From the 'Lectric Law Library's Stacks
The law is above the law, you know. -- Dorothy Salisbury Davis
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
UNITED STATES OF AMERICA, )
vs. ) No. CR-95-51-BLG Deft. #4
) No. CR-95-117-BLG Deft. #1
LEROY M. SCHWEITZER, et al )
The above-entitled matter came on for hearing in open court before the HONORABLE RICHARD W. ANDERESON, U.S. Magistrate, on May 30, 1996, commencing at 1:30 P.M.
P R O C E E D I N G S
THE CLERK: The Court has set aside this time to hear the matter of CR- 95-51 and CR-95-117, USA versus LeRoy Schweitzer, the hearing is to declare the case as complex.
THE COURT: Record will show that Mr. Schweitzer is personally present in court along with Mr. Tim Cavan previously asked by the court to serve as standby counsel for the Court's assistance.
THE DEFENDANT: I object. I don't have any counsel at this time. I will not take a bar attorney that has been sworn in with the appellate branch of the supreme Court, Helena, Montana.
And I have said that objection before. And I take exception, because I cannot be forced into a voluntary contract without my consent.
THE COURT: That is all very true, Mr. Schweitzer. We have honored your wishes in that respect up to this point, and you have represented yourself.
Before you continue to do so further in there proceedings, though, I'm going to go ask that you reconsider. Nobody here will deny you the right to represent yourself I want to begin with that assurance.
THE DEFENDANT: There is one condition where I'll take an attorney, and it won't be an attorney, it will be a common law lawyer. And it will be in the Supreme Court, original branch of government, original mode, original jurisdiction, that will be with the clerk and recorder, Yellowstone county or Garfield county or Petroleum or Fergus county, in the original Supreme Court, the highest court in the land. And you can take that as a writ of the supervisors control, where we have control over all other courts. Because I know that I'm a supreme court justice.
THE COURT: Just a moment, Mr. Schweitzer, the only attorney the Court could or would assign to help you and to represent you, would be a member of the Bar of Montana.
THE DEFENDANT: This is a Supreme Court at common law venue. I didn't waive common law venue the last time and I'll say it since I'm here, this is a special appearance only, not general, or not voluntary, and I do not consent to a legislative created nisi prius tribunal.
This is a contract court, and I don't grant venue, therefore, you have no jurisdiction. I have said it before, I say it again, so I get it clear on the record.
THE COURT: It has been very clear on the record, Mr. Schweitzer.
THE DEFENDANT: Thank you,
THE COURT: Now, you and I can get along all right here if you give me the opportunity to speak without interruption, and I'll try to give you the same courtesy.
THE DEFENDANT: Thank you.
THE COURT: If you don't give me that courtesy, I'm going to have you removed.
THE DEFENDANT: Don't even have to get hostile. I told you the other time, you were the one that overstepped your bounds the last time.
THE COURT: Now, can we get along with that understanding and therefore keep you --
THE DEFENDANT: As long as I can make my objections and get it on the record.
THE COURT: You certainly will have that opportunity.
First, let me finish what I was telling you about counsel, then you will have the right to object.
As I was saying, the attorney, any attorney that the court would appoint to represent you, should you accept that, would have to be a member of the Bar of the state of Montana and have to be admitted to practice before this Court.
We'll not attempt to appoint anyone else that doesn't meet those basic qualifications. Mr. Cavan does meet those qualifications.
THE DEFENDANT: No, the only way I would --
THE COURT: You can accept or reject him, of course it's your option. My duty is to be sure, though, that if you reject services of counsel, that you do so, No. 1, knowingly, that you intelligently, and under No. 3, by all means voluntarily.
THE DEFENDANT : The only way I would consider any common law lawyer is if he leas won a case or two of this nature, and he would have to be signed in in the Supreme Court original jurisdiction only. I'm not going to waive common law venue.
We have discovered the Supreme Court in the original and exclusive mode.
And I told you last time it was -- you even recognize -- or the 10th Circuit court justices recognized it in the Ensminger case, which I helped draft up, and it is in Title 28, Section -- it is under Supreme Court rules, other jurisdictions, Rule 17.1. That is the one that pulls in Article III jurisdiction. It pulls in the 11th Amendment and it pulls in the All Writs Act. That is how I would operate, not in a legislative contract court.
THE COURT: Right now though, Mr. Schweitzer, I'm not discussing with you the Court's jurisdiction. I'm simply discussing with you the very limited topic of the assistance of counsel.
THE DEFENDANT: Not in a legislative created tribunal. This is an executive courts you have got the executive seal, you are flying the maritime admiralty flag. No, not in this kind of a court. This is consent court, this is a contract court, and I don't consent.
THE COURT: So in this case, you would refuse and continue to refuse the appointment of counsel to represent you?
THE DEFENDANT: Those are your words. I put my words on the record I'll stand on my words, the way I worded it.
THE COURT: All right.
THE DEFENDANT: You are not going to lead me into a trap.
THE COURT: You would except what you call a common low counsel, but not a member of the Bar?
THE DEFENDANT: Only if this court recognizes division of the courts, which you are mandated by your oath to recognize.
Where is the sheriff? I don't see any office of sheriff. There is no bailiff in here at common law venue, These guys are executives, you are executive.
Where is the judicial branch of government process here. It has never been. And I'm not going to waive my common law venue. That is it -- okay.
THE COURT: Okay. You have it, you certainly have not.
But let's go back and review these indictments for just a second, those for which you were arraigned the last time you appeared.
And I went through at that time at some considerable length and talked to you about the potential penalties on these charges. They are severe. Some could go as long as a maximum of 30 years. Fines of up to as much as one million dollars. All of them are serious. All of them are felonies.
Conviction on any one of these counts, much less all 50 or 55 of them, could result in imprisonment for a substantial term of years.
I would think knowing this kind of cloud is over your future, that you would want the assistance of counsel, Mr. Schweitzer.
THE DEFENDANT: I have confidence in the United States of America Constitution and in the Constitution of Montana state. I have no quarrel with law. I know the law. I know it well.
I will not waive venue to a legislative created contract court. That is what this is. That is my objection. That is my exception. And I not am not going to waive it.
THE COURT: All right. will you permit the Court to change Mr. Cavan's status from that of standby counsel to counsel representing you in this case?
THE DEFENDANT: Absolutely not. I haven't deposed him.
You took away my assistance of counsel, my special bailiff, my U.S. Special Appointed United States Magistrate, Dan Petersen. He is sitting in the other room. The other time at least you let him sit here so I could get myself sworn in. And everything I put out here was in affidavit form. He is not here now.
When we bring in the fact that you people have destroyed my United States Court of Claims court in Butte, Montana, and Dora Lou Sevener has lost the papers, and it was brought over here to Billings, and my process server, Warren Stone, couldn't find the papers and now that is gone. You've got a real problem because I'm going to subpoena that in.
THE COURT: All right, From the totality of your comments, except your continued resection of the services of counsel appointed by this Court -
THE DEFENDANT: I'm not going to accept anyone that as not qualified.
THE COURT: Mr. Cavan will continue -- let me finish. Mr. Cavan will continue to stand by for the Court's assistance.
THE DEFENDANT: No, I object. Because I will not -- I'm going to say it again, it would have to be ineffective assistance of counsel, which is a constitutional mandate and a guarantee. And then I have to know whether he knows the law. So I'd have to put him under deposition and find out if he is qualified.
I will not have assistance of counsel who is not qualified
THE COURT: Have you thought about the things that Mr. Cavan could do to help your if you would permit him to act as counsel? Let me just run through some Of these things.
THE DEFENDANT: If we run --
THE COURT: He could file pretrial motions on your behalf --
THE DEFENDANT: No, no, I will not be --
THE COURT: -- testing the sufficiency of the indictments.
THE DEFENDANT: -- directed into this venue and this jurisdiction.
THE COURT: He could file motions to suppress evidence.
THE DEFENDANT: I have already stated my terms.
THE COURT : All right. He helps pick the jury. He could help you exercise challenges to people who would otherwise be called for your jury.
You could use his experience to effectively cross-examine witnesses called against you by the government. He could subpoena witnesses in your behavior as you might request.
He can argue to the jury at the end of the case, something he has done many times. He can assist the Court in giving instructions, some of which may be favorable to the defense.
And, finally, if it ever came to that point, he can assist you in minimizing, rather than maximizing, any sentence which may be imposed by the trial judge.
Those are all important functions that counsel can serve. And those are the kinds of things you are rejecting, sir, when you refuse the services of Mr. Cavan.
I just want to be sure that you are voluntarily and knowingly are rejecting that before we go ahead.
THE DEFENDANT: I do not waive common law venue I understand the Supreme Court, we are the ones that discovered it in the original mode. Don't try to take it away from me. We have got the evidence, and I want my grand jury.
THE COURT: All right.
THE DEFENDANT: Common law venue, Supreme Court.
THE COURT: Your continued rejection of counsel is accepted, sir. And you will continue to represent yourself.
THE DEFENDANT: I am not repre -- no, objection, and I take exception. You put the words in -- you put the words on the record not me. I am not representing myself. I am myself. It is sui juris and not representing, not pro se.
THE COURT: As you wish, Now, we have another matter to attend to this afternoon, Mr. Schweitzer.
We'll first hear from counsel for the government, we will pay him the courtesy of listening to him. And at the conclusion of his remarks, you will have the opportunity to respond.
MR. TOSCAS: Thank you, Your Honor. If I may, I'd like to address the Speedy Trial Act issues which are present in this case.
Initially, as I have stated in the case of Mr. Clark, the United States does not believe that as to Mr. Schweitzer the speedy trial clock has started to run in either 95-117 or 95-51, pursuant to 18 U.S.C. section 3161(h)(7). And that would be because of the fugitivity status of the remaining codefendants which have yet to be apprehended.
However, since the issue of complexity has already been raised and a declaration has been made by Judge Burns as to the two Stanton defendants, as well as this Court as to Mr. Clark, we believe that for the clarity of the record as to Mr. Schweitzer, and for his benefit and the benefit of his records that we also ask for excludable time under the Speedy Trial Act and the designation of complexity be made in this case.
It is the position of the United States that 95-117 and 95-51 are inherently intertwined as to the defendants, the evidence which produced them, the evidence, as well as the voluminous amount of discovery which would need to be amassed in both of those cases.
He believe that that is sufficient justification for 95-51 to also be declared as complex.
The reasons that we would set forth for this Court to find and holding this is complex litigation, would be the nature of these two charges; the multi-defendant, multi-count indictments, which allege, at least as to 95-117, a wide-ranging conspiracy which involve victims and potential witnesses in several different states; the volume of material; the voluminous discovery which would have to be compiled, organized and compiled and then turned over and then digested by the defense.
It has already been viewed by Judge Burns and a finding -- or at least an understanding has been made, that it would take months to compile and distribute that discovery in an orderly fashion.
In addition, we would point to the ongoing nature of the investigation, as well as the uncertainty as to how these cases will be tried as to the number of defendants at trial, as well as any severance or division of the defendants for trial purposes.
And for those reasons, we would ask this court declare the case to be -- actually both cases, 95-117 and 51, complex for speedy trial purposes. And we would ask that a specific date of July 1st be set for that excludable period to end, with the belief that on or before that date, Judge Burns will have the opportunity to hold a hearing with regard to discovery issues, and both the discussion and possible setting of a discovery schedule at that time.
THE COURT: All right. Mr. Schweitzer, the essence of what counsel has asked the Court to do is to suspend the Speedy Trial Act from now, today, until at least July 1 of l996, basing his arguments on the contention that both cases involving you are inherently complex, inherently intertwined, and cannot be effectively prepared, be prepared by the prosecution within the basic time limits of the United States Speedy Trial Act.
That is all he is requesting this afternoon, that is the only issue now before the Court. And as to that issue, I'll give you this chance to be heard.
THE DEFENDANT: I object to him raising the issue in this respect:
We have Article of Amendment, the 11th of the National Constitution, I brought up the division of the court. We have got a mandamus on the Sherry Scheel Mattuecci and her associates, and it has not been answered. Therefore, I declare them in default. You haven't answered the nonstatutory abatement. It basically is a moot issue.
And I have not granted common law venue into this legislative created court. There is no judicial process here. That is reserved for the Supreme Court and, therefore, I will not waive any rights of any kind, such as unalienable God given right, that would include a speedy trial.
THE COURT: All right. Based upon the proffer made by the United States, giving due regard to Mr. Schweitzer's objections the court being familiar with the nature of the charges presented in both information -- both indictments, I should say, in cause Nos. 95-117 and 95-51, the fact that there are many counts and many defendants, and that the indictments in many respects overlap, the fact is shown by proffer that investigation as to some or all of these counts continues, and will continue past today's date, the volume of investigative material is huge, it is my opinion that the interests of justice would be defeated if this case were forced to a speedy trial.
I'll, therefore, suspend the Act as requested by the government for a period between today and July 1 of 1996.
THE DEFENDANT: I object, take exception. You don't have authority to do that because I haven't granted venue to the Federal side of the court. I'm in the American national side of the court, the court is improperly set, the sheriff isn't here, there is no common law bailiff.
THE COURT: Upon this shoving of complexity by the government, and basic impracticality on the part of the prosecution to effectively prepare and present within the minimum time limits allowed, the defendant's right to a speedy trials the public's rights to a speedy trial are overcome by the interests of justice.
THE DEFENDANT: And I object again and take exception, that is a denial of a substantive right, a denial of 5th Amendment due process.
THE COURT: Very well. Anything further, Mr. Schweitzer?
THE DEFENDANT: (No response.)
THE COURT: All right. The defendant will be removed from the courtroom. And the clerk will call the next case.
THE DEFENDANT: I further object to the allegation that I was a defendant. This Court has no venue and no jurisdiction over me.
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.