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  #1  
Old 09-22-2002, 09:33 AM
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I sent my son's appeal attorney (FPD) a request to add a supplementary brief. Now she is threatening to remove herself because she believes we think she is ineffective. She pratically told him to hire someone. Problem: no money.
My son is serving time in federal. Question of legal procedure?? 2 federal search warrants upon affidavits , criminal warrant, federal arrest warrant, case agent all done and received by city police officers with no federal involvement except as city officer said the AUSA agreed to prosecute. No Federal request for any warrants, no Federal officers involved in any action, until completion of all and then turned over to Federal. I can find no case law regarding legality because there is always fed involvement...not case here. Deadline approaching fast!
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Old 09-22-2002, 09:44 AM
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JohnsMom, I'm not sure about this, but I'd recommend you to get in touch with our member KConnor. He's great at the legal reseearch and he might be able to help you with this!

Good luck!

Pamela
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Old 09-22-2002, 09:08 PM
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Johnsmom, I'm not a lawyer, & I don't really understand what your looking for from your post. My first advise would be to try to clean up things with his current lawyer, then try & get a new one. If all else fails he will have to go pro per, pro se. I can get you some information, as Pamela says I do research, but other than that, I'm not sure what I can do. Please e-mail me at Kconnor56@aol.com or continue to post here, & I'll be happy to help in any way I can.-------Ken
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Old 09-22-2002, 09:14 PM
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JohnsMom,
I too am having a hard time understanding the post. Lets start with the Attorney; why does she believe you all think she is ineffective? Was any motion or complaint filed by you or anyone relating to you in regards to her conduct? OR is she just trying to skate on the whole thing? Was she appointed by a judge for the appeal?
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Old 09-23-2002, 01:57 AM
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I replied to Kconner56 via email. I will try to make more sense. We asked her to file a supplemental brief concerning the Rule 41 issue. She then placed a call to him asking if he thought her to be ineffective. He did ask, if she would not present it to the court, how hecould get it before the court. There was no mention of hiring an attorney or anything. She also told him that the government was bringing in an AUSA from Washington to represent the government. Their brief is due Oct. 9 I think she is trying to skate, court appointed. She has a fairly good appeal going but he thought the Rule 41 violation issue is a good one and wanted it appealed.
Rule 41 is Federal and all s/wetc were Federal but no Federal officers were involved until after he was arrested...even that warrant was issued to US Marshal but executed by city officers.
I am trying to find cases of this ever being done, I have found a few but there was always federal involvement. I hope this makes it just a bit clearer. Thanks for all interest.
Brenda
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Old 09-23-2002, 08:14 AM
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Brenda, omg...I thought this was you! It's been too long! Can you explain what Rule 41 is, even briefly?...and I know that you said the deadline was approaching, can you have the attorney file an extension? I would think if you do not have everything that you need or want, this would be the best alternative...

Let's stay in touch!

Pamela
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Old 09-23-2002, 05:13 PM
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Yes, it is me Pamela. Federal Rules of Criminal Procedure
Rule 41 deals with guidelines for applying for s/w, executing warrants. It basically deals with Federal. In my son's case, it was all Federal but no Federal Involvement. His attorney has already used her extension and he governmen has used theirs. We were hoping this avenue would be addressed but I just received a message from ask an lawyer and was told this is not a question that has been addressed and they were unable to answer. If you find any info, it will greatly be appreciated.
I hope everything is going well for you.
Brenda
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Old 09-23-2002, 05:22 PM
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Brenda what exactly are you searching for? Whether federal authority can get involved after the fact?...That is what I am reading and understanding here.

Have you tried Nolo? This is the url address:

http://www.nolo.com/lawcenter/statute/federal.cfm

see if that helps in you search...
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Old 09-23-2002, 07:07 PM
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Pamela,

From what I understand is all the warrents, for search & seizure, probabal cause etc was all done at the federal level, but no federal agents took an active role in the execution of the warrents. I'm comming up blank, but I have some more digging to do. I also advised her to try & sooth the appeals lawyers feelings. ---------Ken
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Old 09-24-2002, 01:47 AM
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I am trying to sooth the attorney's feelings. Thanks Ken. You have it ...everything was done on a federal level but federal did not request the warrant as required by 41. Everything was applied for by a city officer & granted with "AND any civil officers of the US" or "AND any Federal Law Enforcement Officer". The arrest warrant was directed to US Marshal but the city officer also executed that with no federal involvement. And the list goes on. Thanks for yours and Pamela's help and support.
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Old 09-24-2002, 03:42 AM
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Johnsmom,

I hope your sons lawyer gets her panties on straight & gets back on the job, to threaten to walk out at such a critical time is BS. She needs to lighten up on the caffeine. All you were trying to do is help, & it was a reasonable request. I'm glad you took the high ground on this. This case has me intrigued if for nothing else, the lack of info on similiar cases. I will have a couple of hours to devote to this on Tues 9-24 & I'm hoping something will point me in some direction. I will let you know what I find out. Take care-------Ken

Also Pamela is excelent at research too, so she may find something too. I'm sure between the two of us something will come up
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Old 09-24-2002, 05:42 PM
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You are great, I already knew Pamela was good. I am glad it has intrigued you. Maybe between all of us, something good will happen. Thanks
Brenda
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Old 09-24-2002, 09:35 PM
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Brenda,

I spent almost two hours searching every thing I could & couldn't find anything relating to if federal officers have to serve federal warrants or if they can be used by local or state authorities. A big zilch. I'm sorry but I guess it just shows this isn't something that has been dealt with. If you have some other direction to point me in I would appriciate it. I will continue to look, but I'm not too optimistic. Sorry----Ken
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Old 09-24-2002, 11:06 PM
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Brenda,
Can I ask the attorney's name? I pm'd you tonight. I live 15-20 minutes from Waseca. Can I help?
KMEG (CJ)
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Old 09-25-2002, 05:22 AM
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Ken, the same luck I have been having. We found one case called US v Schuster, M.D. 777F 2d 264 (5th Cir. 1985) but he died before a decision was made. In all the cases we have found there is always some Federal involvement somewhere. It has never been addressed as far as I can tell. Thanks for looking. i know my son has other issues the attorney would not appeal that he may want to approach. I will talk to him and get back to you. Thanks,
Brenda
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Old 09-25-2002, 05:25 AM
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Kmeg, I got your note. I will email you later. His FPD is in Texas, they sent him to Waseca. Thanks for your concern.
Brenda
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Old 09-28-2002, 09:33 AM
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I have read your original posting and I will research the matter myself.

Thanks,
AK
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Old 09-28-2002, 10:19 AM
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Lightbulb Here is What I Found for Appeal Help Fast

Hello,

I wanted to give you my updates by the minute. I can't give you any relevant cases to your topic just yet. But I do have some law for you which in my opinion is even better. I think this is the road that your appeals lawyer is trying to go down. So read this and guide her in the right direction! Good Luck!

TITLE 18 > PART II > CHAPTER 205 > Sec. 3107.
Sec. 3107. - Service of warrants and seizures by Federal Bureau of Investigation

The Director, Associate Director, Assistant to the Director, Assistant Directors, agents, and inspectors of the Federal Bureau of Investigation of the Department of Justice are empowered to make seizures under warrant for violation of the laws of the United States


TITLE 18 > PART II > CHAPTER 205 > Sec. 3106. Officer authorized to serve search warrant Prev
Sec. 3106. Officer authorized to serve search warrant - Rule

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Officer to whom search warrant shall be directed, Rule 41(c).

Here is what Rule 41(c) says:

(c) Issuance and Contents.

(1) Warrant Upon Affidavit.

A warrant other than a warrant upon oral testimony under paragraph (2) of this subdivision shall issue only on an affidavit or affidavits sworn to before the federal magistrate judge or state judge and establishing the grounds for issuing the warrant. If the federal magistrate judge or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, that magistrate judge or state judge shall issue a warrant identifying the property or person to be seized and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate judge or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses the affiant may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property or person specified. The warrant shall be served in the daytime , unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It shall designate a federal magistrate judge to whom it shall be returned.


Based on the information that I have gather so far, it doesn't seem like the state should have played any role in this.

Here is the text that you need to focus on. It seem like its rather board to me.

The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States.

This is what concerns me, any peace officer with local, county or state authority can assist in enforcing the law. It's consider to be a "professional courtesy" not to intrude on another officer's case. But any officer with relevant facts of the case can pick up in any aspect of the case. Then the most damaging is "authorized by the President of the United States." The state might take this and run with it. Even though a state officer isn't under the direct command of the President, there is the little thing call "Seperation of Powers" in our Constitution that provides a potential loop hole for the state. Make sure you do your homework. I will give you more information on "Seperation of Powers." I am just trying to be objective and argue both sides.

The officer(s) who sought the warrant would have to play a main role in how, when and in what manner the warrants is issued. As you can see there are several stipulations that AUTOMATICALLY go with serving a federal search warrant. I don't know the background of the case, but my gut tells me that there is a lot of useful information in this text for you and your son. The other thing is, I hope this was a search warrant that we are talking about. Rules for an arrest warrant would change the situation a little bit. Let me know.

Thanks,
Angellee

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Old 09-28-2002, 10:55 AM
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Angelee,

Great work. I was looking for cases that had to deal with this, so I could read a courts opinion on the matter, because as you point out the wording used in rule 41 isn't definative, & with a lose interpretation could mean different things. I agree with you that it seems to me that the feds would have to at least be involved in the serving of the warrent. I understand that an FBI agent in the middle of nowhere may have to use local authorities to serve a warrent, & he maybe by himself, & there maybe 100 local officers involved, but at least you have a federal officer serving a federal warrent. I know arrest warrents can be served by any law enforcement officer, but search & seizure is I believe a different animal.

Anyway, great research, & analysis. Looking forward to any thing else you may find, & I'll post what ever I come up with.-----Ken
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Old 09-28-2002, 12:00 PM
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Lightbulb Seperation of Powers or Reserved Powers

I found it, but there was too much information to post. So I have placed the link to the webpage here.

Note: I hope this isn't considered SPAMMING. If so I apologize in ADVANCE. Just PM at let me know that it is and I won't do it again. Thanks... David!

http://caselaw.lp.findlaw.com/data/c...nt10/02.html#4


Read the following paragraphs

Federal Policing Powers and Federal Regulations Affecting State Activities and Instrumentalities

When you read this don't read in terms of criminal cases just read for the understanding of the paragraph content. At lot of times in doing legal research we automatically start looking for cases to site. No need here just read and understand and take what information you can. If you are not sure about what you should be extracting let me know and I will tell you what's relevant to your case situation.

This is one thing that sticks out:

''there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner.''

Another thing that sticks out:

Tenth Amendment was the prohibition here, not that it directly interdicted federal power because power which is delegated is not reserved, but that it implicitly embodied a policy against impairing the States' integrity or ability to function

The next question is what's in the Ten Amendment Right?

Here's the exact text as it reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Hope this helps.

Thanks,
Angellee
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Old 09-28-2002, 01:44 PM
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Angellee rest assured, your help and assistance is not spamming! Great research to both you and Ken. This one was beyond me! I can't wait till Johnsmom reads this and lets us know what she thinks!

Kmeg: Way to get in here!!

Pamela
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  #22  
Old 09-28-2002, 02:33 PM
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Thank you very much. I appreciate the kind words. I am just here to help in anyway I can. I love giving a way free legal advise. And it just tickles me pink when ordianry people do extraordinary things such as getting one over on "the good ol' boys . Again thanks.

Angellee
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Old 09-28-2002, 09:29 PM
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WOW ya'll are SUPER COOL!!

Ken, could you rename this thread to depick what is being reached? It sure would help down the road, when looking for info.
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Old 09-29-2002, 08:45 AM
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Geee, I did not go on line last night. Some of this I had, a lot I did not. Thanks to all of you for caring so much.
There was no federal officer involved during the search warrant. It is in the court documents "There were no other officers involved"There was no federal officer involved in the 2nd search warrant for the computer discs. Both federal warrants had affidavits done and warrants executed by city police officers. At no time during investigation through arrest warrant, was there a federal officer, although all warrants were federal. Thanks.
Brenda

Angellee...if you are interested, I can send you more info in an email

Pamela & Ken... Thanks for your continued help and support.

Brenda JohnsMom

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Old 09-29-2002, 09:47 AM
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Hello Brenda,

Well it sounds like you got yourself a case. I would begin organizing my information in prepartion for brief to be filed. I don't know what preparation you have gone through with the courts do ensure that this happens but don't forget about the important deadlines. Most of ALL do your homework. I KNOW, I KNOW, I KNOW the state is going to have a whammy of a time with this one if it is presented in a correct, clear, and consistant manner. So take your time and get your ducks lined up in a row before you go shouting "INJUSTICE" up and down the streets. I am here if you need me and I will help in everyway that I can.

Thanks,
AK
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