Petition for Writ of Certiorari — Brent Douglas Cole, Petitioner v. United States

No. ________________

IN THE SUPREME COURT OF THE UNITED STATES

________________

BRENT DOUGLAS COLE, Petitioner

v.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KARYN H. BUCUR, ESQ.

24881 Alicia Parkway, E193

Laguna Hills, California 92653

(949) 472-1092

Attorney for Petitioner

BRENT DOUGLAS COLE

Under Appointment by the Criminal

Justice Act

1

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES .............................................................................. ii

QUESTION PRESENTED .................................................................................. 2

OPINION BELOW .............................................................................................. 3

JURISDICTION .................................................................................................. 3

STATEMENT OF THE CASE ........................................................................... 3

STATEMENT OF FACTS .................................................................................. 4

REASON FOR GRANTING THE WRIT .......................................................... 6

CONCLUSION .................................................................................................. 23

APPENDIX A

Unpublished Opinion dated May 21, 2018

APPENDIX B

Order Denying Petition for Rehearing dated July 10, 2018

i

TABLE OF AUTHORITIES

CASES

PAGE

Ballard v. United States

329 U.S. 187, 67 S. Ct. 261, 91 L. Ed 181 (1946) ..................................18, 19

Bank of Nova Scotia v. United States

487 U.S. 250, 108 S. Ct. 2369, 101 L. Ed 2d 228 (1988) ............. 9, 17-19, 22

Bowsher v. Synar

478 U.S. 714, 106 S. Ct. 3181, 92 L. Ed 2d 583 (1983) ...........................8, 16

Branzburg v. Hayes

408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed 626 (1972) ............................... 11-12

Guam v. Muna

999 F.2d 397, 399 (9th Cir.1993) ..................................................................... 9

Morrison v. Olson

487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed 2d 569 (1988) ............................. 17

Neder v. United States

527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed 2d 35 (1999) ................................... 21

Stern v. Marshall

564 U.S. 462, 131 S. Ct. 2594, 180 L. Ed 2d 475 (2011) ...................8, 16, 17

United States v. Calandra

414 U.S. 338, 94 S. Ct. 613, 38 L. Ed 2d 561 (1974) ............................. 19-20

United States v. Navarro

608 F. 3d 529 (9th Cir. 2010) ................................................................... 20-21

United States v. R. Enters, Inc.

498 U.S. 292, 111 S. Ct. 722, 112 L. Ed 2d 795 (1991) ...........................8, 11

ii

United States v. Stevenson

2018 U.S. Dist. LEXIS 61988 (So. Dist. West Virginia) ........................ 17-18

United States v. Supreme Court

839 F. 3d 888 (10th Cir. 2016) .............................................7, 8, 10, 11, 15, 16

United States v. Williams

504 U.S. 36, 112 S. Ct. 1735, 118 L. Ed 2d 354 (1992) ... 8-11, 15, 16, 18, 19

Vasquez v. Hillery

474 U.S. 254, 106 S. Ct. 617, 88 L. Ed 2d 598 (1986) ................................. 18

FEDERAL STATUTES

18 U.S.C. § 111 ................................................................................................. 3, 4

18 U.S.C. § 924(c)(1)(A) ...................................................................................... 4

28 U.S.C. § 1254(1) .............................................................................................. 3

U.S. CONSTITUTION

Fifth Amendment ............................................................................................ 2, 10

iii

QUESTION PRESENTED

The Framers recognized that, in the long term, structural protections

against abuse of power were critical to preserving liberty. Bowsher v.

Symar, 478 U.S. 714, 730, (1986). The “structural principles secured by the

separation of powers protect the individual as well.” Stern v. Marshall, 564

U.S. 462, 483, (2011).

The question presented in this case is:

Whether the indictment in this case should have been dismissed because

the structural protections of the grand jury designed to safeguard individual

rights and liberties were compromised when the prosecution impermissibly

interfered with the grand jury’s function guaranteed by the Fifth Amendment to

act as an independent investigative body when the prosecution abruptly

prevented a grand juror from asking a question the grand juror deemed

relevant?

Did this interference impermissibly alter the structure of the grand jury

by taking away the freedom given to the grand jury to pursue its investigation

unhindered by external influence or supervision and to make its decision based

on evidence it deems appropriate and to protect individual’s right of freedom

and liberty? Is a constitutionally deficient Indictment structural error?

2

OPINION BELOW

On May 21, 2018, the United States Court of Appeals for the Ninth

Circuit filed an unpublished opinion in United States v. Brent Douglas Cole,

No. 15-10459, affirming Mr. Cole’s convictions. A copy of the opinion is

attached hereto as Appendix “A”. On July 10, 2018, the Ninth Circuit

denied Mr. Cole’s petition for rehearing. A copy of the order is attached

hereto as Appendix “B”.

JURISDICTION

On May 21, 2018, the United States Court of Appeals for the Ninth

Circuit affirmed Mr. Cole’s convictions. On July 10, 2018, the Ninth Circuit

denied Mr. Cole’s petition for rehearing. Jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATEMENT OF THE CASE

On October 2, 2014, Mr. Cole was charged by Indictment with assault

on a federal officer with a deadly weapon which inflicts bodily injury in

violation of 18 U.S.C. § 111(a)(1) and (b) in count 1. In count 2, Mr. Cole

was charged with assault on a person assisting a federal officer with a deadly

3

weapon which inflicts bodily injury in violation of 18 U.S.C. § 111(a)(1) and

(b). In count 3, Mr. Cole was charged with discharging a firearm during and in

relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and 18

U.S.C. § 924(c)(1)(A)(iii). (ER 343-346.)

On February 11, 2015, a jury found Mr. Cole guilty as charged. (CR

64.) On August 28, 2015, the district court sentenced Mr. Cole to a total term

of 355 months. On Counts 1 and 2, the court sentenced Mr. Cole to 235

months on each count to be served concurrently. The district court imposed a

consecutive 120 month sentence on count 3. (ER 47, RT 8/28/15, p. 22.)

On September 8, 2015, Mr. Cole filed a timely Notice of Appeal. (ER

57.)

The Ninth Circuit affirmed his convictions and denied the petition for

rehearing. (App. A, App. B.)

STATEMENT OF FACTS

Mr. Cole was camping on federal land in California. Mr. Cole’s defense

was that he was acting in self-defense during an altercation on his campground

with a federal ranger and a California Highway Patrol officer.

During the grand jury proceedings, an agent testified: A federal ranger

conducted a traffic stop on Mr. Cole’s pickup and he told Mr. Cole that the

road was not open to the public. (ER 8.) Mr. Cole left the area and the federal

4

ranger decided to check out Mr. Cole’s campsite without Mr. Cole present.

Later, when Mr. Cole returned to his campsite, the ranger was there with a

California Highway Patrol “CHP” officer. At the campsite, Mr. Cole identified

himself to the federal ranger as the person that the ranger had earlier contact

with and explained that this was his campsite and that these were his

belongings and that he did not want law enforcement to take his things. The

ranger removed a pair of handcuffs and asked if Mr. Cole was armed. Mr.

Cole said he was armed. Both law enforcement officers drew their weapons

and Mr. Cole drew his weapon. Shots were fired. (ER 8-13.)

A grand juror attempted to ask questions regarding the interaction

between Mr. Cole and the ranger because the grand juror believed the answer

to this question would be “relevant in the fact that when they pulled the arms

[Mr. Cole] felt threatened and that’s why [Mr. Cole] pulled his.”

(ER 20-22.)

The prosecutor interfered with the grand jury’s investigation and

prevented the grand juror from asking a question the grand juror believed was

relevant to the proceedings. (ER 20-22.) Mr. Cole was indicted and eventually

convicted.

5

REASONS FOR GRANTING THE WRIT

Mr. Brent Cole argued in the district court that the Indictment should

be dismissed because the grand jury was prevented from performing its

independent function of deciding whether there was probable cause a crime

was committed when the government instructed and admonished the grand jury

not to consider evidence the grand jury deemed relevant.

During Agent Forristel’s testimony before the grand jury, a grand juror

asked the agent questions relating to whether Mr. Cole felt threatened during

the incident to cause him to draw his weapon. The prosecutor abruptly stopped

the grand juror from questioning and admonished the grand juror that his role

was limited to determine whether or not there is probable cause to believe these

crimes have occurred and it is not the grand juror’s role to consider defenses.

The record shows that this grand juror believed his questions was relevant to

answer whether a crime cognizable by the court had been committed. Supreme

Court authority provides that the grand jury has wide latitude to inquire into

violations of criminal law, no one presides to monitor its proceedings, and the

grand jury may determine the course of inquiry. The Indictment in this case is

not valid and should be dismissed because the grand jury in this case was

unable to perform its independent constitutional function due to the

6

prosecutor’s interference. This interference impermissibly altered the freedom

given to the grand jury to pursue its investigation unhindered by external

influence or supervision and to make its decision based on evidence it deemed

appropriate.

The panel below in this case found: The panel in this case concluded

that “any error in the grand jury proceedings here was rendered harmless

when the petit jury convicted Cole on all three counts”. (App. “A”, p. 2.)

The panel further stated that:

“Cole has not otherwise established that the grand jury’s structural

protections in this case were compromised”. (App. “A”, p. 2.)

However, Mr. Cole can establish the grand jury’s structural

protections designed to protect individual freedom and liberty in this case

were compromised: The grand jury represents a structural protection of

individual rights. United States v. Supreme Court, 839 F. 3d 888, 924 (10th

Cir. 2016.) When the prosecution interfered with the grand juror’s

independent function to investigate whether there was probable cause that a

crime was committed, the grand jury’s structural protection designed to

protect individual rights, freedom and liberty was compromised. “In this

regard, the Supreme Court has recognized that the Framers envisioned that

7

the federal grand jury would possess a broad range of discretion; more

specifically, the Court has held that the grand jury’s function ‘is to inquire

into all information that might possibly bear on its investigation until it has

identified an offense or has satisfied itself that none has occurred.” United

States v. Supreme Court, supra, 839 F. 3d at 925, citing to United States v.

R. Enters, Inc. 498 U.S. 292, 297, 111 S. Ct. 722, 112 L. Ed 2d 795 (1991).

The Framers recognized that, in the long term, structural protections

against abuse of power were critical to preserving liberty. Bowsher v.

Synar, 478 U.S. 714, 730, 106 S. Ct. 3181, 92 L. Ed 2d 583 (1986). The

‘structural principles secured by the separation of powers protect the

individual as well.” Stern v. Marshall, 564 U.S. 462, 483, 131 S. Ct. 2594,

180 L. Ed 2d 475 (2011).

The Ninth Circuit’s decision is in direct contradiction of Supreme

Court authority that provides that structural protections to protect individual

rights, such as freedom and liberty, against the abuse of power are critical to

preserving liberty. Bowsher v. Synar, supra, 478 U.S. at 730. The structure

of the grand jury was purposely created to “remain free to pursue its

investigation unhindered by external influences or supervision so long as it

does not trench upon the legitimate rights of any witness called before it”.

8

United States v. Williams, 504 U.S. 36, 47, 112 S. Ct. 1735, 118 L. Ed 2d

354 (1992).

Even though a petit jury convicted Mr. Cole in this case, “a dismissal

of the indictment will be appropriate only where ‘the structural protections

of the grand jury have been so compromised as to render the proceedings

fundamentally unfair”. Guam v. Muna, 999 F. 3d. 397, 399 (9th Cir. 1993),

citing to Bank of Nova Scotia v. United States, 487 U.S. 250, 257, 108 S. Ct.

2369, 101 L. Ed 2d 228 (1988). Because the proceedings are fundamentally

unfair, prejudice is presumed without a particular assessment of the

prejudicial impact of the errors, and the case will be reversed. Bank of Nova

Scotia v. United States, supra, 487 U.S. at 256-257.

Here, the grand jury’s independence was infringed when the

prosecution hindered the grand jury’s investigative function when it

prevented a grand juror from asking questions of a witness to determine

whether a crime was committed and when the prosecutor admonished the

grand juror that his questions were not relevant and that “it was not your role

to consider” at this point whether Mr. Cole had defenses. (ER 22-24.)

The prosecution’s admonition to the grand juror impermissibly

interfered with the grand jury’s structure designed to protect individual

9

liberty and to function independently from the prosecution to determine

whether there was probable cause to believe that a crime has been

committed. The design and structure of the grand jury is created so that the

grand jury acts independently of the prosecution and the court. Recognizing

this independence, the Supreme Court has said that “the Fifth Amendment’s

constitutional guarantee presupposes an investigative body acting

independently of either the prosecuting attorney or judge…” (Emphasis in

original.) United States v. Williams, supra, 504 U.S. at 49.

The panel found that that Cole has not otherwise established that the

grand jury’s structural protections in this case were compromised. (App.

“A”, p. 2.)

Mr. Cole respectfully requests that this Court should consider granting

this petition for writ of certiorari because he has established that the grand

jury’s structural protections to protect individual rights of liberty and

freedom in this case were compromised: The grand jury represents a

structural protection of individual rights. United States v. Supreme Court,

supra, 839 F. 3d at 924. When the prosecution interfered with the grand

juror’s independent function to investigate whether there was probable cause

that a crime was committed, the grand jury’s structural protection designed

10

to protect individual rights, freedom and liberty was compromised.

“In this regard, the Supreme Court has recognized that the Framers

envisioned that the federal grand jury would possess a broad range of

discretion; more specifically, the Court has held that the grand jury’s

function ‘is to inquire into all information that might possibly bear on its

investigation until it has identified an offense or has satisfied itself that none

has occurred.” United States v. Supreme Court, supra, 839 F. 3d 888, 925,

citing to United States v. R. Enters, Inc., supra, 498 U.S. at 297.

“In carrying out its role in the criminal justice system, a grand jury

‘paints with a broad brush,’ unlike federal courts, it is not bound by Article

III’s case or controversy requirement or by ‘the technical procedural and

evidentiary rules governing the conduct of criminal trials.” United States v.

Supreme Court, supra, 839 F. 3d 888, 925, citing to United States v.

Williams, supra, 504 U.S. at 66-67. The grand jury carries out their

investigative function “free from technical rules” and “it has relatively broad

power to run down available clues and examine all relevant witnesses to

determine if there is probable cause to prosecute a particular defendant”.

(Emphasis added.) United States v. Supreme Court, supra, 839 F. 3d 888,

925, citing to Branzburg v. Hayes, 408 U.S. 665, 701, 92 S. Ct. 2646, 33 L.

11

Ed 2d 626 (1972).

Here, a grand juror in this case, desired to “run down available clues”

and “examine all relevant witnesses” to determine whether there was

probable cause to prosecute Mr. Cole. Agent Forristel testified before the

grand jury. He stated that a federal ranger conducted a traffic stop on Mr.

Cole’s pickup and he told Mr. Cole that the road was not open to the public.

(ER 8.) Later, the ranger arrived at Mr. Cole’s campsite. When Mr. Cole

returned to his campsite, the ranger was there with a CHP officer:

While they were at the campsite, they heard rustling in the bushes.

The ranger identified himself as the police and directed whoever was down

there to identify themselves. Mr. Cole came out from the trees. Mr. Cole

identified himself as the person that the ranger had earlier contact with. Mr.

Cole indicated that this was his campsite, that these were his belongings, and

that he did not want law enforcement taking his things. The ranger removed

a pair of handcuffs from his duty belt. Mr. Cole backed up a little bit and

took kind of an aggressive stance. The ranger asked Mr. Cole if he was

armed. Mr. Cole said he was armed. In response to that, both of the law

enforcement officers drew their weapons. (ER 11-12.)

The officers gave Mr. Cole commands for Mr. Cole to surrender his

weapon. Instead of surrendering his weapon, in a very quick movement, Mr.

Cole drew a silver-colored revolver from his right waist area and fired

multiple rounds at the BLM ranger. Both officers fired multiple rounds at

Mr. Cole. (ER, 13.)

At the end of Agent Forristel’s testimony, a grand juror questioned

Agent Forristel:

GRAND JUROR: Mr. Cole, he met the BLM ranger twice in the one

12

day, but he never met him before?

THE WITNESS: During the day of this incident, he had met him

earlier in the day at the traffic stop. And then a few hours later when the

CHP officer and the BLM ranger were in the campsite working on the

impound of the two motorcycles is when Mr. Cole returned. And so, that

was the second time that --GRAND JUROR: Never met him before that day?

THE WITNESS: I’m not positive on that. I don’t know the answer to

that.

GRAND JUROR: Are there signs on closed roads to say you can’t go

up there, or it’s just common knowledge?

THE WITNESS: I don’t know the answer to that.

GRAND JUROR: This morning confrontation between this BLM,

was it a normal confrontation? Was it friendly? He said, “Hey, listen, you

guys can’t be here. Please go somewhere else.”

PROSECUTOR: I’m going to have to say I don’t know that that’s

relevant.

GRAND JUROR: Okay.

PROSECUTOR: Only because of, you know, the facts, is if it was

13

friendly or not.

I know you have heard testimony from two of the other individuals in

the vehicle with him that morning who indicated the nature of that

conversation, because the agent has no firsthand knowledge of that. I don’t

think it’s a relevant question, and I also don’t know that he’s the best

witness.

So, I would refer you back to the testimony of those two witnesses.

GRAND JUROR: But it would be revellent [sic] -- relevant in the

fact that when they pulled the arms he felt threatened and that’s why he

pulled his.

PROSECUTOR: Yeah. Let me make this clear first of all. Your role

is to determine whether or not there’s probable cause to believe these crimes

have occurred.

GRAND JUROR: I understand.

PROSECUTOR: Not whether or not he has defenses. Right? There

are various defenses that Mr. Cole may have to any charges that are brought.

That’s not your role to consider at this point. It’s whether or not elements -- and I’ll go over the elements crimes – are satisfied and you believe there’s

probable cause to believe that that crime was committed.

14

I don’t want to foreclose the discussion on defenses. And clearly,

there will be discussion once – if the case is indicted and it progress. I’m

sure that’s an appropriate discussion that will be had in court. But at this

point it’s just not relevant.

Any other questions?

Okay. Thank you very much. (Then, the testimony of Andrew

Forristel was concluded.) (ER 20-22.)

Here, the government interfered with the grand juror’s investigation

when the grand juror attempted to ask Agent Forristel questions to help him

determine whether there was probable cause that a crime was committed.

The grand juror wanted to inquire if Mr. Cole had felt threatened by the

ranger when the ranger pulled his gun and “that’s why he pulled his”. (ER

20-22.) Obviously, the grand juror was inquiring whether Mr. Cole pulled

his gun because he already felt threatened by the ranger.

“Just as the constitutional structure provides each of the branches with

the prerogative to check the others, the grand jury, with its robust discretion,

checks the judicial, executive, and legislative branches and represents a

structural protection of individual rights.” (Emphasis added.) United States

v. Supreme Court, supra, 839 F. 3d 888, 924.)

15

“By the Framers’ explicit design, the federal grand jury occupies a

uniquely independent space in the constitutional text, part from the three

branches of government.” United States v. Supreme Court, supra, 839 F. 3d

888, 924, citing to United States v. Williams, supra, 504 U.S. at 47. “The

grand jury occupies a unique role in our criminal justice system” and “under

the constitutional scheme, the grand jury is not and should not be captive to

any of the three branches. (Emphasis added.) The grand jury is a preconstitutional institution given constitutional stature by the Fifth Amendment

but not relegated by the Constitution to a position within any of the three

branches of the government.” United States v. Supreme Court, supra, 839 F.

3d 888, 924. “Not only is the grand jury independent of the three branches

of government, but it serves as a check on them. The separation of powers

doctrine mandates judicial respect for the independence of both the

prosecutor and the grand jury.” United States v. Supreme Court, supra, 839

F. 3d 888, 924.

The Framers recognized that, in the long term, structural protections

against abuse of power were critical to preserving liberty. Bowsher v.

Synar, supra, 478 U.S. at 730. The ‘structural principles secured by the

separation of powers protect the individual as well.” Stern v. Marshall,

16

supra, 564 U.S.at 483. As Justice Scalia stated: “The purpose of

separation and equilibration of powers in general, and of the unitary

Executive in particular, was not merely to assure effective government but to

preserve individual freedom.” Morrison v. Olson, 487 U.S. 654, 727, 108 S.

Ct. 2597, 101 L. Ed 2d 569 (1988) (Scalia, J., dissenting.) “As such a

powerful check on the government, the grand jury is meant to provide

additional protection for the individual for the individual threatened by the

government with a serious deprivation of his liberty.” (Emphasis added.)

United States v. Stevenson, 2018 U.S. Dist. LEXIS 61988, *8 (So. Dist.

West Virginia.)

In this case, the Indictment should have been dismissed since the

structural protections of the grand jury proceedings protecting individual

rights including freedom and liberty from government prosecution have been

so compromised as to render Mr. Cole’s proceedings fundamentally unfair.

Bank of Nova Scotia v. United States, supra, 487 U.S. at 257.

The purpose

of the grand jury was to protect individual freedom “against tyranny and

arbitrary exercise of government power in the criminal justice system”. “A

prosecutor cannot compel an individual to answer accusations of serious,

i.e., felony, criminal conduct other than through the grand jury indictment.

17

This is because, at the founding, liberty was considered to be such a

preeminent value that where it is most seriously threatened, the people

withheld from the government the power to compel an individual to answer

accusations without their consent.” United States v. Stevenson, 2018 U.S.

Dist. LEXIS 61988, *5-*6 (So. Dist. West Virginia.)

The structure of the grand jury was purposely created to “remain free

to pursue its investigation unhindered by external influences or supervision

so long as it does not trench upon the legitimate rights of any witness called

before it”. United States v. Williams, supra, 504 U.S. at 47.

The Supreme Court has found cases relating to grand jury proceedings

fundamentally unfair when there was racial discrimination in the selection of

the grand jurors and where women had been excluded from the grand jury.

Vasquez v. Hillery, 474 U.S. 254, 260-264, 106 S. Ct 617, 88 L. Ed 2d 598

(1986); Ballard v. United States, 329 U.S. 187, 67 S. Ct. 261, 91 L. Ed 181

(1946). In Vasquez, the Court held that “racial discrimination in selection of

grand jurors compelled dismissal of the indictment” and that it could be

presumed that a discriminatorily selected grand jury would treat defendants

unfairly”.

Bank of Nova Scotia v. United States, supra, 487 U.S. at 257.

Also, in Ballard, the Court presumed the defendant was prejudiced, “any

18

inquiry into harmless error would have required unguided speculation.”

Bank of Nova Scotia v. United States, supra, 487 U.S. at 256-257.

Similarly, the prosecution’s interference with the grand jury’s

function to act independently compels dismissal of the indictment because it

could be presumed that a grand jury not acting independently would treat

defendants unfairly since the grand jury was not free to pursue its

investigation unhindered by external influences. United States v. Williams,

supra, 504 U.S. at 48-49.

The grand jury was impermissibly influenced by the executive branch

and the grand jury was not functioning as an independent body that it is

designed to be—separate from the three branches of government and to

protect individual liberty and freedom. The grand jury’s independence was

impermissibly interfered with by the executive branch when the prosecution

hindered the grand jury’s investigation as whether probable cause to believe

a crime was committed. This interference impermissibly altered the

structure of the grand jury by taking away the freedom given to the grand

jury to pursue its investigation unhindered by external influence or

supervision and to make its decision based on evidence it deems appropriate

and to protect individual’s right of freedom and liberty. The grand jury may

19

determine alone the course of its inquiry. United States v. Calandra, 414

U.S. 338, 343, 94 S. Ct. 613, 38 L. Ed 2d 561 (1974).

The panel below relied on United States v. Navarro, 608 F. 3d 529,

536 (9th Cir. 2010) in rejecting this issue. In Navarro, the district court

judge, who charged the grand jury, told the jurors that the prosecutor was

duty bound to present exonerating evidence and also praised the integrity of

the federal prosecutors. The Ninth Circuit found that the district court’s

instruction was wrong, that the prosecutor has a duty to present exculpatory

evidence and that the error was magnified by the encomium to prosecutorial

integrity. Id. at 537. The Ninth Circuit found that the erroneous instruction

did not constitute structural error requiring dismissal of the indictment

because the Court found that the error did not affect the substantial rights of

the defendant. Id. at 538. The instruction did not interfere with the grand

jury’s independent function to investigate and consider evidence it deems

appropriate.

In the present case, Mr. Cole has a substantial right to have the

structural protection of the grand jury functioning as an independently body

as it investigates and determines whether there is probable cause that a crime

has been committed in order to protect his freedom and liberty. The

20

prosecution’s impermissible interference with the grand jury investigation

results in structural error requiring reversal.

Structural error is a term of art for error requiring reversal regardless

of whether it is prejudicial or harmless. United States v. Navarro, supra, 608

F. 3d at 538. In Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L.

Ed 2d 35 (1999), the Court held that structural error occurs when there is

complete denial of counsel, a biased trial judge, racial discrimination in

selection of grand jury, and denial of self-representation at trial.

United

States v. Navarro, supra, 608 F. 3d at 538, citing to Neder v. United States,

supra, 547 U.S. at 8.

Here, denial of a grand jury functioning as an independent body, free

from prosecutorial interference during its investigation, is structural error

because the prosecution’s interference impermissibly compromised the

grand jury’s structural design to protect individual freedom and liberty from

unjust government power. Just like a defendant has the right to have a fair

judge, to have an attorney during criminal proceedings, no discrimination in

the selection of the grand jury, and the right to represent himself—a

criminal defendant has the right to have the grand jury who is investigating

him be free from impermissible influence by the prosecution. The structure

21

of the criminal system is constitutionally protected and designed to give a

criminal defendant a fair trial with an unbiased judge and with the assistance

of counsel. If any of these structural protections are compromised, then

error is presumed and the case is reversed. Similarly, the structure of the

grand jury is constitutionally designed to protect a defendant from outside

influences and to protect the individual’s liberty and to operate independent

from interference by the prosecution. Denial of this protection in grand jury

proceedings results in structural error requiring reversal.

The structural protection of the grand jury to protect individual rights

of freedom and liberty and to remain independent has been so compromised

as to render the proceedings fundamentally unfair requiring reversal without

particular assessment of the prejudicial impact of the errors. Bank of Nova

Scotia v. United States, supra, 487 U.S. at 256-257. This petition for a writ

of certiorari should be granted.

22