U.S. v. Kalash - Drug Law Constitutionality and Other Unconventional Defenses

I'm assuming you've contacted the ACLU and the Drug Policy Alliance Network? The best argument (I feel) is probably possession of firearms versus possession of drugs and the unconstitutionality of the DEA.

It looks like you're probably about to commit legal suicide since you're readily admitting that you were involved in drug trafficking, but I wish you the best of luck in this case.
 
^ Suicide? Not really, if I remember correctly the plea bargain looked reasonable while still providing an avenue to make his constitutional arguments later.
 
Thanks.
Really.

Just a quick update - since I don't have time to crank out pages like I want to...

Sentencing was moved back from March 9th to May 4th - at the prosecutor's request.
No reason was given - just a demand that we (my attorney and I) pick a date in April or May.
May 4th worked out best for my parents and sister to make it out here, that's what we requested, that's where it got set.

Now for Nuke and Tobala - short answers.
The ACLU won't touch it because it's criminal. It doesn't matter how strong the case is to argue the laws constitutionally - it's criminal, they don't want any part of it. I've contacted them at 3 different points, this last time asking only for procedural assistance with the appeals process - and they still don't want to help.
DPAN has a list of attorneys that work with drug cases, but all that I've contacted (legitimately, and necessarily) said that I couldn't afford their services.

The best deal I got from one of them was an offer for $8,000 to help prepare and file my motions - but that would be procedural assistance only, no research, no writing, no nothing...
Only making sure I didn't get tripped up with the administrative things preventing a fair appellate hearing.
That's still out of my budget - as I'm working a minimum wage job, paying rent, feeding myself, and trying to survive. My situation wasn't supposed to be sustainable - I expected to be in prison a year ago, and I'm struggling.
Things are OK - I'm stable, self-supporting, but I'm not making any progress on my debts (which my parents are paying), and there isn't really anywhere for me to go from my current position (though my boss did just have the limo repaired and I am starting to make a little extra money driving it on the weekends/nights - but it's a private thing, not a company renting it out... It spends 9 out of 10 days parked, sometimes more.)


Tobala is correct - the plea agreement was conditional...
I said I was guilty in exchange for a good bit of a sentencing level reduction; I'm looking at 46 months according to the plea.
The "condition" is that I am able to retain all arguments presented in my motion - and the responses - I made earlier that the court denied, and appeal the ruling denying my motion to dismiss the case (namely for lack of a legitimate claim).
The prosecutor is recommending somewhere between 18-24 months (he agreed with my attorney to 18-20, then filed recommending 24 the same afternoon - bringing about the second sentencing date schedule shift from Dec. 15th to March 9th.

This last time, as I said above, no reason was given.
I've gotten fairly depressed since Feb. and haven't really done much of anything - other than exist.
The country is falling into ruins, there's more and more to be getting pissed off about, and I'm finally getting to the point where I really don't care.

Time wise, this is excellent for me. The country is ready (and NEEDS if it's to survive) a change - drastic change.
With the proper arguments (property rights trumping the Interstate Commerce Clause - making it irrelevant if it "severely affects" commerce or not, as well as the Supreme Court rulings... preventing legislated morality, preventing the ICC from allowing Congress to make laws against things that MAY LEAD to crime, making it clear that laws attempting to prevent a certain activity are not legitimate laws, and the Equal Protection clause being ignored - allowing for Governmental crimes against the citizenry in violation of federal criminal statutes (Title 18 Chapter 13 Sections 241, 242, 1951, RICO, etc.), the Constitutional protections of our rights from Governmental oppression...
Combined with the timing - economic crisis - I think this really has a chance of accomplishing something (even if it's only more public awareness leading to the open discussions necessary to change the policies...)

The court said that the purpose of a law is to do what Congress has determined the purpose of the law to be; in this case, to prevent drug use/distribution/etc... as any use/distribution MAY take drugs from "legitimate commerce" and allow it to enter "illicit" channels. Prior to the CSA, there were no "illicit" channels for the commerce to divert to - the law justifies itself and creates the very problem it is intended to solve.
The lack of reason for such a law is stupefying.
The inability to rationally review the policy and determine any positive benefit to its enactment or enforcement is surely cause for its over-ruling by the courts.

The problem remains with the "rational review" basis which the courts allow Congress to determine what is, and is not, interstate commerce (as the courts will not over-rule this, the reasoning behind the "bad" ruling in Lopez) - but as I've said, this is irrelevant, as the regulation of private property under ANY enumerated power is strictly prohibited by the 5th Amendment.

The Supreme Court ruled that the Harrison Tax Act was a "revenue generating" statute that did not intend to prohibit or discourage the use of marijuana, if it did, that the law would be invalid.
From the Harrison Tax Act, the Controlled Substances Act derived its origins...
If Congress cannot pass legislation to discourage use - how can it claim the authority to CRIMINALIZE non-criminal use of one's property?

This stuff should be a page or two back. The research is done...
I just need to compile it, write it up in motion format, and have it ready to file.
Thanks for helping get me back in the mood.
~K
 
Good luck, kalash. I still think those arguments are beyond longshots. Just keep doing your best to get whatever deal you can. It was just this term that a pro se defendant (meaning he was representing himself) had a petition granted by the U.S. Surpreme Court, reversing the Eighth Circuit when it came to misinterpretation of the federal sentencing guidelines.

http://supreme.justia.com/us/555/07-10689/percuriam.html
 
Again.
My attorney wants me to decide by Monday if I'm taking the plea. (It's the same as before - ~4 years with a possible 5k1 (further reduction.)


To Cooperate or Not: The Myths and Illusions of USSG §5K1by John B. Webster And Chrisa Gonzalez (March 2005),National Prison & Sentencing Consultants, Inc.Obviously, a defendant faced with the possibility of a substantial downwarddeparture if they opt to “cooperate” faces a seemingly complex dilemma. On one hand they will be branded a “rat” or a “snitch” and possibility face the adverse consequences,real and imagined, in the event that a prison sentence results nonetheless. On the otherhand, it is often likely (if not a guarantee) that others involved in the same crime orindictment will be discussing the possibility of cooperation resulting in “a race” to be the first. Failure to act in time may result in the inability to cooperate at all and avail oneselfof the substantial benefits of a downward departure. This dilemma is present and mostpoignant in drug related cases as most if not all drug crimes usually involve more than one person and often involve many who are indicted as part and parcel of a drug conspiracy. Complicating matters is the fact that an individual with a “minor” part in theconspiracy is criminally liable for the total amount of drugs involved in the entireconspiracy. As a result, an individual may find themselves faced with the potential ofscores if not hundreds of months in prison for what they thought was purchasing ordistributing a relatively small amount of drugs.Often, it is heard that a criminal defendant in such a matter is facing 20 yearsor more for “selling a gram or two.” Needless to say, and not coincidentally, these typeof defendants are “ripe for the picking” and often immediately begin to cooperate and tellthe law enforcement personnel and the prosecution everything and anything they want toknow in the hopes that the police will just let them go home

...
After doing 48 months in the Federal system myself, let me be the first to tell you that [IF you provide assistance to the government so they can prosecute others, you would] be classed alongside child molesters as the worst of the worst kind of inmate. My advice to you sir, is to keep that kind of talk to yourself, if you plan on surviving inside... BOP guidelines will probably class you as Low/Medium custody.. and in the feds, the convicts police themselves. Good luck with all that.

Edited by Johnny1: I don't know if your conclusion is valid, but the above paragraph states your point regardless.
 
46-57 months, recommending low end, possible 5k1.1 for further reductions in arbitrary sentencing level of no actual merit (as they are advisory only), and I still can make requests at sentencing.





I'm not worried about prison - I'm worried about you, those left out here... my friends, family, and everyone else that deserves freedom and doesn't have it.


§5K1.1. Substantial Assistance to Authorities (Policy Statement)

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

(a)The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:

(1)the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;

(2)the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;

(3)the nature and extent of the defendant’s assistance;

(4)any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

(5)the timeliness of the defendant’s assistance.


From his plea agreement:

"(g) If the USAO determines, in its sole and
exclusive judgment, that defendant has provided
substantial assistance to law enforcement in the
prosecution or investigation of another person
("substantial assistance"), to move the Court pursuant
to U.S.S.G. § 5K1.1 to impose a sentence below the
sentencing range otherwise dictated by the Sentencing
Guidelines."


Let me again state that I am new to this board, but I am taking information that has been provided by this individual of his own free will.. [It is the policy of this forum not to pass judgment on any actions individuals take to secure their plea agreements. Relating your own experiences is fine, but you're not in the position to decide what's right for anyone else. Thanks--tobala] My own case (Bank Robbery) was initiated by grand jury testimony of three individuals, and absolutely no physical evidence whatsoever.

That's all I got.
 
Now that the Obama administration is in place and the Justice Department falls within the Executive branch, have you tried appealing to new DOJ officials or somebody further up the Executive branch who may be in support of more moderate drug policies and be more sympathetic to your case? Perhaps your case would present an immediate opportunity to re-examine our our failed drug enforcement policies and act as the catalyst to begin making some long overdue drug policy change. Good Luck!
 
BongHaus;
I get some idea of what you're trying to say, despite the moderation attempts, and, if it pleases you, I'd like to share my side of things...

As far as I'm concerned, people should be able to express their feelings - even if that does cast a negative light upon myself, and force people to question things again. My life is fully subject to review. I'm not perfect, and I've not claimed to be.
I know what I've done, and I'd certainly do things differently - however my mentality remains the same.
You percieve me as a threat to drug users/dealers as I recieved a 5K1.1 for "substantial assistance" to the government's case.
The assistance I gave was simply answering the questions put to me immediately after my arrest after having been denied my right to an attorney...
After being shown video tape of the deals made with the informant.
After having seen the warrants and written statements made by others arrested in the conspiracy that were picked up prior to myself on the same charges.

I didn't know what set of rules we were playing by, and was in fear for my life. I was placed under duress, confronted with irrefutable evidence, and told I had no right to an attorney. Should I have said anything? Absolutely not.
However two thoughts were going through my mind at the time;
1) I can't have an attorney, everything I know about the law and the system is wrong... They can do anything they want to me and there is no way for me to resist.
This drove up the fear levels and made me less conscious of my actions.
2) If I am correct in my understandings of the law, having been denied my request for an attorney, any information received from this point forward will not be admissible in court.

Both those are serious things to consider when condemning me - for #2 was well prevalent in my mind.
Answering a few questions at the time seemed like the least harmful path, and one, that if taken under duress, could be corrected via legal arguments forcing the information buried after the fact. Not cooperating could have led to physical violence immediately.
I chose my actions carefully, requested an attorney (again, see previous posts in this thread asking about this very thing), and when denied one, cooperated fully because I didn't know what was going on - my view of how the world works had shattered and I wasn't prepared to pick up the pieces while held by these people with guns, willing to shoot me for having provided something to someone at their request, with their readily available compensation for services I had rendered.
I was in the hands of criminals and remained saw two ways out - I chose the path I deemed to be that of least consequence for the long term.

Great emphasis has been placed on my cooperation WITHOUT an attorney. If I had not cooperated then, but cooperated at an identical level later, the 5K1 would not provide much of an assistance to my sentencing.
Did others suffer because of this? Apparently so - or the 5K1 wouldn't be as great as it is (though I believe that the bigger part is the realization that myself and my investor were just getting started and had conspiracy charges far in excess of our sales level tacked on due to other parties that were arrested that we did not deal with. This is more a fault of the way the sentencing guidelines work than a fault of myself leading to the detrimental effects upon others, as well as the lack of an attorney - and the fact that I have, in open court, challenged that I did request an attorney prior to questioning, thereby threatening the prosecutor's case against both myself and my co-defendants, as burden of proof is then upon them to show that the information was received LAWFULLY - other than at my questioning.)

After getting out on bail, I did nothing to further assist the government.
I was conned into going to the proffer session by my attorney, against my will, and without having been strong enough to stand up for what I wanted (see previous posts in this thread...). At that point, I could provide no further assistance because everyone I had dealt with - my supplier and investor - had been arrested (both before I was, again leaving me with few options as evidence of the arrests was presented to me before I began answering questions).

So feel free to challenge me.
Anything I did that made things harder on any of my friends I most sincerely regret.
As for my mentality, I hold that government remains the criminal aggressor in this (and all other drug related) situation(s).
I maintain that property rights trump the privilege to regulate interstate commerce.
I stand strong in my belief that NOTHING I, nor my co-defendants did pertaining to the drug charges was, in fact of CONSTITUTIONAL LAW, criminal at all.
As such, any information about dealing drugs that was given by myself to any authority figure was nothing more than mentioning something of inconsequential fact...

I equate any such information to that of me telling someone that my neighbor dyed her hair.
It may be something she doesn't want EVERYONE to know about, but it doesn't matter if they know or not - no harm will come to her because of that knowledge.

I'll challenge you, BongHaus, read this whole thread, learn my position on the drug laws, and then tell me if you still believe I've willingly handed over someone to the "authorities" in order to save myself.

Having learned what I know now, it is certain that information I gave up during questioning cemented a case that may have otherwise fallen apart.
From my perspective at the time, this was not the way things were. In my mind, the case was closed - and I was the last member of the conspiracy to be brought in. I was the last victim, and assuredly, as the physical evidence was presented to me prior to me even saying a word, there was no harm that could come from my input.
I know, now, that this mentality was intentionally put into my head to convince me that talking would be the best course of action.
I know, now, that having talked I probably did solidify the case against my supplier - even though she had already been arrested prior to myself.

Knowing these things now does make me wish I had behaved differently at the time, but the past is in the past and I cannot change it.
I can only echo more strongly the position that you should NEVER answer questions by police for ANY REASON at ANY TIME without an attorney present.
Having made that mistake, I can attest to the truth behind that assertion.

I had never been arrested before. I still had a lot of faith in the system. That faith is gone now - and I ask that if you fault me for possessing that faith that you recognize that I am not the same person that cooperated in full faith that justice would right things.
I cannot undo the past, but I can take responsibility for my actions.

Any suffering caused by my cooperation can only be undone by persisting in my argument against the laws themselves.
Time served can never be un-served, and that is something I cannot correct.
I can, however, work to stop the criminals from victimizing persons exercising their unalienable rights to property - to the detriment of no one but, perhaps, themselves.

I can work to stop those same criminals from further harming my friends (and countrymen... and for that matter, other people around the world...) by exposing their crimes for what they are.

But if you feel that I am, in any way, not morally suited to such a task, I apologize.
Even so, I ask that you not hinder my attempts in any way, as I am but a person with flaws - as all people are, but my aims, though possibly set too high, are beyond reproach.
~K
 
Its nothing personal.

Estimates say up to 35% of Federal defendants assist.

All I can offer you in a positive way is that you curtail your exposure to the details of your situation now .. You will be asked very early in your bid to provide paperwork on your case ( PSI, Judgement & Commitment, sentencing minutes) to determine whether you will be able to 'walk the yard'...I understand you thought you were doing what you were supposed to do.

Good Luck, guy.
 
Its nothing personal.

Estimates say up to 35% of Federal defendants assist.

All I can offer you in a positive way is that you curtail your exposure to the details of your situation now .. You will be asked very early in your bid to provide paperwork on your case ( PSI, Judgement & Commitment, sentencing minutes) to determine whether you will be able to 'walk the yard'...I understand you thought you were doing what you were supposed to do.

Good Luck, guy.


Thanks for the advice.
I understand that the presence of a 5k1 doesn't look good, and that without knowing the specifics of the case, it can cause labels to be easily applied that shouldn't be.

While I agree that for my own benefit certain things (such as the 5k's existence) shouldn't be made public knowledge, I still believe that full disclosure is the best way to avoid circumstantial consequences that I'm unprepared for... Particularly when tossing around the idea of public disclosure and requests for assistance.

I just want to go back one more time and reiterate that I was denied an attorney before answering any questions.
It was less a matter of "doing what I was supposed to do" and more a matter of, "Even if this is wrong, I can correct it later."
Unfortunately public defenders are not the best at doing your will, particularly when it will make their petitions for a more lenient sentence more difficult.
In fact, anything you may do that is any sort of a gamble on your part, will be forbidden by any public defender - to the point where they will QUIT representing you before you try to do it.

And then you end up filing motions through the prosecutor's office, because you are left without assistance of counsel - and cannot file motions on your own because the court mandates that all motions be filed electronically...
And you - as a non-attorney - cannot access the electronic filing system.

Of course - at that time... as more than a year has passed - those that you were working to protect from your inadmissible statements have already worked out plea agreements, rendering the information obsolete - so your contribution is meaningless, and its revocation at this point in time would accomplish nothing.
But that's how the game is played...
 
Slightly off topic, but BongHaus - is the way it works that other inmates demand to see your papers and if you refuse to show them, you are labelled a 'snitch' or 'child molester' and obviously if you shown them you are labelled according to what the papers indicate you said/did?
 
Slightly off topic, but BongHaus - is the way it works that other inmates demand to see your papers and if you refuse to show them, you are labelled a 'snitch' or 'child molester' and obviously if you shown them you are labelled according to what the papers indicate you said/did?

Generally, once you hit a compound, the inmates from your geographical area (Federal prisoners are issued numbers based on your location, E.G. 55555-067, the '067' being the Middle District of Pennsylvania, where I am from) will approach you and ask basic questions regarding your case. Most often it will be a white guy asking a white guy, black asking black..etc. but once word gets around where you are from, any 067 will want to know your deal. It is pretty easy to figure out what a guy is about in these initial discussions, however, yes, many times paperwork will be exchanged. It eliminates any doubt. Known pedophiles and rats will be 'checked in' to Protective Custody, which is 23 hour lockup. The end result of that will be the BOP transferring that inmate to another facility clear across the country. It isn't always cut and dry like that, some guys will walk for years and years before he true nature of their crime or assistance becomes known....
 
Kalash,

If the ACLU offered $8K of help with procedural matters, you would potentially save yourself all that annoying formatting work. You are already familiar with local rules I expect.

I recommend in my lay capacity that you keep your briefs "brief" and not engage in repetitive arguments.

Go to a tailor and get yourself measured for suits to wear going forward if you have not already. Get any dental, medical, insurance, etc. work done NOW.

The fact that you were not Mirandized in the form we all see on television court and cop shows is not a defense, IMO. If you or someone can pull up the P&As to support or refute my opinion, it may be helpful.

You will need to assemble binders with all pleadings filed in both directions. Do so in a way that is intuitive to you and have true copies for the judge. Stay organized in your papers and you will become more organized in your thoughts. You are not resigning yourself to the martyrdom of appeal; instead you are preparing for trial. There is no such thing as a lost cause and, whatever happens, getting and staying organized places you at a significant advantage over being unprepared.

Keep the faith. It's not over yet.
 
Kalash,

If the ACLU offered $8K of help with procedural matters, you would potentially save yourself all that annoying formatting work. You are already familiar with local rules I expect.

I recommend in my lay capacity that you keep your briefs "brief" and not engage in repetitive arguments.

Go to a tailor and get yourself measured for suits to wear going forward if you have not already. Get any dental, medical, insurance, etc. work done NOW.

The fact that you were not Mirandized in the form we all see on television court and cop shows is not a defense, IMO. If you or someone can pull up the P&As to support or refute my opinion, it may be helpful.

You will need to assemble binders with all pleadings filed in both directions. Do so in a way that is intuitive to you and have true copies for the judge. Stay organized in your papers and you will become more organized in your thoughts. You are not resigning yourself to the martyrdom of appeal; instead you are preparing for trial. There is no such thing as a lost cause and, whatever happens, getting and staying organized places you at a significant advantage over being unprepared.

Keep the faith. It's not over yet.

The problem is that they're not offering.
Yeah - I definitely need to get more organized.
I keep focusing on sentencing - and what's going to happen there, and really, it doesn't matter. You're right - I'm preparing for trial...
And I'm not exactly the defendant in this case.
Thanks.
Local rules - everything must be filed electronically. My attorney won't (refused to myself and the court) file my motions.
I emailed them to the prosecutor and filed through the opposition's office. Local rules? Cooperate with your enemy, and have them work for you ;)

On the other note - I was given - orally and written - the Miranda warning.
The problem was AFTER the Miranda was given, I asked for a phone call and was told, "This is federal. You don't get a phone call."
I asked, "Not even to get an attorney?"
And Agent [----]replied, "No."

That's my issue. I didn't answer a thing until after that point.
Once my request for an attorney was denied, I cooperated.
But again - that's not an issue that would have any bearing upon my case - and no real effect upon my co-defendants at this point in time, as those affected (so far as I know) have plead guilty rendering the information received irrelevant.
It only lends credence to my claim that Government is empowering people to act above the law - it isn't a defense, but it shows continuing criminal intent on part of the Government's agents.
 
List of important links (for my reference, if nothing else...)

http://www.ca9.uscourts.gov/opencase/Open_a_Case_ProSe/prose.caseopening.12-08.htm - How to open an appellate case with the 9th circuit, including an overview of what the brief should include.

http://www.ca9.uscourts.gov./rules/FRAP/Rules_TOC.htm - Federal Rules of Appellate Procedure + 9th circuit specifics

https://pacer.psc.uscourts.gov/psco/cgi-bin/cmecf/ea-menu.pl - Case management/Electronic Case Files... Public access, requires registration (0.08 per page charge for information retrieved through Pacer) - Registered and ready to use for e-filing of the appeal brief and reply.

How to write an appellate brief. ;) http://raymondpward.typepad.com/newlegalwriter/files/HowToWriteAnAppellateBrief.pdf

How to write a GOOD appellate brief; http://www.appellate.net/articles/gdaplbrf799.asp

Motion for appointment of counsel...
In direct criminal appeals, if you have in forma pauperis status or can show that you are indigent, you are entitled to appointed counsel. However, you MUST ASK that counsel be appointed by filing a “Motion for Appointment of Counsel.”
---Referenced in the pro-se packet from the court's website.
The suggestion for getting assistance with formatting and rule following will be taken care of here, provided the court appoints me assistance of counsel for those purposes (as I will make clear is the extent of my request for counsel, and the sole purpose of their appointment)...

But this note makes me hesitate...
NOTE: Because you are appearing without the help of an attorney, you may file the informal brief included in this package. If you choose instead to file your own brief, it must meet all of the requirements of the federal rules, and must include the certificate of compliance required by 9th Cir. R. 32-1. If it does not, we will ask you to correct it, which will delay the decision in your case. If you use the attached informal brief form, however, your opening and reply briefs need not comply with the technical requirements of the Rules. See 9th Cir. R. 28-1(b), 32-5. You may add additional pages to the form, up to a total of 40 double-spaced pages.

That's tempting.
This bit is interesting as well...
Any motions filed while your appeal is pending must clearly identify the relief sought and the legal grounds for such relief. You must file an original and 4 copies of any motion and you must serve a copy of the motion on all counsel for opposing parties and file a certificate of service saying you have done so. See 9th Cir. R. 27-1. If you are requesting emergency relief you must FIRST call the Motions Unit of the Court at (415) 355-8020. The attorney on duty will help you figure out the best way to get your motion to the Court.
Relief sought; removal from the clutches of the continuing criminal conspiracy imposed and carried out in the name of the United States by its officials acting outside the capacity of their office - in violation of Title 18 Chapter 13 Sections 242 and 242, and Chapter 95 section 1951 of the U.S. Code.

I think that's enough research for tonight. I'm going to bed.
 
OP,

It sounds like you have substantial time ahead of you, but that you can make use of it, survive, and live a happy life. These are things it might be wise to focus on, and invest in.

Regarding your constitutional arguments... trade in drugs affects interstate commerce, and therefore it may be regulated by Congress under the interstate commerce clause. It does not matter whether the drugs in question were ever intended for interstate commerce, whether it would make economic sense for them to enter interstate commerce, etc.

I would caution you about becoming too emotionally invested in these constitutional arguments. If you agree that these are legal arguments, and that the law is a complex subject, then you should also agree that you might be incorrect in your arguments. Is that fair? Can we also agree that if someone lacks legal training, and were forced to learn about the law in his particular case under pressure, with limited access to resources, that he might be more likely to be in error in his legal arguments?

Sometimes, particularly when we're under a lot of emotional pressure, we can become extremely invested in an argument that serves our interests. If your attorney thinks you have nothing to lose by proceeding with the appeal, then do so. But beware of completely losing objectivity about this. Even if you have nothing to lose legally by proceeding with the appeal, intense emotional investment in these arguments may divert you from putting your energies towards more fruitful activities, keep you from dealing with various tasks and realities, etc.

Also... such an investment may blind you to the realities, effects, and consequences of the crimes for which you have been convicted. That, in turn, may have ramifications for parole, for acceptance and adjustment to a new set of circumstances, and so forth.
 
OP,

It sounds like you have substantial time ahead of you, but that you can make use of it, survive, and live a happy life. These are things it might be wise to focus on, and invest in.

Regarding your constitutional arguments... trade in drugs affects interstate commerce, and therefore it may be regulated by Congress under the interstate commerce clause. It does not matter whether the drugs in question were ever intended for interstate commerce, whether it would make economic sense for them to enter interstate commerce, etc.

Why is this important?
Schick v. U.S. makes it clear that Congressional powers must yield to the rights of the people. Commerce? Fine.
Prohibiting the exercise of one's property rights for the purposes of regulating commerce?
Exceeds their authority and is invalid law.

Step outside the box. There's more to this than is presented in past arguments. There is no way to overcome the interstate commerce clause by challenging it or its scope.
The only way to raise this issue is to attack it from a different angle - not one of "not interstate commerce - not applicable to my conduct" but
"Irrelevant if it's commerce or not, as it is the exercise of a fundamental right to property - without consent of Government."

Deprivation of rights is a serious crime. Government cannot commit crime in the lawful exercise of its privileged powers.

I find this point simple - and have a hard time understanding why it is insufficient.
Is there a case you know of where this has been presented in this manner? I haven't found one.

I would caution you about becoming too emotionally invested in these constitutional arguments. If you agree that these are legal arguments, and that the law is a complex subject, then you should also agree that you might be incorrect in your arguments. Is that fair? Can we also agree that if someone lacks legal training, and were forced to learn about the law in his particular case under pressure, with limited access to resources, that he might be more likely to be in error in his legal arguments?

Absolutely I may be in error.
But I've yet to hear HOW I've errored.
While I rely heavily upon the Constitution to question the legal authority of the CSA, and the Constitution no longer seems to hold sway over government, that doesn't mean I'm going to give up on its supremacy - as that is, still, the law of the land.

There isn't much emotion to consider in light of the Judge's opinion.
He makes it very clear that there are no property rights he is willing to recognize that are not subjected to absolute control by government.
Any "right" that can be taken and granted at whim is no right at all, but a mere privilege. If the Constitution still has any meaning, the judge is clearly in error.

Sometimes, particularly when we're under a lot of emotional pressure, we can become extremely invested in an argument that serves our interests. If your attorney thinks you have nothing to lose by proceeding with the appeal, then do so. But beware of completely losing objectivity about this. Even if you have nothing to lose legally by proceeding with the appeal, intense emotional investment in these arguments may divert you from putting your energies towards more fruitful activities, keep you from dealing with various tasks and realities, etc.

Various tasks and realities? What are you on about?
My reality is that I'm in a self-sustaining existence with little excess and little worth keeping.
The only reality I'm facing is imprisonment for a period of ~2 years (maybe a little more or a little less).
What is important right now?
Aside from overturning these unjust laws?

How's this for objectivity - if I don't get the laws over turned, government will continue to treat the rights of the people as though they are mere privileges derived from a governmental source.
If I don't get the laws overturned, no RIGHT to property will exist in America - there will be no land of the free - as without any right to property, you have no right to the fruits of your labor, nor of your labor itself.

It matters little if I'm in prison or out if I am nothing more than a slave to government - fully subject to their whims, and only given the privileges they're willing to grant me (and/or charge me a licensing fee for).

Also... such an investment may blind you to the realities, effects, and consequences of the crimes for which you have been convicted. That, in turn, may have ramifications for parole, for acceptance and adjustment to a new set of circumstances, and so forth.

Realities - false information was given to Government to cause them to make a determination that MDMA should be scheduled. (It's being used recreationally! OHS NOES!!!)
According to the Administrative law judge, MDMA could not LEGALLY be placed higher than schedule III.
Scientific fact disproves the Government's position.
The current (and ongoing) MAPS studies have disproved them even further.
The sentencing guidelines are based upon Dr. Ricaurte's retracted "meth" research that showed "mdmd puts holes in the brain" that was either falsified or so inaccurate that it required a published retraction - AFTER the laws were changed to incorporate this data.

The effects and consequences of "drug possession and distribution" are nothing like Government claims.
Yes, while there is a black market, there will be consequences of the black market activities.
The criminalization of the mere possession - and non-violent re-distribution of drugs - is akin to criminalizing "being in a bank during an armed robbery."
The criminalization of drug POSSESSION alone is akin to criminalizing the possession of ANY property on the assumption that "theft cannot exist if there is nothing to steal" - and that this prohibition prevents all theft, as no one can steal what is not being possessed.
The very act of criminalizing drugs IS legislated theft. It cannot be done - as theft (depriving someone of their property, its use, or sale) is not a RIGHT of any person. The collective powers of government cannot exceed the rights of any individual. If there is, as the court proclaims, "no right to control MDMA" then government cannot derive powers from a right that does not exist.

In this case, Government claims that no criminal activity is required to be convicted of a crime, and no consequences of these activities must exist to punish for the hypothetical and conjectural consequences that may or may not come to pass.
The nature of the consequences is not due to drug possession or distribution, but rather the criminal creation of the black market where rights are not protected BY LAW - and social disorder (anarchy - personal protection of personal property through whatever means necessary) is a product of the criminalization of the exercise of one's property rights...
Not a product of the exercise of those rights themselves.

But what do I know? I'm just a drug dealer.
Surely no one else believes this.
Oh... wait... have you heard about http://leap.cc ?
(Sorry. Sarcasm runs naturally through my veins.)
I've ASKED for the consequences of my actions - the government produced none.
The judge - in his denial of my motion - came up with hypothetical harms to interstate commerce, not to individual people or their rights.
Interstate commerce, while being regulated by (privileged) Congress, is not a RIGHT of government which can be violated (crime against the U.S.)
Even if it WERE a Right of Government (which simply does not exist in America), the hypothetical and conjectural nature of the plaitiff's claims fails to provide standing for a civil claim...
A criminal claim - which has higher standards than civil claims - obviously cannot be made with such arguments.

But again - what do I know? Obviously an attorney would know how a privilege of government could be raised against the right of a person and prevail.
It's a pity I'm not an attorney and I don't understand how this works. :|
 
Oh god you're the man. I wish I could help somehow (I'm no lawyer I wish I was just to help out your cause). I have no real input but admiration for you and your cause. Almost brings a tear to my eye I fucking commend you. You're now my hero. Too many people wish for this kind of thing, but only sit back and wait for someone else to do the dirty work (I'm guilty too) . I believe you're intelligent enough to make progress.


I'm glad you got a deal for a lighter sentence and the chance to appeal( I don't feel guilty about encouraging you). That is definitely progress if nothing else you atleast fought (and won) for your right to be heard. The law is run by a bunch of fucking bullies. Ugh its so frustrating that your views are not the majority or won't even be listened to by the majority when you are so clearly more intelligent then the majority. Someone told me that the founding fathers (or one/some of them) said we need a revolution every 100 years and we are well over do.

My birthday is may 4th and I shall use my birthday wish for you and your trial.(Yeah I'm a worthless idiot sorry). My birth seems so insignificant compared to your cause *sigh*. YOU FUCKING ROCK THUMBS UP<3
 
Why is this important?
Schick v. U.S. makes it clear that Congressional powers must yield to the rights of the people. Commerce? Fine.
Prohibiting the exercise of one's property rights for the purposes of regulating commerce?
Exceeds their authority and is invalid law.

The people and their representatives ratified and approved the US Constitution. The US Constitution gives Congress the power to regulate interstate commerce. The US Constitution further gives Congress the power to enact all laws necessary and proper to regulating interstate commerce. Therefore the US Congress has the power to regulate property rights (and obviously the way you might acquire or dispose of property) so long as such regulation is substantially connected to interstate commerce.

Trade in drugs affects interstate commerce; therefore regulation of the drug trade is within the power of Congress, as granted by the US Constitution, as approved by the people.

Step outside the box. There's more to this than is presented in past arguments. There is no way to overcome the interstate commerce clause by challenging it or its scope.
The only way to raise this issue is to attack it from a different angle - not one of "not interstate commerce - not applicable to my conduct" but
"Irrelevant if it's commerce or not, as it is the exercise of a fundamental right to property - without consent of Government."

Unfortunately there is no recognized fundamental right of property that places it beyond the ability of government to regulate. The ability of the federal government to regulate property in the course of regulating interstate is, however, well recognized.

I find this point simple - and have a hard time understanding why it is insufficient.
Is there a case you know of where this has been presented in this manner? I haven't found one.

Well, what do you think of what I said above?

There isn't much emotion to consider in light of the Judge's opinion.
He makes it very clear that there are no property rights he is willing to recognize that are not subjected to absolute control by government.
Any "right" that can be taken and granted at whim is no right at all, but a mere privilege. If the Constitution still has any meaning, the judge is clearly in error.

I think the judge is right. Indeed, the Constitution limits the government from actually taking your property only insofar as the government must provide due compensation and must do so for a lawful purpose.

Various tasks and realities? What are you on about?
My reality is that I'm in a self-sustaining existence with little excess and little worth keeping.
The only reality I'm facing is imprisonment for a period of ~2 years (maybe a little more or a little less).
What is important right now?
Aside from overturning these unjust laws?

Why not start preparing for what time will be like while in prison? Consider career options following your time, and consider what you can do while in prison to further those options. If you find this appeal pleasurable to work on, then by all means, continue to do so. I'd simply be careful about elevating it to the level of a grand, self-immolating crusade.

How's this for objectivity - if I don't get the laws over turned, government will continue to treat the rights of the people as though they are mere privileges derived from a governmental source.
If I don't get the laws overturned, no RIGHT to property will exist in America - there will be no land of the free - as without any right to property, you have no right to the fruits of your labor, nor of your labor itself.

The government, whether in the guise of the local government or the federal government, has been regulating property rights since property and government first existed. It has always been thus in this country, and in every country. I don't view this as a bad thing, since there ARE limitations on how government may seize property. But those limitations aren't applicable in your case.

It matters little if I'm in prison or out if I am nothing more than a slave to government - fully subject to their whims, and only given the privileges they're willing to grant me (and/or charge me a licensing fee for).

Oh. Can government buy and sell you? Determine what you read and what you say? No? Then you're not a slave.

The criminalization of the mere possession - and non-violent re-distribution of drugs - is akin to criminalizing "being in a bank during an armed robbery."
The criminalization of drug POSSESSION alone is akin to criminalizing the possession of ANY property on the assumption that "theft cannot exist if there is nothing to steal" - and that this prohibition prevents all theft, as no one can steal what is not being possessed.

I'm sorry, but I don't follow any of this. Your analogy seems to assume that selling illegal drugs is the equivalent, in some sense, of going to a bank. Both are economic activities, I suppose, but the analogy ends there.

Yes, government can prohibit the possession of certain types of property. For example, the government prohibits you from possessing a nuclear weapon. Does this portend an end to property? Of course not. Neither does the prohibition of possession of certain drugs.

The very act of criminalizing drugs IS legislated theft. It cannot be done - as theft (depriving someone of their property, its use, or sale) is not a RIGHT of any person. The collective powers of government cannot exceed the rights of any individual. If there is, as the court proclaims, "no right to control MDMA" then government cannot derive powers from a right that does not exist.

So you want to argue that MDMA is wrongly scheduled? Okay. I frankly have no idea whether it is or is not. Even if true, I frankly don't think this obviates the responsibility of the person who chose to distribute MDMA. I'm fine with acts of civil disobedience, but I don't think your actions fall under the rubric of civil obedience. If you disagree with the law, you have means available to lawfully petition and campaign for a change in that law.

You also, legally, need to argue more than simply that MDMA is scheduled improperly. You need to say whether and why the wrongful scheduling of MDMA means that your conviction or sentence is no longer valid.

I've ASKED for the consequences of my actions - the government produced none.
The judge - in his denial of my motion - came up with hypothetical harms to interstate commerce, not to individual people or their rights.
Interstate commerce, while being regulated by (privileged) Congress, is not a RIGHT of government which can be violated (crime against the U.S.)
Even if it WERE a Right of Government (which simply does not exist in America), the hypothetical and conjectural nature of the plaitiff's claims fails to provide standing for a civil claim...

The judge was explaining why Congress has the power under the Constitution to regulate drugs (they substantially affect interstate commerce). Congress chose to do so here, in part, by using criminal law. You broke that law, in the jurisdiction of the United States. That's all the government needs to prosecute you. This isn't a civil lawsuit, and questions of standing really aren't relevant here.

By the realities of the crime, I mean the following: you knew that what you were doing was illegal, and you did it anyway; you did not do so out of a moral outrage against the law, or in an effort to change the law, but simply to make money; the illegal drug trade contributes to huge amounts of violence and misery in this country; you were a part of the illegal drug trade.

If you disagree with the drug laws, that's fine. I disagree with a lot of it too. But don't confuse that disagreement with the consequences of your acts given that drug laws are still on the books, and given that the trade in them still has some pretty horrific consequences.
 
Top