the courts and effectively appeal or collaterally attack his imprisonment he believes is in error. 

The fundraiser sites all have entire sections devoted entirely to legal fundraising just for appeals and collateral attacks.  Basically the “thwart the will of the DoJ” letter was really deterrence to scare conservative minded people into not assisting these political targets like Sean.   In many ways it worked and scared Sean’s supporters who jumped ship and told Sean they were too afraid to help him further because they feared DoJ would target them next and make up some alleged crime to punish them for their affiliation to Sean. 

The animus toward Sean is so much grander than most cases, Sean testified he thought the government hated him and mentioned this belief in opening and closing statements and he may not be misreading the hostility toward him.  It is terrifying that DoJ who is supposed to ensure justice would literally force a fundraising site to send appeal donations back and thwart the will of the people who want to support Sean in his quest to restore his freedom and free speech on his radio show.   What jurisdiction does DoJ have to shut down a fundraiser and deny the support already given or to tell non commercial loving supporters that they are thwarting the will of the DoJ by helping Sean have financial resources to properly appeal?  None.  This is so out of control it is evil, vindictive and obscene on its face.

Valerie and James full well knew of the exculpatory and impeachment evidence and they chose to withhold it, skirt around it and use parts of it to mis frame Sean as a criminal who deserves years in prison. 

Valerie and James are overzealous and does not dispute vindictive prosecution in notary presentments that explain bad faith, unclean hands that resulted in default on the record, which are admissible evidence and should be honored. 

Valerie and James chose to charge Sean who is a victim with no criminal history but who is what Lerner defines as right wing media with 28 counts despite the attorney manual suggesting 15 counts maximum to appear fair.  Conversely the tax preparers who the DoJ publicized had promoted and ran an enterprise and says are public dangers with extensive criminal histories and caused millions of dollars in 439 false claims and 149 fictitious instruments were only charged 4 and 2 fictitious instruments charges. 

Sean was charged with all of it, the actual principals have no false claims charges or conspiracy charges or fictitious instruments charges despite them harming Sean and hundreds of clients.  Sean has a radio show.  The judge said “the point is made with Sean” and “he’s the one who’s out there”.  Popularity of a victim radio host with no criminal history is a really infirm reason to charge the victim with excessive counts and ask for “equal time” to the architects who had a long criminal history and who were never charged with the offenses.  This situation defies common sense.  The judge sternly warned he ‘hopes Sean wont continue to podcast’.  The judge said he thinks Sean will continue to podcast, and said he believes Melissa wont podcast so he sentenced her to 4 years less than Sean, which Sean believes is vindictive and biased against free speech!  Sean told the judge the whole thing is persecutory and pernicious and he believes that is true.

There is no basis to believe the prosecutors believed in their scheme to convict Sean because they really thought he is guilty and had the required specific intent.  The record shows Valerie said Sean “believed the bonds would pay his clients debts”.  That means if she looked into the elements she couldn’t possibly think Sean had specific intent.  The prosecutors hid mountains of Brady evidence and framed Sean using false evidence specifically because they do not truly believe in Sean’s guilt.  If the prosecutors thought Sean were truly guilty they would have provided admissible evidence that wasn’t falsified and fraudulent.  This case took 5 years to the day of Halls money order, why?  Because there is no evidence of Sean’s guilt. 

“His was not the trial by peers promised by the Constitution of the United States, conducted in accordance with centuries-old fundamental conceptions of justice. It is part of our community’s sense of fair play that people are convicted because of what they have done, not who they are. Because his trial was so infused with irrelevant prejudicial evidence as to be fundamentally unfair, McKinney is entitled to the conditional writ of habeas corpus that the district court awarded him.” (McKinney v. Rees, supra,, 993 F.2d at p. 1386, fn. omitted, emphasis in original.)

 

The intentionally withheld Brady evidence shows Sean is not guilty of specific intent and the government knows it.  Vindictive and overzealous prosecution is presumed by the prosecutors numerous statements centered on disparaging Sean’s beliefs, activities and understanding of law and harassing Sean. Selective and invidious prosecution only recently discovered through withheld Brady evidence is a complete bar to this case.  The government cannot be rewarded for targeting Sean’s protected activity and criminalizing what is lawful opinions or non-criminal innocent mistake of following tax preparers Adams and Hall’s advice.

OVERCOMING THE PRESUMPTION OF VINDICTIVENESS REQUIRES THE PROSECUTORS TO REBUTE EACH OF THE FOLLOWING IN DETAIL

  1. There is a presumption of vindictiveness because the DoJ reopened closed criminal investigations over 5 years after the IRS cases were closed in order to criminally charge Sean a victim of fraud for following the advice of tax preparers.
  2. There is a presumption of vindictiveness by the prosecutor’s constantly attacking Sean’s beliefs rather than focus on the elements they needed to prove.
  3. There is a presumption of vindictiveness by the prosecutor’s use of false and omitted evidence to paint a false story and mislead the judge that Sean is the architect who “figured out the OID’s on his own” and “made the checks on check stock” (which is impossible).
  4. There is a presumption of vindictiveness and overzealousness because the US Attorney manual suggests 15 charges maximum to appear fair but they chose to charge Sean with 29 charges, which seems vindictive and not fair by the governments own standard.
  5. There is a presumption of extreme animus, hatred and vindictiveness because the government went so far as to stop Sean’s fundraisers to support his right to appeal and access the courts.
  6. There is a presumption of vindictiveness by the prosecutor’s who called Sean’s collateral attacks frivolous and maliciously said Sean’s attempts to get remedy are meant to obstruct the courts.
  7. There is a presumption of vindictiveness that the government offered Melissa a misdemeanor plea deal and in sentencing said they should be treated the same, yet refused to give Sean a plea deal.
  8. It’s a presumption of vindictiveness that the government wanted Sean to be sentenced to 87 months because it is allegedly fair to ensure uniform sentencing of “others similarly situated who peddled the schemes”, yet Adams caused it all, had thousands of followers coming to his seminars buying his videos and books where he extensively peddled his scheme and took a plea deal of 40 months. Sean had no dogs in that race, he never “peddled the schemes” he was defrauded by. It can only be vindictive to treat Sean so much harsher than Adams.  In the original injunction the government mentioned Adams seminars, videos and how he peddled his scheme so extensively.  Vindictiveness is the only explanation for the drastic inequity and mal treatment of Sean vs the fraudsters who are the cause.
  9. There is a presumption of vindictiveness because the Valerie completely denied discovery to Sean and could have just been reasonable and resent it in case Sean really didn’t get it like he said.
  10. There is a presumption of vindictiveness by rigging the jury with Katie Ingebretston who is a political consultant, political operative, expert in infiltrating and was the campaign manager for the same 2012 Obama re-election campaign that was the source of the IRS targeting scandal that targeted Sean in the first place. This woman advises the Federal government and her work history presumes bias. There is no way this was random, the jury pool was mostly government contractors and to go so far as to choose a jury that would be likely to rule in favor of the government is as vindictive as it gets.
  11. There is a presumption of vindictiveness because the prosecutors Valerie Makarewicz and James C Hughes do not deny vindictiveness and have defaulted by acquiescence which is on the record as admissible evidence and the prosecutors tacit admission of vindictive prosecution is officially confirmed by a California notary in doc ****.

 

OVERCOMING THE PRESUMPTION OF

DISCRIMINATORY PURPOSE

 

“Discriminatory purpose․ implies more than intent as volition or intent as awareness of consequences.   It implies that the decisionmaker ․ selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.”  

 

To overcome the presumption of discriminatory purpose the prosecutors need to prove the US Attorney in the US v Hall oral argument was lying when she explained to the judges that Hall’s clients were charged nationwide because they allegedly ‘subscribe to the same sovereign ideology as Hall’ and are a ‘proactive group’ that the government was charging simply because of the group affiliation.

 

 

notice:

If the prosecutors want an extension they need to provide an affidavit signed under oath of why these simple issues cannot be answered in a timely manner of seven days.  The least the prosecutors can do is to sit down, focus and explain why they should prevail and why this motion should not be granted. If the case against Sean is so airtight and Sean should be imprisoned then it does not take long to explain why.

A man is in prison totally unfairly and impermissibly.  Even one second of loss of a constitutionally protected right is irreparable injury. This expedited motion for summary disposition is about restoring the balance of equity and quickly in the interest of justice. The issues are not rocket science, and the government has had years to become familiar with every fact and the laws. The case against Sean is fully barred due to these issues therefore this motion should be resolved in Sean’s favor without delay.  Justice delayed is justice denied.

 

First, Sean is clearly be entitled to relief on the merits. There is no “substantial” question for the court to decide. The merits of the case are “so clear” that “plenary briefing, oral argument, and the traditional collegiality of the decisional process will not affect [the] decision.”

Second, there is only one question of first impression in this court, or conflict among the courts on a controlling legal principle, and the issue is not a lynchpin, it could be omitted.  The question is if non-negotiable is an exception to the definition of instrument in 514 and technically it could be resolved by simply referring to Congress definition of instrument in UCC Article 3.  If that issue were to be an impediment to summary disposition then ignore it, because it’s a mere supporting issue that can be a bar to the 514 charges, but is not the main jurisdictional bar and can be easily omitted to focus on speedy remedy.

Third, the record before the court is sufficient to allow meaningful consideration of the appeal. Although the facts may not be entirely simplistic, the court can thoroughly grasp the issues without full briefing or oral argument.

Fourth, Sean has made a showing of exigency. A delay will substantially further harm Sean who claims he is entitled to have his life, property and rights restored.  An expedited schedule for briefing an oral argument will be insufficient to prevent that harm. This is especially true because Sean’s free speech, media, loss of life and property considerations are at stake.  Sean’s imprisonment causes an avalanche of irreparable injury including injuring the public right to have Sean be protected media.  The longer the delay the more the public has cause to distrust the government and think the IRS targeting scandal is above reproach and the courts are not protecting the peoples rights to be free of oppression. Expediting remedy will restore trust in the courts and government after deep abuse and fractures in the system.

Finally, it is efficient and equitable to resolve the case through summary disposition instead of a “traditional” appellate process “with all the trappings.” Sean believes the courts strained resources are better expended on other cases, and that Sean will still receive all of the consideration that it is due on appeal.

United States v. Fortner, 455 F.3d 752,
754 (7th Cir. 2006) (“Summary disposition is appropriate in an emergency, when time is of the essence and the court cannot wait for full briefing and must decide a matter on motion papers alone.”); Groendyke Transp., 406 F.2d at 1162 (summary disposition may be warranted
“where time is of the essence,” including “situations where important public policy issues are involved or those where rights delayed are rights denied”).

 

All EXHIBITS attached to Expedited motion for summary disposition are incorporated herein by reference. EXHIBITS A,B,C,13,D&E.

I verify the foregoing is true and correct, with firsthand knowledge.

The ninth day of the eleventh month of the year two thousand eighteen

                                         In the interest of justice,

Sean David Morton, all rights reserved