Professional Documents
Culture Documents
COMES NOW, Brent Winters (“Winters”), in respect of this Honorable Court and
makes this Claim of Error and Record of Objections, and grounds for making
them, regarding the Hearing on 23 August 2006 concerning the above captioned
case (the “Hearing”) before the Honorable Chief Judge Michael P. McCuskey (the
rights to due process of law under the Fifth Amendment; his civil and
fundamental rights to a speedy trial under the Sixth Amendment and the Speedy
Trial Act; his rights to freedom from unlawful searches and seizures under the
Fourth Amendment; his right to petition the government1 and the Court for
redress of grievances on behalf of his clients and now for himself under the First
judgment, advise his clients based on his independent judgment and refer them
to competent counsel;2 his rights to public pretrial proceedings and a public trial
2. Winters has not and does not waive any of his rights and asserts that he
prejudiced by the Court’s and the prosecutor’s failure to disclose judicial and
3. Winters makes this Record of Objections with all respect due to this
Honorable Court and under his duty, as an officer of this Court, to be candid
record, that the Honorable Judge’s insistence for and persistent prosecution of
Assistant U.S. Attorney Frooman (“Frooman”) and her instructing IRS agent
1 See infra app. 1, for the background record concerning vindictive and selective
prosecution aimed at chilling of Winters’ willingness to petition the government in
exercise of his sworn duty in to assert his clients’ rights, by attempting to instill fear
of retaliatory prosecution against Winters’ clients and against Winters.
2 During the past six years, clients targeted civilly and criminally by the IRS have
2
Bernard Coleman (“Coleman”) have knowingly, willfully, and impermissibly
exploited the Honorable Judge’s bias by unlawfully concealing it. Winters makes
this Record of Objections in light of the evidentiary rule that bias is always
relevant.
BACKGROUND
Harry Woolen (“Woolen”), and Debra Hills (“Hills”) in the presence of eleven
Matter of the Search of 913 17th Street, Charleston, Illinois 245 F. 3d 978
violation of Winters’ due process rights, the Honorable Judge denied Winters’
modest request for a bill of particulars (see Winters’ Motion for Bill of Particulars
of 14 May 2006, dkt. # 11) stating for his reason that discovery would be
3 Due to the confusion and delay caused by the Court’s and Frooman’s failure to disclose bias
and the Court’s unexpected dismissal of Debra Hill’s counsel, on 7 August 2006, Winters filed a
Request for Clarification of filing dates for pretrial motions to which the Honorable Judge did not
respond. As of 16 September 2006 Frooman has provided no discovery. See dkt. # 42.
3
6. On 17 August 2006, Frooman filed her Informational Notice admitting
with the United State’s Attorney’s office; and that United States Attorneys’ Jan
Paul Miller (“Miller”) and Assistant U.S. Attorney Frooman reported back to the
7. On 18 August 2006, the Honorable Judge recused himself from the instant
case following Frooman’s admissions of judicial bias and her knowledge of that
unwarranted search (the “Search”) of Winters’ office, his client’s files, papers,
Frooman’s failure to disclose bias and the Honorable Judge’s belated recusal, the
Court continued Winters’ trial on its own motion, thereby continuing violations
9. The record further indicates that vindictive animus toward Winters has
overtaken public defender John Taylor (“Taylor”), former United States Attorney
Jan Paul Miller, Assistant U. S. Attorney Hilary Frooman, her instructing agent
10. During the Hearing, the Honorable Judge affirmed that he moved Miller
and vindictively concealed and took advantage of the Honorable Judges’ bias
4
toward Winters.4
12. By her Informational Notice Frooman further confesses that the U.S.
Honorable Judge. This admission would necessarily include the operative facts of
the present indictment against Winters because at the time of Frooman’s report
to the Honorable Judge, the government had gathered the evidence purportedly
13. During Winters’ reluctant but necessary duty to represent tax clients
civilly and criminally over the past six years before the IRS and before the Courts,
other IRS agents to retaliate for the exercise of fundamental rights by exacting
5
14. Winters, although disappointed in the willfully irregular habits of
Frooman and Coleman and other IRS agents, remained confident in his
representation of his clients and cooperative with the system recognizing two
things: that prosecutors and law enforcement officials often fall prey to over
zealousness, but the courts should serve as a buffer; and Winters was confident in
Winters’ indictment and having obtained it, persisted in sitting in judgment over
liberty at trial, thereby undermining Winters’ confidence in the good faith of the
defender Taylor was colluding with prosecutor Frooman to deny the rights of his
scheduling William’s and Tylman’s trials to commence on the same day, before
the same judge (the Honorable Judge McCuskey) and, presumably, in the same
Tylman, and Hills were “going down,” and then, only minutes later and in
7Winters takes notice that federal judges often stack trial dates because experience
demonstrates that defendants will often move for a continuance. In this case, however,
Taylor, against Tylman’s express instructions moved for a continuance apparently to
assist the Court in alleviating its congestion, to satisfy Frooman, and to maintain both
Williams and Tylman as clients. Further, the Court failed to provide the reasons for the
continuance as required by 18 U.S.C.A. 3161 (h) (8) (B) i–iv. Congestion of the Court’s
schedule is insufficient justification for a continuance under the Speedy Trial Act. See id.
6
apparent determination to make good on his promise against Winters (and his
client, Tylman, and Hills), entered open court and pled with the Honorable Judge
56.
influence the Grand Jury, undermining Winters’ confidence in the good faith of
19. From Frooman’s conduct in the instant case and during Winters’
representation of his client, Patridge (see United States v. Denny Patridge 04-
20031 [2005]), emerges a pattern of suspect behavior including the filing of false
and frivolous documents with knowledge of their falsity and frivolity, two poorly
20. Grand Jury and Trial transcripts establish that Frooman and her
8 In the federal courts, the Fed. R. Civ. Procedure require that complaints of fraud
be pled with particularity sufficient to enable an adequate and informed defense,
i.e., a particular defense. How much more ought particularity be required in
criminal actions for fraud where men and women are put in jeopardy of losing their
personal liberty. At the outset of this case, Winters requested a modest bill of
particulars to Frooman’s poorly pleaded indictment. The Court summarily denied
Winters’ request stating that Frooman had assured the Court that discovery would
be under an “open policy” and would suffice. See the Court’s Memorandum ruling of
31 May 2006 dkt. #22. Winters objects.
7
Patridge—conspired with grand jury witness Larry Phillips of J.K. Harris
Company (“Phillips”) to alter exonerating evidence and did alter it, thereby
21. Winters had gathered this evidence and provided it to Frooman and
22. In addition, Winters has since learned from friends who were forced to
appear before grand juries, that Winters’ prosecutors have maliciously reached
back at least twelve years into his personal past, his family life, his church life, his
23. Winters has not sought to uncover the wrongs cited above and recounted
below: Winters did not ferret them out. Rather, Frooman, Taylor, and the
Honorable Judge have brought to light their failure to disclose known bias by
express and tacit admissions. Winters has merely watched and considered what
he has observed.
festered into confusion and delay with three unexpected and related occurrences:
(1) the Honorable Judge’s belated recusal in the face of Frooman’s unexpected
8
Informational Notice that she and Miller took instruction from the Honorable
Judge and cooperated with the Court to investigate Winters without requisite
the Honorable Judge respecting Winters’ prosecution; and (3) public defender
Taylor’s unlawful collusion with the Court and the Prosecution to deny Tylman’s
OBJECTIONS
26. Winters objects to the Honorable Judge presiding over the Hearing for two
reasons: because the Honorable Judge was without authority to preside, having
recused himself five days before on 18 August 2006; and because the Honorable
reaching back for an unknown time, but for at least more than four years, and
27. By presiding over the Hearing, entering his negative opinions and
comments concerning Winters into the record, and making rulings, the
10 See affidavits of Kenton Tylman and Debra Hills attached to Tylman’s Pro Se
Motion to Remove Counsel of 14 August 2007, dkt. #56.
11 See infra app. 2.
12 See id., for background concerning the Honorable Judge’s initiation of and
ongoing involvement in Winters’ indictment and prosecution for more than six years
past and for points of authority concerning judges’ bias and prosecutorial acts from
the bench.
9
of opinion from the Bench concerning Winters; Winters respectfully objects.
“[T]he Supreme Court has made clear that, when the presiding judge is not
standards.” See Harrison v. McBride, 428 F.3d 652, 668 (7th Cir. 2005).
29. Nonetheless, the Honorable Judge conducted the Hearing, devoting more
justification of two non-judicial acts: his pressing United States Attorney Miller
and Frooman for Winters’ indictment and his failure to timely disclose his
personal bias against Winters, while at the same time entering depreciating
30. The Supreme Court continued its finding stating: “Due process may . . . be
a personal grievance . . . .” Id. quoting Offutt v. United States, 348 U.S. 1114, 75
S.Ct. 11 (1954).
31. “[T]he appearance of justice,” the Supreme Court has repeatedly said, “is
Delvecchio v. Illinois Department of Corrections, 8 F.3d 509, 515 (7th Cir. 1993).
Court’s] highest attention because they undermine respect for the law.” Id. at 514.
conclusion of bias and violation of due process. With respect to judicial bias,
perception is reality.
10
32. Because perception of bias is deemed bias, Winters bears no burden to
prove the bias of the Honorable Judge: “To require a criminal defendant to prove
actual bias would insure that no one could ever succeed in showing that their
Cir. 1993).
33. Winters further objects because in making extended record in his defense
for his failure to disclose his bias against Winters, the Honorable Judge placed
34. 28 U.S.C. § 455 (a) (1) not only forbids the Honorable Judge from
presiding over any proceeding in this case because “he has a personal bias or
prejudice concerning” Winters, but also because “he has personal knowledge of
See id.
facts in this case in that his magistrate participated in the issuance of the three
constitutionally insufficient warrants and by his having sat in judgment over the
14 See infra app. 3, for a recounting of the suspect issuance, service, and execution
of the warrants that began Frooman’s, Coleman’s, and the Honorable Judge’s
acquaintance with Winters.
15 See in addition infra app. 2, concerning background and personal knowledge of the
11
Seventh Circuit Federal Court of Appeals’ (the “Appellate Court”) opinion
concerning the Honorable Judge’s Order of 13 July 2000 In the Matter of the
Search of the Office of Ken Tylman, Worldwide Financial Services, 913 17th
37. The Honorable Judge stated in the Hearing on 23 August 2006 that the
Appellate Court ruled on the Appeal from his Order to Suppress the Search
38. The Honorable Judge’s comments concerning the Appellate Court’s ruling
are error16 because contrary to the Honorable Judge’s assertion at the Hearing,
the Appellate Court refrained from ruling on the suppression issue and expressly
reserved it for a later time because no indictment had yet been obtained, stating:
See In Re Matter of the Search of 913 17th Street, Charleston, Illinois 245 F. 3d
38. The indictment against Winters, however, would not be filed for over six
years after the unwarranted Search. But now, an indictment has been filed, and
39. However, because the Honorable Judge has sealed these alleged warrants
16 See infra app. 5, for the Appellate Court’s judgment concerning the three
attempted warrants, Coleman’s belated attempt to cure, and a discussion of the
effect of entering the premises without authority of a valid warrant and securing the
premises while two more warrants were sought.
12
any inspection of them remains impossible. See id.17
40. Winters objects to this sealing and the sealing of any other documents in
this case because all such sealings—thus far—are contrary to the Supreme Court’s
finding in In Press Enterprise Co. v. Superior Court, 464 U.S. 501 at 510, 104
S.Ct. at 819 at 824, 78 L.Ed. 2d 629, at 683 (1984), enforcing the Sixth
right.18
41. Winters further objects to the Honorable Judge’s assertion at the Hearing
that the Appellate Court affirmed the Honorable Judge’s vitriolic comments in
his Order concerning Winters. See Order of United States District Judge Michael
P. McCuskey of 13 July 2000, In the Matter of the Search of the Office of Ken
42. The Appellate Court, however, did not affirm the Honorable Judge’s
comments. Rather, the Appellate Court mentioned Winters only once in its
opinion, stating that Winters was an attorney present at the Search. See In Re
Matter of the Search of 913 17th Street, Charleston, Illinois 245 F. 3d 978
43. In In Re Matter of the Search of 913 17th Street, Charleston, Illinois 245 F.
the Court that he had included with the first warrant a list of items to be seized;
Coleman’s sworn testimony states otherwise. The record reveals other inconsistencies
and irregularities in the warrants, attachments, affidavits, and accompanying filings.
18 See infra app. 4, for the Supreme Court’s finding that the Sixth Amendment
right to a public trial applies to pretrial proceedings. Winters surmises that the
fourteen documents sealed in the case of his client, Patridge, could pertain to Winters,
and if to Winters, then possibly to the defense of Patridge, Winters’ client. See United
States v. Denny Patridge 04-20031 (2005).
13
3d 978 (argued 13 February 2001; decided 5 April 2001), Tylman, Woolen,
McNutt, and Hills sought to overturn the Honorable Judge’s order of 13 July
seizure, and moved the Appellate Court to order Frooman to return all
documents and items seized—and now assumed to constitute nearly all of the
44. Winters contends that this appellate challenge of the Search, coupled with
the long day of Coleman’s unwarranted seizure and Search of the building at 913
17th Street—arguing that all three warrants were unconstitutional and that the
See Levenstein v. Salafsky 164 F.3d 345, 352–53 (7th Cir. 1998); U.S. v.
Armstrong et al. 517 U.S. 456 (1996); 116 S.Ct. 1480 (holding that selective
investigation and prosecution, the Honorable Judge acted outside the scope of
his judicial authority, i.e., his actions against Winters were non-judicial in
function. Because Winters was neither a party before the Court nor did Winters
14
in any way impede the Honorable Judge’s ability to make independent minded
Winters is personal, not judicial. See Forrester v. White, 792 F.2d 647, 659-60
(7th Cir. 1986)(Posner, J., dissenting); rev’d, 484 U.S. 219, 230 (1988).19
47. Winters further objects, stating that law required the Honorable Judge,
Miller, and Frooman20 to disclose the Honorable Judge’s bias as soon as the
48. Winters further objects contending that law requires that the Honorable
49. Neither throughout the years during the investigation of Winters, nor at
2006 of the superceding indictment did the Honorable Judge, Miller, Roger
19 See infra app. 9, for a brief and memorandum of authorities concerning distinctions
between judicial and non-judicial acts.
20 Miller, Frooman, and Roger Heaton, by their failure to disclose the Honorable
Judge’s bias against Winters, have committed prosecutorial misconduct under the Code
of Professional Conduct and have violated Rule 8.4(7) which states that a lawyer must
not “assist a judge or judicial officer in conduct that the lawyer knows is a violation of the
Code of Professional Conduct.” Any omission or commission of Miller, or Heaton, or
Frooman in this regard is independent of the Honorable Judge’s memory or lack thereof
concerning Winters. Miller’s, Frooman’s, and Heaton’s failure to immediately disclose
judicial bias against Winters constitutes prosecutorial misconduct.
21 In stating that the law required the Honorable Judge to timely disclose his bias
against Winters, Winters does not mean to suggest that by doing so the Honorable Judge
would have fulfilled his responsibility to the law. The law requires that the Honorable
Judge zealously maintain not only the reality but also the appearance of neutrality by
zealously guarding against the mere appearance of bias on the Federal Bench. Mere
appearances of bias undermine the perception of justice. Therefore, it was a breach of
standards for the Honorable Judge to initiate prosecution against Winters and an
exacerbation of that breach to continue participation in it. Even so, once the Honorable
Judge had done so, he remained under an affirmative duty to immediately disclose the
breach and his bias, and to forthwith recuse himself.
15
any grand jury.
50. In In re Murchison, the trial judge had been the prosecutor seeking the
part of that process [of a person’s indictment] a judge cannot be, in the very
accused.” 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
51. Winters’ case is analogous in that the Honorable Judge initiated Winters’
52. The Honorable Judge, therefore, “having been part of that process” of
Winters’ indictment, “cannot be, in the very nature of things wholly disinterested
possible.
53. In addition, Winters contends that the law required disclosure of two facts
Honorable Judge. First, that the Honorable Judge expected from Frooman a
“inform[ing] the Court that she had no information to provide at that time.”22
22 See Frooman’s Informational Notice, para. 1. Frooman also states: “Chief Judge
Michael P. McCuskey had provided him [former United States Attorney Jan Paul
Miller] background information regarding Defendant Brent A. Winters, and
recommended an investigation of Winters’ alleged criminal conduct.” The Honorable
16
54. Winters objects, asserting that these errors are not harmless; the
unrebuttable presumption of bias. See Harrison v. McBride, 428 F.3d 652, 668
55. Winters further contends that this required disclosure includes any and all
indictment, and his prosecution; and encompasses any and all comments the
any member(s) of any Grand Jury considering Winters’ case. For, by virtue of the
perceived dignity of the Court, any comments of the Court spoken from a biased
inclination can effect biased consequences and is, therefore, irreversible error.
56. The Honorable Judge’s failure to disclose and the ensuing delay has
resulted in the violation of Winters’ civil rights affecting Winters’ civil liberties.
57. Winters further objects to the Honorable Judge’s allegations of fact and
legal conclusions at the Hearing that Winters had violated the attorneys’ Code of
Judge revealed during the Hearing that this background information concerned
Winters’ alleged violation of the Code of Professional responsibility, stating that
Winters “certainly” had violated the Code of Ethics.
The Honorable Judge, however, did not report Winters’ alleged violations of the
Code of Ethics to the Attorney Registration and Disciplinary Committee (“ARDC”).
Further, upon the Honorable Judge’s request for a report concerning the
investigation of Winters, neither Frooman nor Miller found ethical violations or
criminal activity of Winters to report to the Honorable Judge. See id. para. 2. At that
time, however, Frooman and Coleman had had in their possession for well over two
years the 38,000+ documents that they now claim form the basis of Winters’ present
prosecution.
17
and conclusions by the Honorable Judge during the Hearing and Frooman’s
58. During the Hearing, the Honorable Judge stated that Winters had
certainly violated the Code of Professional Responsibility and that the Honorable
Judge had spoken with former United States Attorney, Miller, about Winters’
Union of United States, Inc., 466 U.S. 719 (1980), “that judges acting to enforce
the Bar Code would be treated like prosecutors . . . .” Id., at 734–37. See also,
Forrester v. White 792 F.2d 647, 659-60 (7th Cir. 1986)(Posner, J., dissenting);
60. The nature of the Honorable Judge’s actions against Winters were
instant case because the Honorable Judge had already recused himself for bias
against Winters. Consequently, being under taint of bias the Honorable Judge
was without authority to place any comments on the record concerning Winters
or his case.
23 The Honorable Judge states that he spoke to the former United States
Attorney, Miller, during the Paul E. Palmer trial, case # 01-20041 in May 2002. See
Frooman’s Informational Notice of 17 August 2006.
18
objectively unreasonable for the following reasons:
63. Neither the Honorable Judge, nor former United States Attorney Miller,
nor Frooman have filed any complaint with the Illinois Attorney Registration and
Honorable Judge during the Hearing as unethical and used by the Honorable
Winters.24
64. Winters objects to the Honorable Judge’s reason for recusal at the Hearing
65. During the Hearing the Honorable Judge repeatedly emphasized that he
lacked any recollection of Winters from the time of the Palmer trial in May 2002
until 17 August 2006 when Frooman filed her Informational Notice. The record,
66. The record shows that during the pretrial proceedings and the trial of
Patridge during June 2005 (see United States v. Patridge, Case # 04-20031
Central District of Illinois), the Honorable Judge made at least three references to
24 But see infra app. 6, for the Honorable Judge’s direct admonition to attorneys
Frooman and Taylor, Barringer and Winters concerning their affirmative, mandatory
duty to report another attorney’s unethical behavior to the ARDC under the Himmel
doctrine. See In re James H. Himmel, 125 Ill. 2d 531; 533 N.E. 2d 790.
25 During the Hearing the Honorable Judge, however, recited the statements of a
witness concerning Winters of over four years ago at the Paul E. Palmer trial. See
Paul E. Palmer Trial, case # 01–20041 (May 2002). But the Honorable Judge stated
in the Hearing that he could not possibly have remembered the Defendants. Ms.
Frooman refreshed my recollection of Winters and, as a result of that, I have recused
myself.
26 See infra app. 7, for indication from the record that the Honorable Judge
retained Winters in his thoughts at least throughout 2005 and until Winters’ first
arraignment of 15 May 2006.
19
Winters revealing his present conscious bias against Winters:
Winters takes the stand on behalf of Patridge and invokes the Fifth, Winters can
be taken out the back door, i.e., jailed for contempt; and further stated to
Winters that Winters may soon be tried before the Honorable Judge, just as
Barringer’s client, Patridge, is now being tried. See Transcript of Hearing Before
68. In response to Winters’ Motion for Dismissal for Selective and Vindictive
69. During the Hearing the Honorable Judge repeatedly emphasized two
things: that no thought of Winters had crossed his mind since the summer of
Winters.
70. Winters further objects to the Honorable Judge’s reference at the Hearing
to the case of Paul Palmer (see U.S. v. Palmer 01-20041 ) as though relevant to
There is no relevance; the operative facts associated with the two cases are
71. The comments of the Honorable Judge, made during the Hearing in
justification of his bias toward Winters, further confirm the Honorable Judge’s
vindictive, selective, and persistent demand for Winters’ prosecution. After citing
20
trial, the Honorable Judge stated that he certainly found those witnesses in Paul
August 2006.
72. The Honorable Judge’s opinion comments placed on the public record,
the witnesses’ credibility in the Palmer trial are the exclusive domain of the jury
73. Winters further objects to the Honorable Judge placing his opinion of legal
conclusion on the record that the Appellate Court will deny Winters’ appeal—filed
74. Winters further objects to the Honorable Judge’s ruling to continue the
case, for the Honorable Judge lacked authority to make any rulings respecting
fundamental rights, i.e., rights of due process and rights under the Speedy Trial
Act. Indeed, any ruling made by the Honorable Judge would violate Winters’
75. Winters further objects to the Honorable Judge’s stated reasons for the
21
continuance delay—i.e., that Hills’ had not yet retained counsel27 and that another
judge had not yet been assigned to Winters’ case since the Honorable Judge’s
recusal28—because these reasons are in error as a matter of fact and do not meet
76. These reasons are error of fact because the cause of the continuance and
the delay resulted from the Honorable Judge’s decision to preside over Winter’s
case after unjustifiably insisting upon Winters’ investigation and pressing for
and the Honorable Judge’s failure to timely disclose bias and disqualify himself
77. Given the facts, no other reasons are possible. Any delay and continuance
was not the result of any action of any defendant in this case. No defendant
moved for or, otherwise, by their actions necessitated the Court’s continuance of
23 August 2006.30
78. The Honorable Judge’s continuance on the Court’s own motion and the
resulting delay has further exacerbated violations of Winters’ rights under the
unintentional is of no concern for purposes of the Speedy Trial Act because the
controlling factor in this instance is that the delay in violation of the Speedy Trial Act is
not attributable to any act or conduct of Winters, or Tylman, or Hills. See infra app. 8.
22
Speedy Trial Act.
79. Winters further objects to the Honorable Judge’s continuance, on his own
motion, because it extended his continuance that he had granted on 14 July 2006
due to congestion of the Court’s calendar, as unjustifiable under the Speedy Trial
Act.
80. On 14 July 2006, the Court stated the following but provided no reasons as
justification for the continuance granted that day: that the continuance serves the
ends of justice, and that the government has a right to a speedy trial also.31 At the
Hearing (23 August) the Honorable Judge stated the ends of justice findings are
served which outweigh the best interests of the public and the defendants, all in
violation of the Speedy Trial Act resulting in a violation of all Defendant’s rights
81. Winters further objects stating the Honorable Judge erred as a matter of
law by making the ruling on the continuance at the hearing because the
82. The Honorable Judge errs, however, because the ends of justice do not
fundamental rights; and because the Court failed to place on the record a precise
statement defining the ends of justice that were served by the Court’s ruling as
required by 18 U.S.C.A. 3161 (h) (8) (B) i–iv. See Hearing Before the Honorable
31 Winters fails to understand the rationale for this reason except to observe that the
Honorable Judge may have been claiming a right for the government to try the case of
United States of America v. Barry L. Williams, 2:06 CR 20018. The Honorable Judge
had, on 26 May 2006, scheduled to commence the Williams case on the same date, 24
July 2006, as the case herein before the Honorable Judge, with defendants in both cases
represented by the same public defender. See for specific facts, Jurisdiction
Memorandum of Appellant Brent Winters, United States of America v. Brent A. Winters,
case # 06-3256 (7th cir.).
23
Judge McCuskey of 23 August 2006.
83. According to the statute, the Court, in making an ends of justice finding,
can only take into consideration the defendant’s rights and the public good; the
The defendant’s rights, however, outweigh the public good where the two conflict.
See U.S. v. Zedner 126 S. Ct. 1976; 164 L. Ed. 2d 749; 2006.32
should have been granted because the Speedy Trial Act requires that reasons for
any continuance must be precisely set forth in the record or the continuance will
not be so exempted from calculations for purposes of the Act. Court congestion
does not qualify as a reason under the Act. See 18 U.S.C.A. 3161 (h) (8) (B) i–iv.
[The Court must determine w]hether the continuance was granted for an
“inappropriate” reason, such as general congestion of the court’s calendar
or lack of diligent preparation or failure to obtain witnesses on the part of
the government’s attorney. No continuance granted on such grounds will
qualify as excludable.33
71. Failure to comply with the time limit requirements of the Speedy Trial Act
States v. Angelini 553 F.Supp. 367 (D. Mass., 1982), affirming on other grounds
(1986).
24
678 F.2d 380 (1st cir. 1982).34
during the Hearing that he would talk to all of the judges of Illinois’ Central
assigning any judge to Winters’ case following the Honorable Judge’s recusal,35
whom a case has been assigned, the case shall be assigned (or reassigned)
case that the Honorable Judge may have had with other prospective judges to be
25
assigned to Winters’ case as impermissible error.
75. During the Hearing the Honorable Judge, however, belabored his
desire to predispose and influence the succeeding judge rather than letting the
involvement.
76. By emphasizing for the record that he (the Honorable Judge) will
interview the three available Judges and take cognizance of their schedules; and
by stating that he had not yet assigned a judge because he, as well as the
Honorable Judge Baker and the Honorable Judge Mihm, had been on vacation, it
appears that the Honorable Judge was attempting to justify his intent to speak to
77. Winters, however, respectfully objects, because 28 U.S.C. rule 40.1 (b) and
(c) do not apply to cases of judge disqualification and recusal. See 28 U.S.C. rule
40.1 (a).
CONCLUSION
WHEREFORE, due to the above noted errors, which are not harmless,36 Winters
objects and states that he has been permanently prejudiced. Winters files this
Claim of Error and Record of Objections with all respect due to and in the
36 See Harrison v. McBride, 428 F.3d 652, 668 (7th Cir. 2005).
26
APPENDICIES
APPENDIX—1
—Appended to Footnote 1—
During the past six years or more years Winters has referred those pressing
him for tax advice to competent counsel. In some instances, circumstances,
practicality, and duty required that Winters assist those targeted or otherwise
pursued by the IRS.
On 5 January 2004 and 15 January 2004, during Winters’ representation of
Denny Patridge (“Patridge”), Winters petitioned the IRS due process hearings
officer, David P. Schermann (“Schermann”), for a stay of proceedings pending
conclusion of IRS agent Bernard Coleman’s (“Coleman”) criminal investigation of
Patridge; because the government had placed Patridge in real, appreciable
accusatory danger, entitling Patridge—according to the findings of the Supreme
Court—to Fifth Amendment protection. See, e.g., Schmerber v. California, 384
U.S. 757 (1966).
During the course of the Patridge trial, evidence emerged showing collusion
between the IRS hearing officer, Schermann, and IRS agent Coleman aimed at
using Schermann’s administrative IRS court to extract additional information
from Patridge to use against him in a criminal prosecution; thereby unlawfully
circumventing Patridge’s Fifth Amendment rights.
Winters objected to this abuse of civil process by letter to hearing officer
Schermann. Officer Schermann then consulted with agent Coleman, and he and
agent Coleman backed down: officer Schermann granted Patridge’s request for a
stay of his due process hearing pending the outcome of any criminal
investigation, stating that Coleman gave him permission to grant the stay.
In retaliation, AUSA Frooman and agent Coleman sought and obtained an
indictment against Mr. Patridge—by less than Honorable means—basing charges
of obstruction of justice upon Patridge’s lawful request for a due process hearing.
See supra paras. 19–21 and accompanying notes.
27
On behalf of four other clients (two sets of husband and wife), Winters had
exhausted, without success, every possible avenue to arrive at a reasonable
agreement with IRS auditors. Knowing that the IRS had used their whipsaw tax
as an excuse to unlawfully double and triple or quadruple the tax on his clients,37
Winters petitioned Congressman John Shimkis on behalf of his first set of clients
and petitioned Congressman Timothy Johnson on behalf of his second set of
clients. After independent investigation, both Congressmen, acknowledging that
Winters’ clients’ disputes were in good faith, invoked the federal Taxpayer
Advocate Board to assist them in resolving their constituents’ problems.
With these Congressmen’s assistance, the IRS’s tax assessment on one set of
clients was corrected and resolved decidedly in Winters’ client’s favor, i.e.,
according to law. The IRS’s assessment on Winters’ other set of clients, however,
was not resolved until 5 September 2006, in the government’s favor, i.e., Winters’
clients paid at least ten times the amount that they could have possibly owed—
according to Winters’ clients and depending upon which accountant Winters
consulted.
IRS agent-auditor Mark Miller remarked to Winters following Winters’ and his
clients’ petition to Congressman Timothy Johnson, “We’ve never had a taxpayer
request assistance from a congressman before.” Winters believes that the
government’s investigation and indictment was motivated, in substantial part, in
vindictive retaliation for exercising the right of petition on behalf of his clients.
37 See generally Post Trial Hearing in the case of Denny Patridge of 8 May 2006,
during which the Honorable Judge acknowledges at least five times that IRS auditor
Mark Miller’s (“Miller”) testimony revealed that the whipsaw tax assessment is a
grossly exaggerated assessment levied against taxpayers personally. It unlawfully
calculated as the sum of the following: the assessment that the IRS has levied
against all closely held corporations, trusteeships, and partnerships of which the
taxpayer holds any control or an interest plus that same income assessed against
the taxpayer personally. Federal law forbids assessment or collection of a tax that is
not due and owing.
As was established by government testimony at the Patridge trial, the whipsaw
assessment is unauthorized under any statute, regulation, or court finding. Further,
the Honorable Judge firmly stated that that he will not permit the government to
use the whipsaw tax amounts against Patridge as a basis for sentencing and as
unlawfully proposed by AUSA Frooman. Because no regulation or law authorizes the
whipsaw assessment and because no IRS agent or clerk is authorized to act outside
of precise regulatory language, the whipsaw assessment is unlawful.
28
See U.S. CONSTI. amend. 1; Schneider v. Smith, 390 U.S. 17, 88 S.Ct. 682 (1968).
Included in the right of every person to petition for redress of grievances, is the
right of one person to refer another to legal counsel. See United Mine Workers v.
Illinois State Bar Ass’n, 389 U.S. 217, 88 S.Ct 353 (1967). See also Ohralik v.
State Bar, 436 U.S. 447, 98 S.Ct. 1893. The Supreme Court has found the right to
petition for redress of grievances to be a lawful defense to criminal actions and to
not be restricted. See DeJonge v. Oregon, 229 U.S. 353, 57 S.Ct. 255 (1937);
Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct 680 (1963).
Winters contends that the foregoing joint prosecutorial acts initiated and
maintained by the Honorable Judge, Miller, Frooman, and other IRS agents and
employees known and unknown were aimed at chilling Winters’ sworn duty as an
attorney zealously represent the interest of his client by freely petitioning the
government for redress of grievances.
APPENDIX—2
—Appended to Footnote 16—
38 Coleman’s supervision was loose at best because even though supervising agent, he
was absent, at various times from the place to be searched for at least five or more hours during
the day of the Search in search of a valid warrant. While Coleman was absent in search of a valid
warrant, Coleman’s agents secured and held all offices on the premises; opened and labeled
drawers and desks during Coleman’s presence and in his absence. Coleman filed to separate
searches between invalid warrants as required by law.
29
38,000+ documents,39 including but not limited to the following items unrelated
to the alleged subject of the search and seizure: $161.00 petty cash, miscellaneous
office supplies, photographs and pictures, five computers (one of which has never
been returned), blank videos from Vidpro Productions, blank State of Illinois
forms and blank insurance forms. Also seized were attorney Winters’ clients’ files
and documents in drawers and on computer hard drives. Winters or his client’s
files were not the objects of or referred to because the warrants contained no
attachment of list of items to be seized.
When the agents departed at approximately 10:30 p.m. the night of the Search,
the offices and drawers of the building at 913 17th Street were as barren—said one
of the proprietors—as the inside of Betty Lou Who’s house after the Grinch stole
Christmas. See In Re Matter of the Search of 913 17th Street, Charleston, Illinois
245 F. 3d 978 (argued 13 February 2001; decided 5 April 2001).
On appeal of the Honorable Judge’s Order, the Seventh Circuit Court of
Appeals reserved judgment on the suppression of evidence concerning this
Search and seizure, holding that Defendants’ retain the right to post indictment
motions for suppression “pursuant to Rule 12 of The Federal Rules of Criminal
Procedure . . . to not only secure the return of the seized property, but also to
challenge the constitutionality of the search itself.” See id. Winters does not waive
this right.
Winters has a proprietary interest in the Search because Winters’ office was in
the building searched, agents entered Winters’ private office, Winters’ clients’
files were searched and seized, the computer belonging to Winters’ part time
secretary (Hills), which contained confidential documents belonging to Winters’
clients and unrelated to anything referenced by any of the three attempted
warrants,40 was seized and taken from her office. Neither attorney Winters’ name,
office, papers, files or effects nor Hills’ name, office, papers, files or effects were
39 The government affirms at least 38,000 documents, but defendants estimate that the number
of documents taken is closer to 50,000. It is impossible for defendants to be precise because the
government has not returned paper copies.
40 See Disc # 171 of documents taken during the Search from the private office and computer of
attorney Winters’ part time secretary, Hill’s, copied by the government, and returned to Tylman
in November 2000. The documents copied on disc are small an sometimes difficult to read. Only
recently, after more than six years, have Winters’ clients’ documents been uncovered.
30
listed on the warrants, because the warrants contained no list of items to be
seized. See id. By the ruling of the Appellate Court, the suppression issue is now
appropriate because it remains in dispute. See id.
APPENDIX—3
—Appended to Footnote 15—
Because Coleman and his agents broke and entered Street unexpectedly,
circumstances necessitated that upon Tylman’s on-the-spot request for
immediate counsel Winters acquiesced to assist, and acted as Tylman’s attorney
concerning the Search throughout the remainder of the day of the three
attempted warrants, the Search, and execution of a general seizure. Throughout
the day-long securing of the building at 913 17th, much of it in the absence of
supervising agent Coleman, Tylman and Winters objected to persistent attempts
of warrantless searches.
Upon Coleman’s presentment of each of the three alleged warrants to Tylman
(the third warrant was verbal), Winters respectfully objected to their
constitutional insufficiency. Coleman’s alleged third warrant, late in the day, was
merely verbal by telephone through his agent on the scene, for Coleman was
absent, claiming he had the warrant at another location.
Now late in the day, Coleman and his agents felt pressed to commence the
Search because federal and constitutional law limits Searches to daytime. The
agents, therefore, forfeited the legal niceties of searching for any particular items
(they had no list of items to be seized as required by law) and began seizing and
boxing items indiscriminately without supervising agent Coleman’s presence and
without presenting a written warrant.
Moreover, in order to fulfill his duty to preserve Tylman’s, McNutt’s, Woolen’s,
and Hills’ rights under the Fourth Amendment, Winters persistently and politely,
but firmly demanded that Coleman remove himself and his agents from the
premises in that they were trespassing without a valid warrant. Winters kindly,
respectfully, and persistently reminded Coleman that by seeking two more
warrants, Coleman had admitted that his earlier warrants were unconstitutional.
31
Further, having admitted that the warrant Coleman had depended on to break
and enter the premises was invalid, Coleman and his agents were trespassing
and, therefore, while Coleman sought a valid warrant all agents must leave the
premises, but Coleman would not.
Not only were the three warrants unconstitutional on their face but none of the
warrants mentioned or otherwise authorized any search of the offices of McNutt,
Woolen, Hills, Vidpro Productions, WFLA, or attorney Winters.
Although Winters persisted in reminding Coleman that he not search office
spaces of those persons and businesses not drawn on Coleman’s nearly year-old
diagram or listed on the face of the warrant, Coleman insisted in relying upon his
stale diagram to conduct and direct his Search. Winters admonished Coleman
repeatedly throughout the day of the Search that the offices in the building are
separate offices for separate businesses not alluded to in any of the three
purported warrants.
Winters also appealed to Coleman reminding him that if stayed out of the
offices and files of McNutt, Woolen, Hills, and Winters it could only help him
achieve his goals, but if he violated these other offices, it could create potential
difficulties for his search and seizure. Coleman chose to ignore Winters’
information and violated the proprietary interests of McNutt, Woolen, Hills,
Winters, and Tylman (Vidpro and WFLA), by entering and searching their
separate offices and businesses and seizing their papers and effects without
constitutional warrant.
The Seventh Circuit Court of Appeals substantiated Winters’ warning to
Coleman that his warrants were constitutionally wanting. The Appellate Court
referred to Coleman’s presentment of the first warrant without any attachments
as a naked warrant, his presentment of the second insufficient warrant was as
good as naked because the attached list of items to be seized was copied from a
search approximately two-hundred miles away. See In Re Matter of the Search of
913 17th Street, Charleston, Illinois 245 F. 3d 978 (argued 13 February 2001;
decided 5 April 2001).
Frooman was the supervising government attorney responsible for Coleman’s
actions before, during, and after preparation and execution of the constitutionally
32
insufficient warrants.
APPENDIX—4
—Appended to Footnote 19—
In Harrison, the Court confirmed the Indiana Supreme Court’s “view that the
abuse of discretion . . . occurs when the trial court ‘expresse[s] an opinion on the
merits of the controversy.’ ” The Honorable Judge’s comments made while
presiding over the Hearing, are now part of the public record and available for all
to view, while other documents evidencing ex parte communication between the
United States Attorney’s office, Frooman, and the Honorable Judge remain
sealed and unavailable to the public, to Winters, and to the other defendants in
violation of fundamental due process and the right to a public trial, including
pretrial proceedings.
“Litigation is a public exercise; it consumes public resources. It follows that in
all but the most extraordinary cases—perhaps those involving weighty matters of
national security—complaints [briefs and motions and responses] must be
public.” Levenstein v. Salafsky et al 164 F. 3d 345, 1998; See U.S. CONSTI. art. 6.
By no stretch of logic or reason can the instant case be made to fall into the
category “involving weighty matters of national security.” Id.
In In Press Enterprise Co. v. Superior Court, 464 U.S. 501 at 510, 104 S.Ct. at
819, at 824, 78 L.Ed. 2d 629, at 683 (1984), the court held that the right to a
public trial applies to pretrial proceedings as well as the trial itself; and that
closure of any portion of pretrial proceedings placed on the record, or the
interests that would justify hiding that specific portion of the pretrial proceedings
from public view, are not in the interest of Freedom of the Press or Freedom of
Speech. Any sealing of documents of court documents strikes at the foundation of
free speech a free press, and the indispensable feature of our adversarial
tradition. Without openness, a genuine adversarial process is prevented, keeping
truth from its best opportunity for being laid bare. See id.
The court further found that a defendant’s Sixth Amendment right to a public
trial is coextensive with the public’s First Amendment Right of their freedom to
speak and laid down a precise regiment for courts to follow before hiding any
33
portion of the record from public view.
The presumption of openness may be overcome only by an
overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that
interest. The interest is to be articulated along with specific findings
specific enough that a reviewing court can determine whether the
closure order was properly entered.
Id. See also Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed. 2d 31
(1984). The Court has neglected this regimen in the instant case. Winters objects.
APPENDIX—5
—Appended to Footnote 17—
34
insufficient warrants, Coleman took further extraordinary steps to create the
appearance of a constitutional search by belatedly filing with the Court, on 19
April 2000, an affidavit attempting to correct the mistakes that took place on 31
March 2000. See Affidavit of Coleman Under Penalty of Perjury, executed on the
19 April 2000.
Winters continues to contend—as he persistently and politely did to Coleman
throughout the day of the Search—that because the supervising agent, Coleman,
and his armed agents entered the building at 913 17th Street under the mere color
of warrant and a constitutionally stale diagram (approximately eleven months old
during which time the entire building had been remodeled, four new offices
added with four distinct businesses occupying them) they were without authority
to remain on the premises and to secure the building inside and out for upwards
of at least seven hours while Coleman departed to fetch a second, and again
departed to seek a third warrant.
Winters also contends that because Coleman abandoned the first two warrants
as constitutionally insufficient and failed to provide a third providing only a
verbal assurance through one of the agents in his absence, the ensuing Search
was warrantless.
Moreover, Coleman’s departure to seek a second and then a third warrant were
further admissions that the first “warrant” by which Coleman and his agents
entered the building was constitutionally wanting and, therefore, without
authority. Consequently, having entered the premises without a valid warrant,
Coleman and his agents were constitutionally unjustified in securing the
premises inside and out while they sought a second and then a third warrant.
Once Coleman admitted the constitutional insufficiency of the first warrant in
word (by admitting the first warrant was constitutionally wanting) and by deed
(traveling to secure a second warrant), he was obliged to gather his agents and
retreat from the premises in respect of law. Coleman chose, however, to persist in
trespass.
35
APPENDIX—6
—Appended to Footnote 25—
APPENDIX—7
—Appended to Footnote 27—
36
04-20031, in the Central Federal District of Illinois, during June 2005, and in
response to Patridge’s attorney’s (Barringer) disclosure to the Honorable Judge
that Patridge intended to call Winters as a witness on his behalf, the Honorable
Judge called Winters a non-credible witness.
The Honorable Judge continued stating that they (attorney Barringer and
Patridge) can go read the transcripts for themselves—referring to the transcripts
of the hearing before the Honorable Judge In the Matter of the Search of the
Office of Ken Tylman, Worldwide Financial Services, 913 17th Street,
Charleston, Illinois 61920, para. 10, during which Winters testified.
On 24 June 2005, during the Patridge trial and over the objections of
prosecutorial threats of Frooman, Winters offered to appear as a witness for his
client, Patridge, indicating to the Court that he does not believe that federal case
law affords a “blanket fifth” (see Brent Winters’ Motion For Order of Protection
of 24 June 2005, dkt. # 138). In note 1 Winters states: “As to testimony, Winters
does not intend a claim of “blanket” Fifth Amendment protection, that is to say,
Winters will listen to each and every question posed and assert the Fifth where
applicable.” Id. (underlining in original). In other words, Winters recognized that
since assertion of Fifth Amendment is on a “question-by-question basis,” as a
matter of law it can only be asserted under oath. Winters informed the Court that
he is not a recalcitrant witness, but also reserved his rights under the Fifth
Amendment. Id.
In his filing Winters sought to inform the Court “frankly” and directly of his
position. At that time, however, Winters, did not realize that the Honorable
Judge had placed Winters in a position of “real accusatory danger” by initiating
Winters’ prosecution and, further, was responsible for placing and keeping
Winters in real accusatory danger, necessitating Winters’ reservation of his rights
under the Fifth Amendment, and placing Winters in danger of incarceration for
contempt in the event that the Honorable Judge disagreed with Winters as a
matter of law concerning Winters’ invocation of Fifth Amendment protection
concerning any particular question directed to Winters. Id.
It is Winters’ sincerely held belief that he stood under real and “appreciable
37
accusatory danger” as that phrase is defined and applied to the right to invoke
Fifth Amendment protection. At that time, however, Winters did not realize that
the Honorable Judge participated in the prosecution that had placed Winters in
appreciable accusatory danger. Therefore, the Honorable Judge made an error of
law by granting “blanket Fifth” Amendment protection to Winters.
In response to Winters’ reservation of Fifth Amendment protection concerning
any particular question, the Honorable Judge began by reading negative
comments into the record much as he did in the Hearing. See Transcript of
Hearing of 24 June 2005, United States v. Partridge, case # 04-20031. Then the
Honorable Judge asked Frooman that if winters took the stand for Partridge
would she take the position that the scope of questioning on cross-examination
would be unlimited? Frooman answered, “yes.” Then the Honorable Judge
commented that if Winters testifies for Patridge and decides to invoke Fifth
Amendment protection as to any particular question, we can take him out the
back door.
Still again, the same day (24 June 2005 during the trial of Patridge), the
Honorable Judge—referring to Winters’ coming indictment—stated to Winters
that Mr. Winters may soon be back before the Honorable Judge with Mr.
Barringer representing him. See id.
APPENDIX—8
—Appended to Footnote 31—
38
cases would generate more attorney fees.41 By filing a continuance for less than
legally justifiable reasons, not only did Taylor violate the Defendants’ rights to a
speedy trial under the Speedy Trial Act and the Sixth Amendment, Taylor also
filed his motion for continuance without consulting with other defense counsel
and against the express, written demand of his client, Tylman, to not forfeit any
of his (Tylman’s) rights.
Nevertheless, the Court granted Taylor’s motion for continuance without
justification and over the prior instructions and objections of Tylman and in
violation of the Speedy Trial Act. This Act requires that the Court place specific
justification for a continuance on the record, but Taylor provided none and the
Court did not place any on the record. See 18 U.S.C. 3161 (h)(8)(A). The Supreme
Court’s finding on this point is clear and unambiguous: the Speedy Trial Act
requires precise and express findings. The Court’s failure to place these on the
record is “not subject to harmless-error review.” See Zedner v. United States 126
S.Ct. 1976; 164 L.Ed. 2d 749; 2006 U.S.
APPENDIX—9
—Appended to Footnote 20—
39
the judicial case-deciding process. “It is unsurprising, then, that this court and
other courts have repeatedly held that . . . judges performing the purely
prosecutorial functions involved in initiating criminal prosecutions” are not
judicial acts. Barnes, 105 F.3d at 1118; Sevier v. Turner, 742 F.2d 262, 272 (6th
Cir. 1984); Lopez v. Vanderwater, 620 F.2d 1229, 1235 (7th Cir. 1980) (emphasis
added).
s/Brent Winters____________
BRENT WINTERS
Law Office of Brent Winters
11318 Via Vista
Nevada City, CA 95959
Ph. 217-549-4050
Fax 530-265-6564
E-mail:
commonlawyer@infostations.net
40
CERTIFICATE OF SERVICE
Carol Disen, Beckett & Webber PC, 508 S. Broadway, PO Box 17160, Urbana, IL
61803-7160, Carol@beckettwebber.com
s/Brent Winters____________
BRENT WINTERS
Law Office of Brent Winters
11318 Via Vista
Nevada City, CA 95959
Ph. 217-549-4050
Fax 530-265-6564
E-mail:
commonlawyer@infostations.net
41