Petition for Writ of Certiorari — Damion Hardy, Petitioner v. United States

Supreme Court briefFeb 7, 2018

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No. 17-________

________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________

DAMION HARDY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

________________________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

________________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

________________________________________________________________________

Brendan White

524 East 20th Street, #6D

New York, NY 10009

(646) 303-0267

brendan@whiwhi.com

Attorney for Petitioner

Pursuant to Criminal Justice Act

QUESTIONS PRESENTED

Whether the Court should reject the unduly deferential

standard applied by the Second Circuit with respect to the

competency determination, and should determine whether that

a less deferential standard should be applied?

2. Whether in order to be legally sufficient, evidence of a

racketeering enterprise must demonstrate that the charged

enterprise continued to exist throughout entirety of the

alleged duration?

Whether, as urged in Petitioner’s Pro Se motion, a

defendant

cannot

charged

with

conspiracy

unless

accompanied by a distinct overt act?

4. Whether, as urged by Petitioner Granton, the use of an

anonymous jury violated Petitioner’s Fifth Amendment right to

Due Process and Sixth Amendment right to a fair and impartial

jury?

5. Whether, as urged by Petitioner Granton, the admission of

alleged prior bad acts violated Petitioner’s right to due

process and a fair trial?

Whether, as urged by Petitioner Granton, the district

court’s comments and questioning of witnesses violated

Petitioner’s right to due process?

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceeding in the court whose judgment

is sought to be reviewed were the United States of America

against Damion Hardy and Aaron Granton.

TABLE OF CONTENTS

Page

Questions Presented ....................................... i

Parties to The Proceeding Below .......................... ii

Table of Authorities ..................................... iv

Opinion Below ............................................. 1

Jurisdiction .............................................. 1

Constitutional and Statutory Provisions Involved .......... 2

Statement of the Case ..................................... 4

Reasons for Granting The Petition ........................ 11

Conclusion ............................................... 25

Appendix

Summary Order of the United States Court of Appeals

for the Second Circuit .................................... 1

Order of the United States Court of Appeals for the

Second Circuit Denying Rehearing .......................... 8

iii

TABLE OF AUTHORITIES

Page

CASES

Drope v. Missouri,

420 U.S. 162 (1975) ...................................... 12

Dusky v. United States,

362 U.S. 402 (1960) ...................................... 11

Grunewald v United States,

353 U.S. 391 (1957) ...................................... 23

Newfield v. United States,

565 F.2d 203 (2d Cir. 1977) .............................. 11

United States v. Arenburg,

605 F.3d 164 (2d Cir. 2010) .............................. 12

United States v. Gigante,

166 F.3d 75 (2d Cir. 1999) ............................... 13

United States v. Hardy,

724 F.3d 280 (2d Cir. 2013) ............................... 4

United States v. Morales,

185 F.3d 74 (2d Cir. 1999) ............................... 14

United States v. Nichols,

56 F.3d 403 (2nd Cir. 1995) .............................. 11

United States v Rabinowich,

238 U.S. 78 (1915) ....................................... 23

United States v. Turkette,

452 U.S. 576 (1981) .................................. 14, 18

United States v. Vamos,

797 F.2d 1146 (2d Cir. 1986) ......................... 11, 13

PETITION FOR A WRIT OF CERTIORARI

Petitioner prays for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Second

Circuit in this case.

OPINION BELOW

The

United

States

Court

Appeals

for

the

Second

Circuit, by unpublished summary order, reproduced in the

appendix at App. 1, affirmed the judgment of the United States

District Court for the Southern District of New York.

The

Order of the Second Circuit denying panel rehearing and

rehearing en banc is reprinted in the appendix at App. 10.

JURISDICTION

The initial order of the court of appeals was entered on

August 21, 2017.

The Petitioner timely filed a petition for

rehearing, which was denied by the court of appeals by order

filed

November

2017.

This

petition

for

writ

certiorari is being timely filed within ninety days of the

denial of the petition for rehearing, in compliance with Rule

13.3 of this Court's rules.

invoked under 28 U.S.C. § 1254.

The Court's jurisdiction is

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment V, provides the

following, in pertinent part:

No person shall be deprived of life, liberty,

or property, without due process of law.

United States Constitution, Amendment VI, provides the

following, in pertinent part:

In all criminal prosecutions, the accused

shall enjoy the right to ... an impartial jury.

18 U.S.C. § 4241 provides the following, in pertinent

part:

a) Motion to Determine Competency of Defendant--At

any time after the commencement of a prosecution

for an offense and prior to the sentencing of the

defendant, or at any time after the commencement of

probation or supervised release and prior to the

completion of the sentence, the defendant or the

attorney for the Government may file a motion for

a hearing to determine the mental competency of the

defendant. The court shall grant the motion, or

shall order such a hearing on its own motion, if

there is reasonable cause to believe that the

defendant may presently be suffering from a mental

disease

defect

rendering

him

mentally

incompetent to the extent that he is unable to

understand the nature and consequences of the

proceedings against him or to assist properly in

his defense.

* * *

(d)Determination and Disposition--If, after the

hearing, the court finds by a preponderance of the

evidence that the defendant is presently suffering

from a mental disease or defect rendering him

mentally incompetent to the extent that he is

unable to understand the nature and consequences of

the proceedings against him or to assist properly

in his defense, the court shall commit the

defendant to the custody of the Attorney General.

STATEMENT OF THE CASE

The

charges

arose

connection

with

criminal

activity attributed to a racketeering enterprise called the

“Cash Money Brothers” (“CMB”), that engaged in narcotics

trafficking

and

violence,

including

several

murders,

Brooklyn, New York, and other locations on the east coast.

According to the Government, Petitioner was the leader of the

Cash Money Brothers between 1991 and August, 2004, when he

was arrested along with numerous other members of the alleged

enterprise.

Petitioner was initially arrested on or about August 16,

2004, and was ordered detained since the outset of the case.

Ultimately, he and co-defendant Aaron Granton were charged in

a multiple count indictment alleging numerous racketeering

and narcotics counts.

The ten-year period between initial indictment and

trial was dominated by the question as to Hardy’s competency

to face trial.

By order of September 23, 2004, the district

court ordered that a full psychological examination be done.

Protracted

litigation

and

numerous

additional

forensic

examinations occurred in the following years—including an

interlocutory appeal to the Second Circuit as to whether Hardy

could be administered anti-psychotic medication against his

will, United States v. Hardy, 724 F.3d 280 (2d Cir. 2013)—

with the ultimate result being that on the eve of trial, and

several years after the parties had agreed that Hardy suffered

from paranoid schizophrenia and could not be tried, the

district court changed its mind and concluded that Petitioner

was in fact competent to proceed to trial without being

medicated.

the

In addition to the extensive litigation regarding

issues

surrounding

Petitioner’s

competency

stand

trial, and the potential that the death penalty would be

sought, Petitioner also filed several pro se motions, arguing

among other things that a defendant cannot be charged with

conspiracy unless accompanied by a distinct overt act.

The

district court did not directly address those motions, and

allowed the case to proceed to trial.

Following a four-week trial, the anonymous jury found

all counts and racketeering acts proved against Hardy and

Granton.

Both were sentenced to life imprisonment.

Petitioner raised two issues on appeal, first that

the district court committed reversible error in refusing to

declare Hardy incompetent to stand trial, despite his lengthy

and well-documented history or paranoid schizophrenia and his

present inability to understand the nature of the charges

against him and to assist in his own defense, and second,

that the RICO and RICO conspiracy counts, and all other counts

alleged to have arisen out of racketeering activity, must be

dismissed because the evidence was insufficient to show the

existence of the charged enterprise or that Damion Hardy was

employed by or associated with any alleged enterprise.

Petitioner

supplemental

was

brief,

also

granted

which

permission

raised

the

file

arguments

previously raised in his pro se motions to dismiss in the

district court, on the grounds that .

In rejecting the arguments with respect to Hardy’s

competence

proceed

trial,

the

panel

stated

following, in pertinent part:

“It has long been accepted that a person whose

mental condition is such that he lacks the capacity

to understand the nature and object of the

proceedings against him, to consult with counsel,

and to assist in preparing his defense may not be

subjected to a trial.” Drope v. Missouri, 420 U.S.

162, 171 (1975). To find a defendant competent to

stand trial, a district court must find that the

government has shown by a preponderance of the

evidence that the defendant has “(1) ‘sufficient

present ability to consult with his lawyer with a

reasonable degree of rational understanding’ and

(2) ‘a rational as well as factual understanding of

the proceedings against him.’” United States v.

Morrison, 153 F.3d 34, 46 (2d Cir. 1998) (quoting

United States v. Nichols, 56 F.3d 403, 410 (2d Cir.

1995)); see 18 U.S.C. § 4241(d); Brown v. Warden,

Great Meadow Corr. Facility, 682 F.2d 348, 353–54

(2d Cir. 1982).

“We [will] uphold a district court’s finding

that a defendant is competent to stand trial unless

that finding is clearly erroneous. Where the record

on competency may plausibly be read to indicate the

defendant may not have been competent, we still

defer to the judgment of the district court, which

the

had the benefit of examining the defendant and

hearing from the fact and expert witnesses in

person.” Morrison, 153 F.3d at 46 (internal

quotation marks, citation, and brackets omitted).

“[D]eference is owed to the district court’s

determinations

based

observation

the

defendant during the proceedings.” United States v.

Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986).

Applying those standards here, we find no

clear error in the District Court’s determination.

Hardy does not appear to argue that he lacks the

ability “‘to understand the nature and consequences

of the proceedings,’” and his challenge focuses on

his ability “‘to assist properly in his defense.’”

Hardy Br. 27 (quoting 18 U.S.C. § 4241). As the

District Court observed, however, after being

medicated, Hardy was able to file pro se motions

that “reflect[ed] Hardy’s ability to present

logical (if incorrect) legal arguments in an

articulate manner,” Hardy App’x 211, and his

demeanor

court

significantly

improved.

Additionally, in certain ways, Hardy exhibited a

sophisticated understanding of the dynamics of a

criminal

case,

including

the

advantages

cooperation with the Government. Finally, Dr.

Leanne Preston-Baecht, a psychologist with the

United States Bureau of Prisons—who was assigned to

be Hardy’s primarily clinical psychologist for four

months in 2008 and from November 2011 to December

2014—deemed him competent to stand trial in

November 2014, after he had been receiving

medication for nearly a year (in contrast with Dr.

Preston-Baecht’s 2008 evaluation, undertaken prior

to Hardy’s being medicated, in which she had

concluded that Hardy was not competent to stand

trial).

It is true that the defense expert still found

Hardy incompetent to stand trial—due, primarily, to

Hardy’s still harboring delusions about a supposed

Supreme Court case that had ordered his release

under Ethou law, and Hardy’s insistence that,

consequently, prosecutors would release him if he

spoke to them. Such beliefs were clearly unsound

and may have been a product of mental illness, but

“[i]t is well-established that some degree of

mental illness cannot be equated with incompetence

to stand trial.” Vamos, 797 F.2d at 1150. Moreover,

as noted, Hardy does not argue that he was unable

to understand the nature and consequences of the

proceedings, but argues that he was unable to

assist in his defense. Although Hardy may have

harbored delusional beliefs about a fictional

Supreme Court case, Hardy’s counsel has not

asserted or even suggested that it was not possible

to have Hardy consider and assist with other

defenses.

Even if the question may have been a close one

for the District Court deciding the matter in the

first instance, it bears emphasis that, here, we

are not deciding the matter in the first instance.

Giving the deference due the District Court’s

decision, and reviewing for clear error, the

question presented on appeal is not a close one.

See, e.g., United States v. Gigante, 166 F.3d 75,

84 (2d Cir. 1999) (describing competency review as

“highly deferential,” and observing that choosing

between “two permissible views of the evidence”

does not manifest clear error (internal quotation

marks omitted)).

Accordingly, the District Court did not

clearly err. (Summary Order at 4-5)

The panel also concluded that the evidence as to the

existence of the charged enterprise was legally sufficient,

stating as follows, in pertinent part:

Here, there was sufficient evidence that CMB

constituted

associated-in-fact

enterprise.

Indeed, Defendants do not even dispute that CMB

existed as an enterprise through approximately

1999. Instead, relying on United States v. Morales,

185 F.3d 74, 81 (2d Cir. 1999), Defendants argue

that the enterprise did not continue, as charged in

the indictment, through 2004. In particular,

Defendants emphasize the following points: (a)

Hardy sometimes installed others to run the

enterprise while he was imprisoned and CMB’s

membership changed generally; (b) Hardy also became

a member of another gang, the “Bloods,” in 1999;

and (c) the racketeering acts were committed with

personal motives.

None of those points refutes the existence of

the associated-in-fact enterprise in this case.

Associated-in-fact enterprises need not have a

fixed hierarchy as “different members may perform

different roles at different times.” Boyle, 556

U.S. at 948; see, e.g., Coonan, 938 F.2d at 1560

(rejecting argument that RICO enterprise ceased to

exist upon leader’s imprisonment because “even

while in jail [he] continued to act as leader of

the [enterprise] and the [enterprise’s] criminal

activities

continued

without

significant

disruption”);

cf.

Morales,

185

F.3d

(concluding, upon review of an alleged nine-year

enterprise, that the government “did not present

sufficient evidence to show that the enterprise

continued during the seven-year period . . . [in

which all of] the defendants were incarcerated”).

As for Hardy’s joining the Bloods in 1999, the

evidence indicated that Hardy joined the Bloods

largely as a ruse to manipulate others; in any

event, membership in one group does not disprove

the existence of another group or one’s membership

in, or even one’s leadership of, that other group—

here, CMB.

Finally, even assuming it is correct that CMB

members sometimes acted out of personal motivation,

individuals can act with personal motivation while

being a part of—and acting in furtherance of—an

enterprise. (Summary Order at 6-7)

In addition to the issues raised by Hardy, co-defendant

and co-appellant Aaron Granton raised three issues, in which

Mr. Hardy joined:

1) that the defendants’ fifth and sixth

amendment rights had been violated by the district court’s

granting of the Government’s motion for the trial to be heard

anonymous

improperly

jury;

admitted

that

the

district

court

had

irrelevant

and

unduly

prejudicial

evidence of prior bad acts; and 3) the district court deprived

the defendants of their right to due process through its

improper comments and questioning of the trial witnesses.

Each of these arguments were rejected by the Court of Appeals

in its summary order.

(Summary Order at 5, 7-9)

The Court

did not expressly address the issue raised in the supplemental

brief, but did state that “[w]e have reviewed all of the

arguments raised by Granton and Hardy on appeal and find them

to be without merit.”

that

(Summary Order at 5, 7-9)

In his Petition for rehearing, Petitioner argued

the

panel’s

opinion

conflicted

with

several

other

circuits with regard to both the voluntariness of the guilty

plea and the effectiveness of counsel.

As noted above, the

Second Circuit declined to grant either panel or en banc

rehearing.

REASONS FOR GRANTING THE PETITION

The Court Should Reject The Unduly Deferential

Standard Applied by The Second Circuit with Respect

to The Competency Determination, And Should

Determine Whether That A Less Deferential Standard

Should Be Applied.

As the Court has long recognized, to be competent to

proceed to trial, it is not enough to determine that “the

defendant

oriented

recollection of events.”

402 (1960).

time

and

place

and

has

some

Dusky v. United States, 362 U.S.

Rather, as the Court noted in establishing a

two-pronged test for competency, the defendant must exhibit

“sufficient present ability to consult with his lawyer with

reasonable

degree

rational

understanding”

and

“a

rational as well as a factual understanding of the proceedings

against him.” Id. at 402 (1960); see also United States v.

Nichols, 56 F.3d 403, 410 (2nd Cir. 1995) (applying Dusky

test).

While it is true that in determining competency, the

district court must focus on the defendant’s mental state at

the time of trial, Nichols, 56 F.3d at 410; United States v.

Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986), the court may

nevertheless take into account the defendant’s psychological

history.

Newfield v. United States, 565 F.2d 203, 206 (2d

Cir. 1977).

Moreover, since competency at the time of trial

not

fixed

circumstances

stone,

suggesting

courts

must

remain

“alert

change

that

would

render

the

accused unable to meet the standards of competence to stand

trial.” Drope v. Missouri, 420 U.S. 162, 181 (1975); United

States v. Arenburg, 605 F.3d 164 (2d Cir. 2010) (applying

Drope, and remanding after concluding that district court

committed legal error in applying 18 U.S.C. § 4241).

district court’s application of 18 U.S.C. § 4241 must be

reversed if it “is based on either a clearly erroneous factual

finding or an incorrect view of the law, or if its ruling

cannot be located within the range of permissible decisions.”

Id.

As the Court of Appeals acknowledged in its Summary

Order, the issue regarding Petitioner’s competency for trial

involved a long-term and undisputed serious mental illness

that, at the very least, led him to continue to entertain

delusional beliefs directly related to the case against him

and, necessarily, to his ability to assist in defending

against those charges.

(Summary Order at 4)

Moreover, the

Court of Appeals seemingly recognized that the circumstances

here made the ultimate decision on whether to have the trial

proceed “a close one” for the district court, particularly in

light

continuing

the

competing

nature

expert

his

testimony

delusions,

even

regarding

the

after

being

medicated.

(Summary Order at 4)

Ultimately, however, the

Court of Appeals acknowledged that its own precedent makes

clear that considerable deference must be afforded to the

district

court’s

determination.

(Summary

Order

3-4,

citing United States v. Gigante, 166 F.3d 75, 84 (2d Cir.

1999); United States v. Vamos, 797 F.2d at 1150).

In light of the increased recognition of the role mental

illness can play in the sphere of criminal justice, the

fundamental question of how to determine whether a criminal

defendant is able to assist in his own representation is an

issue of great importance under any circumstances.

It is

particularly so here, where not only was it a close case, and

where there was the highly unusual situation of federal Bureau

Prisons

examiners

having

declared

the

defendant

incompetent to go to trial over an extended period of time,

unlike the scenarios in such cases as Gigante and Vamos.

The

full Court should re-examine whether the existing standard,

which affords great deference to district court judges, is

appropriate.

after

the

Significantly, the decision here came only

judge

who

had

long

determined

Hardy

incompetent passed away, and the judge who took over the case

took a different view, thus highlighting the degree to which

the

nearly

unreviewable

degree

deference

will

depend

principally on the accident of which judge happens to be

assigned to the case.

Such an important determination should

not be left to random fate, and the full Court should make

that clear.

The Court Should Grant Certiorari To Make Clear

That, In Order To Be Legally Sufficient, Evidence

Of A Racketeering Enterprise Must Demonstrate That

The

Charged

Enterprise

Continued

Exist

Throughout Entirety Of The Alleged Duration.

If the lengthy trial showed anything, it was that in

a community plainly overrun by open-air drug dealing and the

inevitable accompanying violence, at any time, any number of

individuals

banded

pendency

the

together

purported

during

enterprise

assortment of criminal activity.

however,

that

the

alleged

commit

14-year

wide

The evidence did not show,

“enterprise”

was

“organization”

functioning as “a continuing unit.”

See United States v.

Turkette, 452 U.S. 576, 583 (1981).

In United States v.

Morales, 185 F.3d 74, 80 (2d Cir. 1999), where the charged

enterprise was not proved to have existed through the entire

period charged in the indictment, the Second Circuit reversed

racketeering conviction on the grounds that a continuing unit

had

not

been

established

beyond

reasonable

doubt,

required under United States v. Turkette.

Here, as in United States v. Morales, the jury was

instructed that it could convict on the RICO counts and other

counts based on racketeering activity only if the specific

enterprise set out in the indictment existed.

(A-265-66; T-

2985-86 (requiring that government prove beyond a reasonable

doubt

with

respect

count

one

“first,

that

between

approximately 1991 and August 2004, an enterprise existed”).)

Likewise, the prosecution acknowledged in its summation that

it was required to prove the existence of a single enterprise

operating

between

1991

and

2004.

(A-264;

T-2776)

The

evidence at trial, however, established at most an assortment

of alliances of convenience among alleged drug dealers and

other criminals, working in their own self-interest, and

often

cross-purposes,

not

the

continuing

“enterprise”

alleged in the indictment.

And to the extent that there was evidence of violent

crime committed in the latter half of the alleged time period,

the evidence showed that any such crimes arose from personal

disputes and efforts to avenge the murder of Petitioner’s

brother.

Ultimately, whatever group may have come into

existence in the early 1990s, during the scourge of crack

cocaine the gripped the community during that time, that group

had long ceased to exist by the late 1990s-early 2000s. Since

that is not sufficient to satisfy to prove the existence of

the RICO enterprise, the evidence was legally insufficient.

In addressing the sufficiency point, the Court of

Appeals stated that “Defendants do not even dispute that CMB

existed as an enterprise through approximately 1999,” and

characterized the Appellant’s argument as being that the

proof only failed to show that the enterprise continued all

the

way

through

2004.

(Summary

Order

This

characterization misstated Hardy’s actual argument, which was

that the charged enterprise never in fact existed, that the

Government sought to conjure out the evidence out of a variety

of groups and individuals working in their own self-interest,

and often at cross-purposes, without ever constituting a

continuing group for RICO purposes.

(Hardy Brf. at 54-57)

Nevertheless, for purposes of this Petition, Petitioner does

emphasize that the Court should grant Certiorari establish

conclusively that the enterprise must have been proven to

exist throughout the entirety of the alleged time period,

even if there was some evidence tending to show its existence

at some points during that time period.

To be sure, there was evidence that in the early 1990s,

when Hardy and some of his friends were teens influenced by

popular culture, they referred to themselves as the “Cash

Money Boys.”

But, as stated in Hardy’s brief, there was no

continuity in that group, and within even a few years, as the

drug business in Lafayette Gardens changed, and as those who

had been part of the original CMB group either left town or

were imprisoned, the various individuals alleged to have been

part of the enterprise worked with any number of different

people in their own efforts to make money or to settle

personal scores.

(Hardy Brf. at 56-57)

The years in the late 1990s were significant, not because

they marked the end of the enterprise, but rather because the

evidence of numerous violent crimes occurring at that time,

could be shown to have arisen at most from personal disputes—

principally the murder of Hardy’s brother Wise—and not from

enterprise-related reasons.

(Hardy Brf. at 57-58)

That the

charged enterprise plainly did not exist by this time was

further demonstrated by testimony regarding Hardy and others

having allegedly become members of the ascendant “Bloods”

gang at around this time.

(Hardy Brf. at 58-59)

While the

Court of Appeals observed that “membership in one group does

not

disprove

the

existence

another

group

one’s

membership in, or even one’s leadership of, that other group,”

(Summary Order at 6), that observation carries less weight

when it is recognized that Hardy’s argument is that the

charged group did not exist at all, not that he could not

theoretically belong to two groups at the same time.

In this context, it becomes all the more problematic

that the Court of Appeals failed to detail the proof that

might

have

demonstrated

beyond

the

conclusory

the

existence

pronouncement

that

enterprise,

“there

was

sufficient evidence that CMB constituted an associated-infact enterprise,” and failed to apply its own precedent in

Morales

properly

conclude

that

the

evidence

was

insufficient as a matter of law as to the existence of that

specifically charged conspiracy.

(Summary Order at 6)

The Court should grant Certiorari to make clear that the

“continuity” requirement in Turkette does in fact require

proof of the existence of the enterprise throughout the

charged time period, and to conclude that such requirement

was not satisfied here.

The Court Should Grant Certiorari To Directly

Address Petitioner’s Argument In His Pro Se Motion

That A Defendant Cannot Be Charged With Conspiracy

Unless Accompanied By A Distinct Overt Act.

In a pro se motion to dismiss the fifth superseding

indictment filed in the district court on March 14, 2014, Mr.

Hardy alleged the following:

My name is Damion Hardy.

This letter is

addressing case 04-cr-00706-FB-2.

If the court

observes the criminal complaint, the court will see

the arrest and the procedure was illegal which in

result makes this whole criminal procedure illegal.

In the case of an arrest, the common practice is

for the procedure to start from the complaint as in

this case.

If the court observes the criminal

complaint the court will see a narcotics conspiracy

from the time period of 1992-2004, which is

basically alleging there were multiple narcotics

acts committed in this one charge, there is no

individual narcotics act or overt narcotics act

listed.

A person has to be arrested for an

individual act or an overt act, not a conspiracy

from one time period to another as in on the

criminal complaint.

As the First Session of the

113th Congress (Public Law 113-1 to 113-13) United

States Code Service Title 18 Part 1 Chapter 19

Conspiracy § 371. Conspiracy to commit offense or

to defraud United States reads: “If two or more

persons conspire either to commit any offense

against the United States, or to defraud the United

States, or any agency thereof in any manner or for

any purpose, and one or more of such persons do any

act to effect the object of the conspiracy, each

shall be fined under this title or imprisoned not

more than five years, or both.” This law applies

to a individual (single) act or a overt act but

also covers this current weird and bizarre illegal

arrest and procedure.

I was arrested for a

narcotics conspiracy from one time to another time

period not a individual (single) act which would

have a specific place, a specific date, and a

specific time meaning location (address), year,

month, day, hour, and minute the alleged crime

(offense) occurred.

A person cannot be arrested for a narcotics

conspiracy ranging from one time period to another

alone.

This charge must be accompanying a

individual act or overt act which would be the

“case,” the narcotic conspiracy ranging from one

time period to another is support for the

individual or overt act which is the “case” as the

narcotics conspiracy ranging from one time period

to another is a “support charge.”

Also a person can be arrested for

multiple individual or overt acts but all or at

least one of those individual or overt acts must be

used or listed in the headline meaning heading of

the complaint for the arrest to be legal, and to

show that’s what the person is being arrested for.

I ask how can the person defend himself adequately

when the person doesn’t know what he is being

charged with because there is no case meaning

individual act or overt act in the criminal

complaint?

As proof I will give this example:

there

are

pretrial

hearings

such

the

identification hearing and the Wade hearing, these

hearing apply to a individual or overt act such as

narcotics possession or sale, how could these

pretrial hearings be conducted in such instance and

situation, the pretrial hearing does not apply to

the support charge, which is a narcotics conspiracy

ranging from one time period to another. This is

why I have been saying I don’t have a case, the

individual (single) or overt act is the “case.” I

was arrested for a simple narcotics conspiracy,

which means the arrest and criminal proceeding

though illegal is limited to narcotics, any RICO or

other charge brought at a later time through

superseding indictments can only be legal if the

arrest is justified and lawful, the arrest being

illegal makes anything that comes after and from

that “poisonous fruit,” fruit from the poisonous

tree as it is ill-gotten and cannot be used.

have been superseded around 7 or 8 times and there

is still no individual narcotics act produced on

any of the court documents or from the government.

I ask this question:

why was I arrested?

This

shows and proves I never should’ve been arrested or

placed in jail. I ask what makes the charges that

was brought after the illegal arrest federal? Had

the Government not arrested me illegally and just

placed me in a federal jail they could not have

tried to make any of these charges that came after

the illegal arrest federal. I was not arrested for

a RICO charge I was illegally arrested for an

illegal narcotics conspiracy ranging from one time

period to another, which is a “support charge.”

There is no act (which is the case) on the

criminal complaint for the charge to support.

Also, as for the U.S.C.S. conspiracy statute, I ask

how can this be applied to the “support charge”?

It cannot be applied to the “support charge.” So,

if the law cannot be applied to a “charge” that the

person was solely arrested for, how could the

arrest be legal? A person would have to be arrested

for a individual (single) narcotics act or a overt

narcotics act that falls within the 5 year federal

statute of limitations then there would have to be

allegations along with evidence that this conduct

was taking place for a certain time period to try

to bring a narcotics conspiracy ranging from one

time to another which is the “support charge.” For

a person to be arrested for a narcotics conspiracy

ranging from one time period to another there would

have to be some sort of government proof (“such as

wiretap, phone call, recorded conversation, etc.)

that two or more are deliberately and explicitly

saying and conspiring to possess, sell, or

distribute narcotics from the year of 1992 to 2004,

then “one or more of such persons do any act to

effect the object of the conspiracy, each shall be

… imprisoned not more than five years.” This must

be listed and established in the heading and body

of the criminal complaint, this proof cannot be

used as discovery material or trial material, this

proof is the cause and basis (base) of the criminal

complaint and arrest.

Furthermore, there is

nothing in the discovery material such as recorded

conversations, phone conversations, or anything

incriminating to dilute the severity of the illegal

arrest.

I was not arrested for a individual or

overt narcotics act but for a support charge which

is illegal. All this proves I never should have

been arrested or put in jail. The conspiracy la

applies to the individual act and the overt act.

This is why I have been saying I do not have a case

because of the illegal arrest, which stems from

there being no case (act) on the complaint which

makes any criminal procedure after that illegal as

everything stems from the criminal complaint, which

makes it ill-gotten, poison fruit, fruit from the

poisonous tree.

I have explained all of this

clearly to the attorneys with no results, as they

cannot execute the clear, legal, truthful procedure

given to them.

For the attorneys can’t adequately defend me

for all they know is trial defense. Furthermore,

on pages 3 and 4 of the criminal complaint, there

are two previous arrest that I am not being charged

with, one from the year of 1993, the other from the

year of 1998. These two previous arrest are on the

criminal complaint illegally and are there for rap

sheet like purposes as the two arrests are not

headlining or in the heading of the criminal

complaint, instead they are in the end of the

criminal complaint close to the conclusion and are

used as examples and the two previous arrests

cannot be used in federal court as they do not fall

under the five year federal statute of limitations.

The federal government and the U.S. Attorney cannot

try to use the two previous arrest with the

narcotics conspiracy ranging from 1992-2004 (one

time period to another) that is on the criminal

complaint to try to establish a pattern of behavior

to justify the illegal arrest as the two previous

arrest on pages 3 and 4 of the criminal complaint

do not fall under the 5 year federal statute of

limitations as I was arrested August 15, 2004.

Furthermore if the court observes the first

criminal complaint and the first indictment the

court will see the faults and discrepancies that

contributes and exposes this illegal criminal

procedure. I have been requesting a copy of these

documents from the attorneys for several years but

have yet to receive them. I filed papers to the

US. Supreme Court which may have been a writ of

certiorari round the time of July 28, 1998, through

September 1998, addressing the issues listed in

this letter.

There papers were granted by unanimous

decision.

The case was decided between July 28,

1998, and July 1999. This is why the U.S. Supreme

Court published in the New York Law Journal and the

Criminal Law Reporter in the U.S. Supreme Court

journal of proceedings section of the publications

that case 04-cr-00706 (EDNY) (FB) is dismissed on

January 8, 2009, and that any pending cases is

dismissed on January 23, 2009.

This information

was published in one of the two publications on one

of the following dates:

January 8, January 15,

January 18, January 23, January 28, all of 2008, in

either volume 2, 2(a), 2(b), 3, 3(a), 3(b), 4, 4(a),

or 4(b), in issue 271 or 217.

I have been

requesting these documents along with others from

the attorneys for several years but have yet to

receive them, as the attorneys can’t carry out the

clear, legal, truthful procedure given to them.

For the attorneys cannot adequately defend me, for

all they know is trial defense. Would the court

obtain these documents and look into all these

matters immediately so I can be released from

prison immediately. (SA 5-11)

Several months later, no action having been taken by the

district court with respect to the motion, Mr. Hardy filed a

substantially identical motion to dismiss the indictment,

accompanied by a memorandum of law in support.

(SA 14-16)

Mr. Hardy citing a number of cases relating to 18 U.S.C. §

371 and its predecessor statutes to argue that a conspiracy

cannot be established pursuant to § 371 without proof of an

overt act.

(SA 14, citing United States v Rabinowich, 238

U.S. 78 (1915); Grunewald v United States, 353 U.S. 391

(1957); and numerous cases related to § 371)

To be sure, Mr. Hardy was not charged pursuant to § 371,

but rather 21 U.S.C. §§ 841 and 846, and other statutes, but

should the Court agree with Mr. Hardy that the principles

governing § 371 properly apply here, either dismissal of some

or all of the counts, or remand to the district court for

further proceedings with respect to the pro se motions and

the documents described in them, would be warranted, for the

reasons urged in the pro se motion, including that 1) the

original arrest was defective for failing to allege an overt

act or a substantive offense in which the existence of an

identifiable quantity of a controlled substance could be

shown, and all related and subsequent counts were likewise

defective; and 2) since no overt act was alleged within five

years of the date of charges being filed, all charges fell

outside the statute of limitations and must be dismissed.

The Court should use this opportunity to address these issues,

and if it agrees with Petitioner, ultimately dismiss the

charges against him.

The Court Should Grant Certiorari With Respect to

The Three Issues Raised by Petitioner and Codefendant Aaron Granton.

a) REVIEW IS WARRANTED AS THE SECOND CIRCUIT

ERRED IN FINDING THAT THE ANONYMOUS JURY DID

NOT VIOLATE PETITIONER’S FIFTH AMENDMENT

DUE PROCESS RIGHT AND SIXTH AMENDMENT RIGHT

TO A FAIR AND IMPARTIAL JURY

This

Court

has

never

expressly

upheld

the

constitutionality of trial by anonymous jury. For the reasons

discussed in greater detail in the Petition of co-Petitioner

Granton, the Court should take this opportunity to address

this

important

issue

and

conclude

constitutional

rights

were

that

violated

the

Petitioners’

the

unwarranted

decision to try them in front of an anonymous jury.

b) REVIEW IS WARRANTED BECAUSE THE DISTRICT COURT

(AND SECOND CIRCUIT) ABUSED ITS DISCRETION IN

ADMITTING OVER PETITIONER’S OBJECTION NUMEROUS

ALLEGED PRIOR BAD ACTS OF THE PETITIONER (ALONG

WITH THE “BAD ACTS” OF OTHER INDIVIDUALS) AND SUCH

ERROR WAS NOT “HARMLESS”; THE EVIDENCE WAS

IRRELEVANT UNDER FEDERAL RULES OF EVIDENCE 401 AND

UNFAIRLY PREJUDICIAL UNDER FEDERAL RULE OF EVIDENCE

403 AND RESULTED IN A DENIAL OF PETITIONER’S DUE

PROCESS RIGHT TO A FAIR TRIAL

To the extent that Petitioner granted raises a

meritorious issue with respect to the evidence of prior bad

acts, such an issue would necessarily benefit Petitioner as

well.

REVIEW IS WARRANTED SINCE THE DISTRICT COURT

MADE IMPROPER COMMENTS AND QUESTIONING OF WITNESSES

BY THE TRIAL JUDGE DEPRIVED DEFENDANT OF HIS FIFTH

AND SIXTH AMENDMENT RIGHT TO DUE PROCESS

As with the above issues, should the Court agree

that Certiorari should be granted with respect to this issue,

would

necessarily

affect

Petitioner

well,

and

therefore urges the Court to grant Certiorari on this issue

as well.

Conclusion

The petition for a writ of certiorari should be granted.

Dated:

New York, New York

February 6, 2018

Respectfully submitted,

Brendan White

WHITE & WHITE

524 East 20th Street

New York, NY 10009

(646) 303-0267

Attorney for Petitioner

Damion Hardy

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.