Salvadore Sciandra
Attorney at Law
2300 Tulare Street, Suite 230
Fresno, California 93721
Tel: 209-233-1000




          Plaintiff,               NOTICE OF MOTION AND MOTION
                                   TO DISMISS THE INDICTMENT
Robert McKendrick and              Date:
Janice Mallen,                     Dept:


                       STATEMENT OF FACTS

     Defendants were  indicted on  June 22, 1995. The only count

against them  is Count  5 of  the indictment  wherein  they  are


     "[C]orruptly  endeavor   to  influence,  obstruct  and
     impede the  due and  proper administration  of the law
     under which  a pending proceeding, an IRS wage levy on
     Terry Ingram,  was  being  had  before  the  (IRS)  by
     preparing and  mailing, and causing to be prepared and
     mailed, to  the offices  of the  IRS...  a  fictitious
     warrant for  the arrest  of an  employee of the IRS in
     violation of 18 U.S.C. 1505."

A copy of the "fictitious warrant" is Exhibit 1.

     It is  NOT a  "warrant for the arrest of an IRS employee,"

fictitious  or   otherwise.     It  is  a  facetious  political

expression  sarcastic   of  government's   delusions  of   self

importance.     It  is   obviously  an   example  of  political

expression.  To treat it as "threat," or as "interference" with

government functions,  not only  violates the  First Amendment,

but it  should also  embarrass  government  to  so  expose  its

paranoid delusions  of persecution.  These delusions make it "a

federal crime"  for people  to poke  fun at  federal government


     Anyone reading  it  absolutely  knows  Exhibit  1  is  not

authority to  arrest or  to interfere  with government  agents.

But,  before  examining  it  in  detail,  let  us  examine  the

fundamental right  to create  and send  such an  expression  to

government in the first place.


     Specifically, the First Amendment says:

     "Congress shall  make no law ... abridging the freedom
     of speech, or of the press, or the right of the people
     peaceably to  assemble, and to petition the Government
     for a redress of grievances."

     The U.S.  DoJ wants  an exception:   "EXCEPT  that it is a

crime to  poke fun at government, especially its IRS."  But its

absolute  prohibition   is  written   into  international  law,

ratified by  the U.S.  Senate and  signed by  President Bush in

June of  1992.   Article 19  of The  International Covenant  on

Civil and Political Rights states:

     "Everyone shall  have the  right to freedom of opinion
     and expression;   this  right shall include freedom to
     seek, receive  and impart information and ideas of all
     kinds,  regardless  of  frontiers  either  orally,  in
     writing or  in print,  in the  form of art, or through
     any other media of his choice.  [emphasis added]

     While a  similarly worded  Article 19 of the Declaration of

Human Rights  has no  restrictions at all, Article 19, Section 3

of the International Covenant contains the following language:

     "3.  The  exercise  of  the  rights  provided  for  in
     paragraph 2 of this article carries  with  it  special
     duties and  responsibilities.   It  may  therefore  be
     subject to  certain restrictions, but these shall only
     be such as are provided by law and are necessary."

     Of particular interest is what Our United States Senate had

to  say   about  those   "restrictions"  in  its  Instrument  of

Ratification.   It is recorded in the instrument at item III(2),

as follows:

     "(2) That  it is  the view  of the  United States that
     States Party  to the Covenant should wherever possible
     refrain from  imposing any restrictions or limitations
     on the exercise of the rights recognized and protected
     by the  covenant,  even  when  such  restrictions  and
     limitations are  permissible under  the terms  of  the
     Covenant. For  the United States, Article 5, paragraph
     2,  which   provides  that  fundamental  human  rights
     existing in  any State  Party may not be diminished on
     the pretext  that the  Covenant recognizes  them to  a
     lesser extent, has particular relevance to Article 19,
     paragraph 3 which would permit certain restrictions on
     the freedom of expression.  The United States Declares
     that it  will continue  to adhere  to the requirements
     and constraints  of its Constitution in respect to all
     such restrictions and limitations."

     What does  our Constitution  require when  a statute is so

broad that  it violates  freedoms of  expression,  as  DoJ  has

interpreted 18 U.S.C. 1505 in this case? It not only invalidates

the indictment,  but statutes  that are  so vague  as to  chill

freedom of  expression are  invalid.    (See  United  States  v

Reeves, infra at page 9-10;  U.S. v De Cadena, 105 F.Supp. 202,

204 (1952);  Connally et al. v General Construction Co., 269 US

391 (1926).)

     In a case relevantly similar, Watts v United States, 394 US

705 (1969),  The Supreme Court determined that a person who made

a   public    statement,   after   receiving   his   A-1   draft

classification, that   "I'm  not going.   If  they ever  make me
carry a  rifle, the  first man  I want  to get  in my  sights is

L.B.J. (President  Johnson)"  did  not  in  fact  "threaten  the

President."  Said the Court at 394 US 708:

     "The majority  below seemed  to agree  (that  only  an
     apparent determination  to carry  out  the  threat  is
     required).   Perhaps this  interpretation is  correct,
     although  we   have  grave   doubts  about  it.    See
     Dissenting opinion 402 F2d at 686-693 (Wright J.)  But
     whatever the  "willfulness" requirement  implies,  the
     statute initially  requires the  Government to prove a
     true  "threat".    We  do  not  believe  the  kind  of
     political hyperbole  indulged in  by  petitioner  fits
     within that statutory term.  For we must interpret the
     language Congress  chose "against  the background of a
     profound national  commitment to  the  principle  that
     debate on  public issues should be uninhibited, robust
     and wide-open,  and that it may well include vehement,
     caustic, and  sometimes unpleasantly  sharp attacks on
     government and  public officials."    (Cites  Omitted)
     The language  of the  public arena,  like the language
     used  in  labor  disputes  (cites  omitted)  is  often
     vituperative, abusive,  and inexact.   We  agree  with
     petitioner that  his only  offense here was "a kind of
     very crude  offensive method  of stating  a  political
     opposition to  the President."   Taken in context, and
     regarding the  expressly  conditional  nature  of  the
     statement and the reaction of the listeners, we do not
     see how  it could  be interpreted  otherwise."  [emph.

     What would  Americans say  about Russia's putting Russians

in jail  for a  like political  expression directed at the KGB?

Does the  United States  really want  to set  this standard for

political persecution  of  persons  who  "crudely  state  their

political  opposition"  to  government    bureaucracies?    Not

according  to   The   U.S.   Senate's   Ratification   of   The

International Covenant on Civil and Political Rights, supra.


     On its  face, the "warrant" calls itself a "judgment"  and

does NOT pretend to authorize arrest.  Read what it "orders" on

page two:

     "Court of  Conscience:  Assembled in Article 1, Sec. 2
     Government by  Authority of  JURY Article  IV Sec. 23,
     (symbol  for   paragraphs)  9,   14  Mandated  in  all
     jurisdiction by  equal  I,  IX,  X,  POWERS  to  Amend
     Administrations District of Columbia jurisdiction."

     Where's the  order for arrest?  Whatever it means, it does

not purport  to authorize an arrest.  Anyone "threatened" by it

is only threatened by his own conscience.

     Examine the  Face Page.  Note under the "DoJ address": "Ex

rel: Form  668-A (c)  71589".  Whatever that means, it seems to

be gibber-ish.   My, oh, my:  Such a high quality of IRS agents

to be "threatened" by ramblings from Alice in Wonderland.

     Next, as  part of  the address  "c/o  (delta,  symbol  for

change) Government  Article I,  (symbol for  section) 2."  Such

begins a  factious political  dialogue carried  on  immediately

under the title USA:  "(symbol for change) U.S.C. TITLE 18 Sec.


     The court is asked to read 18 U.S.C. 336. Anyone who issues

or accepts  a check  for less than a dollar is jailable for six

months.   That is  a federal  law.   Can anyone  be blamed  for

poking fun at it?

     Now, note  the next  two lines  in combination with the DoJ

address:   "SUPREME COURT,  OCTOBER TERM 1993".  The combination

is a  political pundit  at the DoJ's enforcing ludicrous laws in

the Supreme  Court. Instead  of a  separation  of  powers,  this

sarcastically  refers   to  the   combination  of  judicial  and

executive  powers   against  the   smallest  details   of  human

liberties, like  "paying  private  debts  with  checks  under  a


     Again, in  the case  title there  is a reference to a form

and  the  phrase:    "Change  Government  Article  I  Sec.  2".

Whatever that  means, it  is in  the context  of  the  opposing

party:  "Federal agent M. Ryan dba Modesto Toyota et al does 1-

999  U.S.C. T 18 336 syndicate."

     It is  plainly just making fun of an all-important federal

government harassing  people over  the most petty things - like

this prosecution  - in  blatant violation  of political rights.

In effect, it is saying:

     "Who can  really  take  the  'big  bad  federal  wolf'
     seriously when  it wastes  all this  federal money and
     prosecutorial  power,   over   nothing;   while   real
     gangsters roam free."

     The document title again refers to the Form 668-A (c) 71593

and then  says  "CAVEAT  EMPTUS  UCC  T  5-104".    While  exact

interpretation is  difficult, it  is  obviously  saying,  "Buyer

Beware, Uniform  Commercial Code  Title  5  Section  104."  That

section deals  with the  "Formal  Requirements"  of  letters  of

credit, from  which we  know that  the author  is making  fun of

government's efforts  to control  the people  in the most minute

details, as in the next phrase "Warrant for Arrest," followed by

"SS" and  the spaces  for a social security number.  Whatever it

means, this  too is  so obviously political expression that even

this  court   ought  to  be  embarrassed  to  have  allowed  the

persecution to go this far.

     The court is asked to read the "judgment."  It simply pokes

sarcastic fun at a government agent.  It cannot be construed any

other way.  She is "guilty of carrying a U.S.C. Title 18 Sec 336

instrument with intent to pass" it as a Treasury Note!

     Now, look  at the  back page:  "Warranted this  3 SONday of

August in  Jesus  Christs  1993  year  of  (symbol  for  change)

Government for Article I, Sec. 2 JURY."  Then note the titles of

the "JURY PEERS".   If there  need be  any proof that the author

is correct,  that government deserves this kind of criticism and

that people  should not  take it  seriously, it  is prosecutions

like this.


     Defendants raise  Three Issues  which are all a part of the

major issue:  Did the DoJ violate both the rights of the accused

and the  rights of the Grand Jury by failing to advise the Grand

Jury that  the  First  Amendment  protects  the  People's  Right

peacefully to  poke fun  at government  agencies,  even  if  the

agency has no sense of humor?

     1.   The acts  alleged +  of "preparing  and  mailing"  the

document alleged  + is  like filing a "declaration of trespass,"

and is protected by the Petition Clause as in U.S. v Hylton, 710

F2d 1106.

     2.   Given cases  like Hylton  supra, are the acts alleged

so APPARENTLY  protected by  the First  Amendment, that even if

they are  not, prosecution  for such acts and such associations

violates the due process of law? That is, 18 U.S.C. 1505, taken

in combination with Hylton and Reeves and the Petition and Free

Speech Clauses,   does  not give  fair warning that the conduct

alleged is prohibited by them, or even prohibitable.

     3.   Does  the  use  of general laws like  18  U.S.C.  1505

(directed at  prohibiting obstruction of justice by use of force

or threats)  to intimidate  and  punish  people  for  exercising

political  speech   rights  not  render  such  general  statutes

violative of the First Amendment and thus unconstitutional?  The

issue is not just "as applied in this case."  DoJ systematically

uses these  laws to  chill Petition and political speech rights.

Are they  not "void  for vagueness  and overbreadth" because DoJ

interprets "threat"  to include  "poking fun  at government in a

way no rational person could take as a threat?"


     1.  The Act Alleged Is a "Peaceable Assembly to Petition"

     The  act   alleged  is,  in  effect,  an  allegation  that

Defendants   corruptly assembled  to petition  government for a

redress of  grievances, where  "corruptly" means "the IRS agent

disagrees that  they have  a right  to redress" ... or that the

petition should be mailed to the particular agency;  or that it

should be  published;   or that ... or that ... all the endless

"or thats"  which make  a difference, in a self-serving agent's

subjective mind,  between  a  "bona  fide"  exercise  of  First

Amendment Rights, and a crime punishable by five years in jail.

IF ANY  AGENTS mistook  this document  as a  threat within  the

meaning of 18 U.S.C. 1505,  they should  be  terminated  as  so

paranoid they  cannot be  trusted to deal with the Public under

the Constitution.

     Under Hylton,  and the  face of  the First  Amendment, the

crime  alleged   is  political  speech  to  government,  albeit

sarcastically. When Agents, who naturally feel their conduct is

justified, are  free to decide that a highly protected right is

"really" a  criminal offense  that can put a person in jail for

five years,  it is  not called  "prosecution,"  but  "political


     U.S. v  Hylton elaborated  on protected  status at 710 F2d


     "As the  U.S. Supreme  Court has  held, the  right  to
     petition for  redress of grievances is 'among the most
     precious of  the liberties  safeguarded in the bill of
     rights.' (Cites)    Inseparable  from  the  guaranteed
     rights entrenched in the First Amendment, the right to
     petition  for   redress  of   grievances  occupies   a
     'preferred place'  in  our  system  of  representative
     government and  enjoys a  'sanctity and a sanction not
     permitting dubious  intrusions.' Thomas v Collins, 323
     US 516;   65  S.Ct. 15, 322.  Indeed, '[i]t was not by
     accident or  coincidence that the rights to freedom in
     speech and  press were  coupled in  a single guarantee
     with the  rights of  the people  peaceably to assemble
     and to  petition for  redress of  grievances.'  Id. at

     What is  the essence of the "crime"?  It is a difference of

ideas on  "proper" ways  to Petition  Government, and  IRS Agent

Mary Ryan  wants to  make a  crime of Defendants' idea of how to

get the attention of a government that systematically refuses to

listen. Said  Justice Holmes  in his acclaimed dissent in U.S. v

Abrams, 250 US 616 at 630:

     "Persecution for  the expression  of opinions seems to
     me perfectly  logical. If  you have  no doubt  of your
     premises or  your power and want a certain result with
     all your  heart, you  naturally express your wishes in
     law and sweep away all opposition. To allow opposition
     by speech  seems to indicate that you think the speech
     impotent as  when a  man says  that he has squared the
     circle; or  that you  do not  care whole heartedly for
     the result;  or that  you doubt  either your  power or
     your premises.   But  when men have realized that time
     has upset  many fighting  faiths,  they  may  come  to
     believe,  even   more  than   they  believe  the  very
     foundations of  their own  conduct, that  the ultimate
     good desired  is better reached by free trade in ideas
     -- that  the best  test of  truth is  the power of the
     thought to  get itself  accepted in the competition of
     the market,  and that  truth is  the only  ground upon
     which their  wishes can  be safely carried out.  That,
     at any rate, is the theory of our Constitution."

     Imagine:  The conduct is a peaceful and sarcastic petition

to government  for redress  of  grievances,  but  Mary  Ryan  &

Company think  that the  great force  and might  of the  United

States is  required to stop it by criminal persecution, because

she does  not think that such sarcastic speech, to her or about

her, is a good idea.

     First, federal agents got special immunities;  now it is a

crime to  even complain about their conduct;  and that does not

abridge the Petition Clause?  We must be looking at a different

constitution from the one that Justice Holmes knew.

     2. The  Statutes Give  No Warning for the Conduct Indicted

     18 U.S.C. 1505 states:

     "Whoever corruptly  or  by  threats  of  force  or  by
     threatening  letter   or  communication,   influences,
     obstructs  or   impedes  or  endeavors  to  influence,
     obstruct or  impede the  due and proper administration
     of law ...."

     The Court  is asked to read United States v Reeves, 752 Fed

995 (1985), and apply it to the facts of this Case and 18 U.S.C.


     The indictment  violates due process in that the conduct it

indicts is  apparently protected  under Hylton.  The Reeves case

holds that  even a  "frivolous lien" is close enough to the gray

area to be protected, saying:

     "'The Court  has a  duty to construe a federal statute
     to  avoid   constitutional  questions   where  such  a
     construction  is   reasonably  possible.'   Arnett   v
     Kennedy, 416  US  134  (1974).  This  constitutionally
     based  duty   reaffirms  our   interpretation  of  the
     language of  the statute and its legislative history."
     U.S. v Reeves, 752 F2d at 1001.

The Reeves court went on:

     "Thus, even  if the  filing of  a frivolous common law
     lien  is   not  protected   by  the   first  amendment
     guarantee, such filings are at least adjacent to areas
     of protected  activity. It  is possible that where the
     filer  has   a   "bad"   motive,   the   only   factor
     distinguishing a  protected from an unprotected filing
     would be  the frivolousness  of the  lien were  we  to
     adopt the trial court's definition of 'corruptly.'  In
     addressing the  free speech  guarantee  of  the  first
     amendment, the  Court has  noted that  over breadth is
     possible  where  conduct  'falls  close  to  the  line
     separating the lawful and unlawful, the possibility of
     mistaken fact-finding -- inherent in all litigation --
     will create the danger that ... legitimate action will
     be penalized.'  Speiser v  Randall, 357  US 513,  526.
     Similar  considerations  apply  to  the  guarantee  of
     freedom to petition."  U.S. v Reeves, 752 F2d at 1001.

     3.  The Statutes Are Unduly Vague and Unconstitutional

     One problem  is in the disjunct:  "corruptly OR by means of

force."  That leaves it up to the agent to interpret "corruptly"

as she  pleases.   This chills  persons from  complaining of  an

agent's conduct.   If  the  agent  disagrees,  it  is  "corrupt"

because the  statute states  no standard  and agents are free to

create their own.

     The void  for vagueness  doctrine requires  that a  statute

must be  precise enough to give fair warning to actors that "the

contemplated conduct  is criminal," and it must provide adequate

standards to  enforcement agencies,  fact finders  and reviewing

courts.   See Connally v Gen. Const. Co., 269 US 385; Lanzetta v

N.J., 306  US 451;   Coluatti  v Franklin, 439 US 379; Village v

Flipside, 455 US 489.

     An over  broad statute which sweeps under its coverage
     both protected and unprotected speech and conduct will
     normally be  struck down as facially invalid, although
     in non-first  amendment  situations  the  Court  would
     simply void  its application to protected conduct. See
     Kunz v  NY, 340  US 290;  Aptheker v Secretary, 378 US
     500;   U.S. v  Robel, 389 US 258;  Lewis v City of New
     Orleans, 415 US 130.

Due process  requires that  courts strike  down  vague  criminal


     "The essential  purpose of  the  "void  for  vagueness
     doctrine"  with   respect  to   interpretation  of   a
     crimninal statute,  is  to  warn  individuals  of  the
     criminal consequences  of their conduct. ...  Criminal
     statutes which fail to give due notice that an act has
     been   made   criminal   before   it   is   done   are
     unconstitutional deprivations  of due process of law."
     U.S. v De Cadena, 105 F.Supp. 202, 204 (1952)

     "That the  terms of  a penal  statute creating  a  new
     offense must  be sufficiently explicit to inform those
     who are  subject to it what conduct on their part will
     render  them  liable  to  its  penalties  is  a  well-
     recognized requirement,  consonant alike with ordinary
     notions of  fair play  and the  settled rules  of law;
     and a  st atute  which either  forbids or requires the
     doing of  an act  in terms so vague that men of common
     intelligence must necessarily guess at its meaning and
     differ  as  to  its  application  violates  the  first
     essential of  due process  of law."  Connally et al. v
     General Construction Co., 269 US 385, 391 (1926)

     Does DoJ's use of general  laws  like  18  U.S.C.  1505  to

intimidate and  threaten Citizens with punishment for exercising

Petition Rights  not render  such laws unconstitutional?  Reeves

says that it does:

     "In  addition,   we  have  upheld  sec.  1503  as  not
     unconstitutional on  vagueness grounds largely because
     the statute  covers only  actions related  to  pending
     judicial proceedings,  thus providing  adequate notice
     to potential  violators. (U.S. v Howard, 569 F2d 1331,
     1336, n.9)   In  contrast, the  IRS is permitted great
     power to  intrude on,  and investigate virtually every
     aspect of  economic life  to  effect  its  purpose  of
     administering  the   tax  laws;   thus,   the   narrow
     circumstances in  which  Sec.  1503  applies  have  no
     parallel in  cases involving  sec. 7212(a).   We  have
     noted  in  the  past  that  except  for  those  narrow
     circumstances, "we  would tend  to agree  ... with the
     claim    that    the    statute    (1503)    ...    is
     unconstitutionally vague (Howard at 1336).  Since sec.
     7212(a) is  not restrained  by the  fact  that  it  is
     narrowly  applicable,  we  cannot  say  with  as  much
     assurance that  potential violators  will  be  put  on
     notice that  their conduct is 'corrupt' in the eyes of
     the law  as is  the case  under Sec.  1503."   U.S.  v
     Reeves, 752 F2d at 999

     DoJ/IRS  continue   to  create  broad  interpretations  of

statutes  like  18  U.S.C.  1505  to  oppress  First  Amendment

expression, in  total disregard  of  the  Court's  teaching  to

construe those  statutes narrowly.   By  force of its continued

violation of  First Amendment rights, 18 U.S.C. 1505,  and  all

statutes DoJ  regularly uses  for political oppression, are all

void for vagueness.

     It is  necessary and  proper that  statutes which  DoJ/IRS

interpret with  such liberty as to intentionally chill petition

and speech  rights be declared unconstitutional, not because of

any fault  of Congress,  but because  of the  repeated abuse by


Dated:  December 28, 1995


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U.S.A. v. McKendrick et al.