Petition — Crim v. Hunter

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83-1288 | FILED

AUG & {984

NO. ALEXANDER L. STFVAS

IN THE

Supreme Court of the United States

October Term, 1983

ROBERT BRIAN CRIM, an individual,

Petitioner,

G. WILLIAM HUNTER, United States

Attorney for the Northern

District of California,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ROBERT BRIAN CRIM, pro se,

32 Pierce Lane,

Naugatuck, Connecticut,

06770.

Telephone: (203) 729-6119.

——————

Questions Presented for Review

Whether under the First, Fifth, or

Ninth Amendments, or under the Horn-

blower's Provision of the Organized

Crime Control Act of 1970, Petitéoner

has standing to sue in an action see-

king to oblige compliance of a United

States Attorney with Title 18, United

States Code §3332(a), 84 Stat. 924:

Whether the United States Dis-

trict Court for the District of

Connecticut erred by dismissing

sua sponte Petitioner's action;

Whether the United States Dis-

trict Court for the District of

Connecticut erred or abused its

discretion by not allowing Peti-

tioner to amend his complaint:

Whether the United States Court

of Appeals for the Second Circuit

erred or otherwise abused its

discretion by not allowing Peti-

tioner to amend his complaint;

Whether the United States Court

of Appeals for the Second Cir-

cuit erred by upholding the ac-

tions of the United States Dis-

trict Court for the District of

Connecticut in dismissing Peti-

tioner's complaint or denying

his motion to amend;

Whether the United States Court

of Appeals for the Second Cir-

cuit erred or otherwise abused

its discretion by declining to

recall its mandate;

Whether the Supreme Court of the

United States should vacate judg-

ment to allow Petitioner to

amend his complaint.

iii

Whether Petitioner enjoys an implied

right of action to seek reliefs under

the Hornblower's Provision of the Or-

ganized Crime Control Act of 1970, 16

U.S.C. §3332(a), 84 Stat. 924:

Whether the United States Dis-

trict Court for the District of

Connecticut erred, upon Petitio-

ner's original attempt to amend

his complaint, in failing to

find an implied right of action

extant in the Hornbdlower's Pro-

vision, §3332(a):

Whether the United States Court

of Appeals for the Second Cir-

cuit erred in upholding the fin-

ding of the United States Dis-

trict Court for the District of

Connecticut that no implied

right of action lay latent in

the Hornblower's Provision.

III Whether the instant complaint(s) are

precluded from all future litigation

by the principle of res judicata.

(By anticipation:) Whether any por-

tion of the instant complaint(s) have

been mooted by any Statute of Limita-

tions.

Whether the Supreme Court, of its own

motion, should make inquiry into al-

legations of fraud perpetrated upon

it or ‘the courts below in a case pre-

viously before all.

Syllabus

Note: This syllabus constitutes no

part of the argument advanced by Petition-

er but has been prepared by him for the

convenience of the reader and in the inte-

rests of judicial economy. See United

States vy. Detroit Timber & Lumber Co.,

200 U.S. 321, 337 (1906).

Petitioner brought suit seeking writ

in the form of mandamus to compel Respon-

dent, a United States Attorney, to pre-

sent information obtained and provided by

Petitioner to a special federal grand jury

sitting in the Northern District of Cali-

formia pursuant to Title 18, United States

Code §3331 et seg., and for compensatory

and declaratory relief, alleging violation

on part of Respondent of the Hornblower's

Provision to Title 18, United States Code

§3332(a). The United States District

Court for the District of Connecticut dis-

missed and denied Petitioner's motion to

amend complaint, and on appeal judgment

was affirmed and further efforts by Peti-

tioner to amend were denied. Brief at 8

to 19, infra. Petitioner's underlying

complaints have their origin in a case

previously before this Court on two occa-

sions not involving Petitioner as a party

Brief at 2 to 8, infra. Jurisdiction of

this Court is asserted to lie pursuant to

28 U.S.C. §1254(1). Brief at xl, infra.

Dismissal was predicated upon the

district court's conclusion that Petitio-

ner lacked requisite standing to sue and

had failed to plead a judicially cogniza-

ble cause of action. Brief at 11 to 13,

infra; see Appendices A to F, infra. Pe-

titioner brings error and seeks writ of

certiorari.

Argument: At common law, a private

individual had an unqualified right to ap-

vii

pear before a properly convened grand jury

and lay an indictment before it. Brack vy.

Wells, 184 Md. 86, 40 A.2d 319, 322, 156

A.L.R. 324, 328 (1944). See Brief at 22

to 27, infra. The appellate panel of the

Second Circuit failed properly to analyze

Petitioner's asserted right to have his

materials presented to the special grand

jury, and therein was the root of the

claimed error, Brief at 23 to 26, infra:

(a) At the founding of the Govern-

ment, the right of a private person

to appear before a federal grand jury

and present evidence for its inspec-

tion was the right at common law,

United States vy. Dionisio, 410 U.S.

1, 17n.5 (1973); Wharton, Criminal

Law (7th ed., 1874), §453 at i:356.

See Brief at 27, infra.

(bo) The relevant statute passed in

the last century prohibiting approach-

es by private citizens to the grand

viii

jury having been amended in the form

of a repeal, 62 Stat. 770, 18 U.S.C.

§1504, 18 U.S.C.A. §1504, the state

of the law in 1970 when the Hornblow-

er's Provision was passed, as well as

today, in relevant terms is the same

as in 1794. United States y. Tynen,

11 Wall. 88 (1870); see State vy. Ba-

ker, 33 W.Va. 319, 10 SE. 639, 640

(1889), Brief at 27 to 29, infra.

er's Provision demonstrates that Con-

gress intended to incorporate into 18

U.S.C. §3332(a) a balence between un-

restricted access of private indivi-

duals to the special grand jury and

no access at all. See Petition of

Thomas, _. Me. _, 434 A.2d 503

(1981); United States vy. Chanen, 549

F.2d 1306, 1311 (CA9, 1977), cert.

den. 434 U.S. 835; Hott vy. Yarborough,

112 Tex. 179, 245 S.W. 676 (1922).

Brief at 29 to 36, infra.

The opinion of the Court of Appeals is in

conflict with other circuits and at least

two States with similar statutes, and

there is a general confusion among the

lower courts on the underlying question of

control of a grand jury. Brief at 36 to

38, infra. These conflicts provide the

Supreme Court with adequate reason to

grant the writ of certiorari and say defi-

nitively what the law is concerning how

private citizens are to go about playing

their role in the prosecution and suppres-

sion of crime. Cf. Parker yv. People of

Illinois, 332 U.S. 846 (1948). See Brief

at 39, infra.

Applying the broad dicta of Linda R.

S. ve Richard D., 410 U.S. 614, 619 (1973),

to the facts of the instant action gener-

ates an absurd consequence and a fundamen-

tal injustice. S. vy. De, supra, 410 U.S.

at 619n.5; United States vy. Hicks, 625 F.2d

216 (CA9, 1980), reh.den.; Orr ye Orr, 440

U.S. 268 (1979); accord Strauder vy. State

of West Virginia, 100 U.S. 303 (1880); see

Application of American Broadcasting Con-

panies, 537 F.Supp. 1168 (D.D.C., 1982).

Brief at 39 to 40, infra:

(a) Respect for the rules of due

process are essential to securing the

rights of all under a system of or-

dered liberty, and to prevent false

deprivations. Marshall vy. Jerriso,

Ince, 446 U.S. 238 (1980). Brief at

41, infra.

(bo) “John Wayne" approaches to the

problem of law enforcement are pre-

cisely what courts have criticized,

Finn xe United States, 219 F.2d 894

(CA9, 1955), reh.den. 75 S.Ct. 583

Brief at 40, infra.

dent that United States Attorney and

superiors have discretion as to what

grand jury shall be allowed to hear

is contraindicated by Fifth Circuit

and State of Maryland. United States

xe Cox, 342 F.2d 167 (CA5, 1965),

381 U.S. 935; Ewell ye State, 207 Md,

288, 114 A.2d 66, 71 (1955). Brief

at 41 to 43, infra.

The Supreme Court shvuld grant writ of

certiorari to reconsider the breadth of

the dictum in Linda B.S. ve Bichard D.,

Supra, as well as the Second Circuit's ex-

tension of same to important federal ques-

tion of private access to special grand

juries. Heflin ye United States, 358 U.S.

415, 416-417 (1959); see Hale y. Henkel,

201 U.S. 43, 63 (1906); Exdsbie vy. United

States, 157 U.S. 160, 163 (1895). Brief

at 43, infra.

That an implied right of action does

lie under the Hornblower's Provision, par-

ticularly where the United States Attorney

or his superiors entertain clear conflicts

xii

of interest is supported by language of

statute. Cf. Petition of Thomas, supra,

434 A.2d at 507; Board of Supervisors y.

Simpson, 36 Cal.2d 671, 227 P.2d 14, 15

(1951); and Hott vy. Yarborough, supra,

with Cort vy. Ash, 422 U.S. 66, 68n.1

(1975). Brief at 43 to 46, infra. That

mandamus is proper remedy is clear. Board

of Supervisors Y. Simpson, supra, 227 P.2d

at 17. Brief at 44 to 46, infra. Here, a:

private right of action arises by implica-

tion. Miller vy. Mallery, 410 F.Supp. 1282

(D.,Ore., 1976). Petitioner clearly is

within the "zone of interest" protected by

the Hornblower's Provision. Cannon y. Uni-

versity of Chicago, 441 U.S. 677, 689

(1979); Texas & Pacific Co. vy. Rigsby, 241

U.S. 33, 40 (1916). Brief at 46 to 51,

anfra. Supreme Court should grant writ of

certiorari to consider important question

of implied right of action under 18 U.S.C.

§3332(a). S.Ct. Rule 17.,1(c).

xiii

The Court of Appeals should have al-

lowed Petitioner to amend his complaint,

Warth ye Seldin, 422 U.S. 490, 501-502

(1975). Petitioner suffered injury in

fact, Ludlow Corporation y. Securities &

Exchange Com'n., 604 F.2d 704, 706-707

(CADC, 1979), reaching to constitutional

dimensions, Perry et al. vy. Sinderman, 408

U.S. 593 (1972), and benefits directly by

being allowed to "put his money where his

mouth is" and approach the grand jury.

Petitioner does have requisite standing

and cause of action. Davis v. Passman,

442 U.S. 228 (1979. Brief at 54 to 56,

anfira. This lawsuit neither is res judi-

cata nor moot. Brief at 59, infra. And,

if nothing else, this Court ought to make

inquiry upon its own motion into matters

previously before it. Brief at 60, infra.

xiv

TABLE OF CONTENTS ©

Questions Presented for Review. i

Syllabus... Vv

Contents. xiv

Tables of Authorities. xix

Jurisdictional Statement: xxxvii

A. Opinions Below. xxxvii

B. Jurisdiction. xxxviii

C. Constitutional and Sta-

tutory Provisions. xli

Statement of the Case: 2

A. Foundational Incidents. 2

B. The Instant Action. 8

C. Opinion of the Panel. 16

Reasons for Granting the writ: 19

A. Introduction. 19

B. The Appellate Panel Has Not

Performed the Analysis of Pe-

tioner's Asserted Rights

Which the Second Circuit in

Its Previous Decisions Required. 23

Failure of the Appellate Panel

to Perform Appropriate Analysis

of Petitioner's Asserted Right

Places Its Order of 17 December

1982 at Variance with Decisions

of Other Circuits and at Least

Two of the States.

(1) Legislative History of the

Hornbdlower's Provision.

Applying B3road Dicta of Linda

R.S. v- Richard D. to the Facts

of the Instant Action Generates

Absurd Consequences and Funda-

mental Injustice.

Implied Rights of Action Lie

Under the Hornblower's Provi-

sion Where the Executive Enter-

tains Conflicts of Interest.

III

The Courts Below Erred by De-

nying Petitioner's Motion to

Amend Complaint.

(1) The Court of Appeals Fo-

cused on Petitioner's Se-

cond Claim of Injury to

the Detriment of the First.

(2) Petitioner's Complaint

Should Have Been Construed

Liberally.

30n

(3)

(4)

(5)

(6)

(7)

(8)

(9)

xvi

Petitioner Was Injured

in Fact.

Petitioner's Injuries Were

Constitutional in Scope.

Petitioner Had Requisite

Standing and a Cause of

Action.

This Court May Allow

Amendment of Pleadings.

The Instant Action Is Not

Res Judicata.

The Instant Action Has

Not Been Mooted.

This Court Should Inquire

Upon Its Own Motion Con-

cerning Matters Previously

Before It.

G. Conclusion.

(1)

Writ of Certiorari Should

Be Granted to Consider Im-

portant Federal Questions

Raised.

Proof of Service.

Appendix:

Appendix A: Opinion and Order, Uni-

ted States Court of Ap-

peals, Second Circuit,

17 December 1982.

Appendix

‘Appendix

Appendix

xvii

Order, United States

Court of Appeals, Se-

cond Circuit, 08 March

1983.

Order, United States

Court of Appeals, Se-

cond Circuit, 27 Jan-

uary 1982.

Order, United States

Court of Appeals, Se-

cond Circuit, 19 May

1983.

Opinion & Order, Uni-

ted States District

Court, District of

Connecticut, 31 March

1981.

Minute Order, United

States District Court,

District of Connecti-

cut, 02 July 1981.

Judgment & Mandate.

Reply Brief of Appel-

lant, Crim v. Hunter,

#81-6177 (CA2) at

15-17 .

Opinion & Order, Uni-

ted States Court of

Appeals, Second Cir-

cult, 10 April 1979.

Complaint, Crim v.

Hunter, #N81-150 (D.

onn.).

Complaint (as amended).

A-7

A-10

A-12

A-14

A-17

A-19

A-22

A-32

A-52

xviii

Appendix L: ‘Complaint (as amen-

ded II).

Appendix M: Complaint (as amen-

ded IV).

Appendix N: Statutes.

Jurisdictional Statutes.

Declaratory Judgment Act.

Statutes of Limitations.

Principals and Accessories.

Criminal Statutes.

Insurrection.

National Bank Robbery Act.

Treason.

Note on “Capital Crimes.

xix

TABLES OF AUTHORITIES

Cases:

Abbott v. The Queen, 63 Crim.App.

R. 241 (

A ee v.

Jaite, 5 . 9 CAM,

Anderson v. Yungkau, 329 U.S.

(1947).

P.C.)-

Application a American Broad-

Casting ompanies. 537.

F.Supp. 11 D ’ 1982).

Application of Eisenberg, 654

F.2d 1107 (CA5, 1981).

Application of Yamashita, 327

. + Ti9h6).

Aspen Mining & Smelting Co. v.

ee . 2 5 ai

1 93 .

Association of Data Processin

ervices v. Camp, ;

150 (1970).

Baker v. Carr, 369 U.S. 186

(1962).

Ballou v. General Electric Co.,

393 F.a 396 (CA1, 1968).

Bienville Water Se Co Vv.

Obile, 106 U.S. 212 (1902).

5n +3

bout

30n.41,

35n.43

4, 4o,

18n.13

8n.11

2n.1

24-25,

24n.24,

61n.134

60n.133

2n.1

Bivens v. Six Unknown Named Agents,

Federal Bureau of Narcotics,

403 0.5. 300 (1971). t™~*” 14

Blaney v. State, 74 Md. 153, 21 A.

Tey (1891). 22n.22

Boag v. MacDougall, 70 L.Ed.a 54, 57,

551 3 62

Board of Supervisors v. Simpson, 24,

36 CeLR OF. 12d 071, 227 Pais On.41,

(1951). n.111,

4446

Boyne v. Ryan, 100 Cal. 265,

Brack v. Wells, 184 Md. 86, 19n.14,

46 A. 19, 156 A.L.R. 22»

Branzburg v. Hayes, 408 U.S.

(1972). 19-22

Browning v. State, 37 Ala.App.

137, 13 So.a 54 (1943). 5n.3

Burke v. Compania Mexicana de

Viacion, S.A., 433 F.a

SOST (eho, 1970). 47, 48

Cannon v. University of Chicago, 43,

Gat U. . 979). 47-51,

61n.134

Carolene Products Co. et al. v.

United States, 323 U.S. 18

Tiga). an.1

Cawley v. Warren, 216 F.m% 74

tcn?, 1955). 38

xxi

Charge to eS eee #18,255,

30 F.Cas. 953— 2 Sawy. 667

(0.6.0. Cai., 1872). 28n. 33

Commonwealth v. Fu » 330 Pa.

3, 198 A. 99 C1538) . 7

Conley v. Gibson, 355 U.S. 41 (1957). 11

Coppedge v. United States. 311 30n.41,

wad 128 (CAD, 38

Cort v. Ash, 422 U.S. 66 (1975). 17, 33,

44un.111,

47, 50

5in.114

Costello v. United States, 350

.S. 359 (1956). 21

x v. Hauberg, 381 U.S. 935 (1966). 12

ee yparne » 331 U.S. 367

8n.11

Crim v. Bell et al _ -150

TD.fonn., 1978) 59

Crim v. Bell et al., #78-2132

Tca2, 1979). 17

Crim Ve E er, C.I.R., #21268-82

oY ie ie 49n.113

Crim v. Hunter, #81-6177 16-18, <i

Tca2, 1982). 31, 43, sh

Crim v. Hunter, #A-909 (S.Ct.,

1983).

Culombe avi Connecticut, 367 U.S.

8 (1961). 6n.4

xxii

Curtis Publishing Co. v. Butts,

ser US TG ye, |: oes

D'A wane v. United States, 192

338 (CAS, 1 . 5n.2

Davis v. Passman, 442 U.S. 228 51n.114

(1979).

Duke v. United States, 112

A.L.R. 317 (CAS, 1937). 28n. 33

Dusky v. United States, 295

F.a 743 (CaS, 1961). 4

Erie R. go. v. Tompkins, 304

U.s (3380- 43

Estevez v. Nabers, 219 F.m 321

CAS, 1955). 59n.124

The Evergreens v. Nunan, 141

as: FH os? T CA2, 1944). 59n.124

Ewell v. State, 207 Md. 288,

1T4 Ava 66 (1955). 42

Fikes v. State of Alabama, 352

eB (1957). 6n.4

Finn v. United States, 219 F.m

694 (TAS, 1955). 40

Flast v. Cohen, 392 U.S. 83 (1968). 24

Garrison v. United States, 154

~ Feat 106 (CAd, 1940). 12n.12

Hagans v. Lavine, 415 U.S. 528

(1974). 62

Haines v. Kerner, 404 U.S. 519

1972). 54, 57

xxiii

Hale v. F.C.C., 425 F.2 556

TcaDe, 1970). 38

Hale v. Henkel, 201 U.S. 43 (1906). 43

aa Vv. i, eset 386 F.2d 390

~ (CRe ’ 1 5n.3

Hardin v. Kentucky Utilities Cc.,

390 u.S. 1 (1968). 24

Harris et al. v. California, 2nel>,

4Gu.S. 862 (1979). 20n.21

Harris v. Superior Court of

Alameda rh » 19 Calex

, 140 Sal.Rptr. 318,

567 P.w 750 (1977). 2n.1

Hearst v. United States, 435 2ne1, 6,

* Pee 1977). 61n.141

Heflin v. United States, 358

U. . 9). 43

Hollman v. Warren, 32 Cal.a@ 351,

-20 502 ( ). 45

Holtzman et al. v. Schlesinger,

14 U.S. 1304 (1973). 4in. 44

Hott v. ace hs 112 Tex. 30n.41,

179, 676 (1922) .,

Hurtado v. California, 110

De 516 (1884).

eo a Attica Correctional

acility v. Rockefeller,

Bats 375

(CA2, 1973)-

in re ao Jury,

Januar

~ 315 F.Supp. 662 se 1 70).

Te. nee y

26n. 31,

27n. 32

46n.112

11,

26n.31

xxiv

re Mills, 135 U.S. 263 (1890). 27n.32

e Opinion oe overnor, 22n.22,

=~ I. 200, 4 A.ad 487 11999) 26n. 31

J.I Case Co. v. Borak, 377 U.S.

: I5'

~ “B26 (i965). 50

Knowlton v. Moore, 178 U.S. 41

~ (1899). 24n. 24

Leo Sheep Co. v. United States

et al., 440 U.S. 668 (1979). 29n.34

Leyra v. Denno, Warden, 347 U.S.

556 (1954). 6n.4

Linda R.S. v. Richard D., 11, 17,

470 U.S. 615 (1973). 18n.13, 23,

2 39-40, 43,

| 53, 59n.131

Liverpool, N.¥.& P. Steamship

eo: v. Commissioners 3

migration, 113 U.S. 3

Ties}. oun. 24

Ludlow Cor . S.E.C., 604 F.m

se Ob CRALE, 1979). 54

Lynch v. Director = At

secutions, [1 1 Al R.

913 (H.L.). 5n.3

Marbury v. Madison, 1 Cranch

7 (1805). 24n.24

Marsh v. Commercial and Savings

Bank of Winchester, Vir c

Nia, 205 F.supp. 014 (W.D.

Vir., 1967). 8n.11

Marshall v. Jerrico, Inc.,

U.S. 230 (1980). 41, 61

XxXV

Medical Committee for Human Rights

Vv. 8 Ay 432 F.2 259 ’

1970). 38

Merckins v. F.i- ee Glore

Forgan & Co., 514 F.% 20

core 1975). 11

Merri. L eh, Pierce, Fenner &

Curran, 456 U.S. 29, 50,

333 (1 582- 60n.132

Meyer v. State of Nebraska,

262 U.S. 390 Ti9Z3). 55

Miller v. Mallery, 410 F.Supp.

~~ $283 (D.oree, 1976). 12, 48

Moone - Holohan, Warden,

So Gu.S. 103 (1935). 6n.4

Moose Lodge No. se v. Irvis

07 ede 163 (1972). 25

Nagler v. Admiral gOERe 248 F.2d

319 (CA2, 1 1957 60n. 133

sh ¥. Galifene: 613 F.2d 10

New York Indians v. United

= “States, 170 U.S. 1 (1898). 2n.1

New York Times Co. v. Sullivan,

Us. 254 (1964). 56

Nishikawa v. Dulles, 356 U.S.

129 (1958). 5n.2

Office of Communication, United

vhurch of Chris

h of Christ v. F.C.C.,

G25 F.a 543 (CADC, 1969). 38

Olmstead v. United States, 277

U.S. 438 (1928). 42

xxvi

Orr v. Orr, 440 U.S. 268 (1979).

Parker v. People of Illinois,

532 U ‘ . 6 (1 od

Payne v. State of Arkansas, 356

U.S. 560 (1958).

Peonage Cases, 123 F. 671 (M.D.

Ala., 1903).

People v. Adcock, 29 Ill.App.x

People v. Button, 106 Cal. 628

39 P. 10735 (1895).

People v. Doss, 382 Ill. 307,

People v. Harris et al.,

FIZLOSGA (L.A.Cty., Cal.,

1976).

People v. Merhige, 212 Mich.

60T, 180 N.W. 418 (1920).

People v. Municipal Court, 27

Cal.App.od oF 103 Cal.Rptr.

A.L.R.3d 717 (1972).

People v. Parker, 374 Ill. 524,

People v. Remiro et al., 89

“at las, Ty B09, 153 Cal.

Rptr. 89 (1979).

People v. Sheridan, 349 Ill.

202, 161 NE. 617 (1932).

645,

People v. Sing Chan, 64 Cal.App.2

167, 148 P.a 81 (1944).

46n.112

28n. 33

xxvii

People v. Yoshimura, 91 Cal.App.x

609, 154 Cal.Rptr. 314 (1979). 2n.1

People ex rel. Ferrill v. Gray- 22n.22,

don. wapitit , aS oan 29, 26n.31,

(3338) 38

Perry et al. v. Sindermann,

408 Us. 593 (1972). 55

Petition of Thomas, Me. _, 25,

A.2d 503 (1981). 30n.41

35n.43,

44n.i11

Prarie Band of Tribe of Pot-

awatomie Indians v.

Udall, 355 F.a 364 (Ca10,

1966). 30n.41

Prince v. United States, 352

U.S. 322 (1957). 60n.1 32

Proto v. Bridgeport Herald Corp.,

136 Rene aor 72 Awe ao

(1950). 8

Pugach v. Klein, 193 F.Supp. 630

ee (SDNY, 1961) . . 41-42

Reck v. Pate, 367 U.S. 433 (1961). 6n.4

Reeves v. American Broadcastin

Companies, inc., 719 F.a 8n.11,

602 (CAz, 1983). 56n.122

Regina v. Russell, Car. & M. 247. 22n.22

Rogers v. Missouri Pacific R.

eee Ro, SSE US+ 500 (1557). 25

Rosenblatt v. Baer, 383 U.S.

- 'o t2oec 44

xxviii

Ross v. State, 169 Ind. 388,

B2 N.E. 781 (1907). 5n.3

Schware v. Board of Bar Exami-

ners, State of New Mexico,

353 U.S. 252 (1957). 55

Simpson v. United States, 435

U.s. 6 (i978). 60n.132

State v. Baker, 33 W.Va. 319,

~ 10 S.E. 639 (1889). 22n.22, 29

State v- California Packin

~ Or *?, a ’

TOS a 7B (iouks 59n.124

State v. Hauptmann, 115 N.J.L.

472, Tob A. 809 (1935). 7

State v. Kearns, 27 N.

34, 219 S.E.2 328 (355). 5n.3

State v. St. Clair,

262 S.w.20 25, 4O A. om Re

903 (1953). 5n.3

Stewart v. Traveler's Corp.,

503 F. cAD, TOPL} 46-47

Strauder v. State = west Vir- ton. 23.

ee ginia, 100 U.S. 303 (1880). 0

Surowitz v. Hilton Hotels Corp.,

Sweat v. State, 90 Ga. 315, 17

~~ SeE. 273 (1893). 6in.141

Terry v. Ohio, 392 U.S. 1 (1968). 61n.134

Texas & Pacific Co. v. Rigsby,

~~ 2461 0.5. 33 (1916). 51

xxix

Tipton v. State, 23 Okl.Crim. 86,

212 P. 612 (1923). 61n.141

Touche Ross & Co. v. Redington, 17, 32,

42° U.S. 560 (1979). 5in.114

Transamerica Mortgage Advisors,

Inc. v. Lewis, G44'U.5.

11 (1979). 5in.114

United States v. Ashton,

14,470, 24 Fitas. 873,

2 Sumn. 13 (C.C.D.Mass.,

1834). 5n.3

United States v. Calandra, 414

mecomens ee. tis7ay— 29, 61n.134

United States v. Cariola, 323

~~ Fea 103 (CA3, 1963). 12n.12

United States v. Chanen, 549 30n.41,

~ FF, 13060 (CAO, 1977). ‘“H. x

United States v. Chapman, 455

~ B,2d 246 (GAS, 1 : 5n.3

United States v. Chavez, 416 U.S.

~~ 562 (1974),

United States v. Chovenec, 467

F.Supp. 41 (SDNY, 1979). 37

United States v. Christian,

“660 FF. 892 (CAS, 1981). 27.32

United States v. Cosby, 601 F.m

54° (CA5, 1979). 38

United States v. Cox, 342 12, 26n.31,

2c 167 (Ca5, 1965). 37, 42, 52

United States v. Dionisio,

10 U.S. TI (19 . 26n. 31

XXX

United States v. Fein, 504 F.2

1170 (CA2, 1974).

United States v. Glidden Co.,

119 F.2% 235 (CA6, 1941).

United States v. Hearst, 412

"F.Supp. 858 et seq. (N.D.

Cal., 1975-1976).

eae States ¥: Hearst, 424

~ #,SUpp. 3° 4g et seq. (N.D.

Cal., 1976

United States v. Hearst, 435

~ FeSupp. 29 (N.D.Cal., 1977).

United States v. Hearst, 466

oa 1068 (N.D.Cal.,

1978).

United States v. Hearst, 563

—— ae, 5, 107

~ ’ .

United States v. Hearst, 573

~~ Fea 570 (CAS, 1580).

United States v. Hearst, 638

“Fa 1190 (CAS, 1980).

United a ye Hicks, 625

(Ca9, 1980).

United States oe eoease! 79

a ll la ‘>,

United States v. Keogh, 391

~ Fea Loo (C 8).

United States v. Kilpatrick,

16 F. 765 (w. oe One 1883).

27n.32, 41

59n.124

2nel,

6in.141

ani.

6in.141

ani,

61n.141

2n.1

enel.

61n.141

2n.i,

6in.141

2n.i1, 15

18n.13, 40

6in.141

12n.12

28n. 33,

xxxi

United States v. Luros, 243 F.Supp.

~~ $60 (N.D.1lowa, 1965). 59n.124

United states v. McClain, 531 F.dd

"B31 (CA9, 1976). 5n.3

United States v. M‘Clellan, 127 F.

971 (S.D.Ga-, 1904). 6in.141

United States v. Moore, 486 F.2

United States v. Morgan, 346

ee mm. Tissayo 12n.12

United States v. Nixon, 418

0.5. 683 (1974). 25, 46n.112

United States v. Fersico, (in

re Subpoena of persico),

” 522 . (Ch2, 19” i. 12, 37

United States v. Pink, 315

U.5. 203 (1942). 2n.1

United States v. Shackney, 333

F.o 475 (TA2, : 61n.141

United States v. Shinnick, 546

F.2 420, Bue Ft Get (CA3,

1976). 2n.1

United States v. Smyth, 104

Su Dp. 283 . Se 26n.31, yy

1952) 37, 38

United States v. Soliah, #Cr. 2nel,

75-5235 POW (E.D.cal., 1976). 59n.131

United States v. Steel, 238

F.Supp. 580 (SDNY, 1965). 37

United States v. Stone, 429

F.2 138 (Ca2, 1970). 21

xxxii

United States v. Thompson,

"251 U.S. 407 Ci g80). 52

United States v. Tynen, i1

~ Wall. 60 (1870). 29

United States v. Union Pacific

Ri Giles 9L Uels Fa (Ler ol 29n. 34

United States v. Weiner et al.,

18 F.Supp. 941 (M.D.pPa.,

1976). 2n.1

Universities Research Assn. v. 12, 17,

Coutu, 450 U.S. 754 (1981). 32, 51,

Kins 52

Warth v. Seldin, 422 U.S. 490 :

(1975). 17, 23, 4

Wells v. United States, 318 |

U.S. 257 (1943). 2n.1

Wood v. Georgia, 370 U.S. 375 (1962). 21

Constitution & Statutes:

U.8. Const... Art. TTI, $2. o1.2. 60

U.S. Const., Amend. I. 56

U.S. Const., Amend. V. 22, 55-56

U.S. Const., Amend. IX. 22

§ u.S.C. §702, 80 Stat. 392, 90

Stat. 2721. 14

18 U.S.C. §2, 62 Stat. 684, 65

Stat. 717. 7

18 U.S.C. §4, 62 Stat. 684. 7

xxxiii

18 U.S.C. §242, 62 Stat. 696, 82

Stat. 75. 7

18 U.S.C. §401, 62 Stat. 701. ?

18 U.S.C. §1503, 62 Stat. 769,

96 Stat. 1253. 7

18 U.S.C. §1504, 62 Stat. 770. 28, 38

18 U.S.C. §1583, 62 Stat. 772. 7

18 U.S.C. §1622, 62 Stat. 774, 7

18 U.S.C. §2113(a,d), 62 Stat.

796, 64 Stat. 394, 66 Stat.

46, 73 Stat. 639, 84 Stat.

1017. 4

18 U.S.C. §3281, 62 Stat. 827. 59n.131

18 U.S.C. §3282, 62 Stat. 828. 7

18 U.S.C. §3332(a), 84 Stat. 924

(including Hornblower's Pro- et

vision). assim

18 U.S.C. §3333, 84 Stat. 924. 30n.41

28 U.S.C. §1254(1). 60

28 U.S.C. §1331, 90 Stat. 2721,

94 Stat. 2369. 9, 14

28 U.S.C. §1343(4), 93 Stat.

1284, 9, 14

28 U.S.C. §1361, 76 Stat. 744, 9, 14

28 U.S.C. §1391(e), 90 Stat.

Bran « 9, 14

28 U.S.C. §1653, 62 Stat. g44, 13, 56

xxxiv

28 U.S.C. §2201, 62 Stat. 964,

63 Stat. 105, 68 Stat.

890, 72 Stat. 349, 90 Stat.

1719, 92 Stat. 2672.

42 U.S.C. §1981, R.S. §1977.

Fed.R.Civ.Pro. Rule £9(a).

Fed.R.Civ.Pro. Rule 60(b).

S.Ct. Rule 17.1(c).

Calif. Civ.Code §47.,

Calif. Code Siv.Proc. §731.

Civ.Proc. §1085.

§1963(15).

Calif. Code

Calif. Code Civ.Proc.

Calif. Gov't.Code §14.

Calif. Gov't.Code §26528.

15 Me.R.S.A. §1256.

Miscellaneous:

Jane Alpert, geou re Up incer-

ground (New York: Wm.

ierrce, 1981).

Wm. Bradford, letter to Edmond

Randolph, 20 Feb. 1794,

Op.Atty.Gen. 22.

Burroughs, "Criminal Law and

Procedure,” 51 L.Q.Rev. 36.

Cong.Rec.

(Senate, 18 Dec. 1969).

9, 14

29, 50

19n.14

8n.11

44, 4s

30n.41

22n.22

30n.41

XXXV

Cong.Rec. (House, 10 Mar. 1970). 30n.41,

Cong.Rec. (House, 06 Oct. 1970). 30n.41,

Cong.Rec. (House, 07 Oct. 1970). 30n.41,

Editors of Look, The Story of

the FBI (New York: t B-

ton). 7

"The Grand Jury as an Investiga-

tory Body," 74 Harv.L.Rev.

590. 26n. 31

Patricia Campbell Hearst with

Alvin Moscow, Every Secret

Thing (Garden City, N.Y.s .

SGabteday, 1982). 3

House of Representatives, Report

No. 91-1549. 35n.43

House of Representatives, Commit-

tee on Internal Security,

93d Congress, 2d session,

Terrorism, Part 3 (hearings). 2n.1

55 C.J.S. Mandamus. 45

Senate Report No. 91-617. 30n.41

Thompson & Merriam, Juries (1882). 22n.22

8 U.Chi.L.Rev. 561. 36

Wharton, Criminal Law (7th ed,

1874), 27, 28

2 U.S.Cong.& Adm.News 1970. 30n.41,

35n.43

xxxvi

Act of 10 June 1872, ec. 420,

17 Stat. 378. 28

18 U.S.C. (1940) §243, 35 Stat.

1113. 28n. 33

xxxvii

JURISDICTIONAL STATEMENT

PETITION FOR WRIT OF CERTIORARI

Petitioner Robert Brian Crim, pro se,

petitions this honorable Court for writ of

certiorari to the United States Court of

Appeals for the Second Circuit that this

Court might review favorably decisions of

the courts below, reversing the order en-

tered by the court of appeals on 17 Decem-

ber 1982. For the purpose of this peti-

tion, Petitioner avers that the grevenen

of his complaints is not affected adversely

by any mooting of the suit occasioned by

lapse of the general Statute of Limitations

of the United States, 18 U.S.C. §3282, 62

Stat. 828, 68 Stat. 1145, 75 Stat. 648.

OPINIONS BELOW

None of the lower courts' opinions

have been published. The six opinions or

orders relevant and material to the instant

xxxviii

petition are attached hereto in the juris-

dictional appendix. See Appendices A

through F, inclusive, infra.

Additionally, the opinion and order

of the court of appeals entered 10 April

1979 affirming dismissal of Petitioner's

complaint, Crim v. Bell et al., #78-2132

(CA2), is attached hereto as Appendix I.

JURISDICTION

On 17 December 1982, the Court of Ap-

peals for the Second Circuit entered an

order affirming the United States District

Court for the District of Connecticut's

dismissal sua sponte, for want of his stan-

ding to sue, Petitioner's complaint. Peti-

tioner filed motions for rehearing en bane

and rehearing out of time on 04 January

1983; the motion for rehearing out of time

was granted, and on 08 March 1983, the mo-

tion for rehearing was “denied without pre-

judice to the application that the petition

xxxix

be heard en banc."

On 09 May 1983, Mr. Justice Marshall

granted Petitioner's motion before this

Court seeking extension of time in which

to file petition for writ of certiorari;

per Mr. Justice Marshall's order, Crim v.

Hunter, #A-909 (1983), time for filing the

petition was extended through and inclu-

ding 08 August 1983. On said date, the

petition was mailed to the Court pursuant

to S.Ct.Rule 28.2. An attorney's affida-

vit attesting to timely mailing has been

filed with the Clerk.

The Clerk returned all papers to Pe-

titioner pursuant to S.Ct.Rule 33.7; sub-

sequent efforts by Petitioner to file his

papers were interdicted by the Clerk, and

a lengthy legal discussion followed.° Now

° petitioner felt constrained from filing

a Form-4 affidavit required by Rule 46.1

because the form seeks absolution from all

costs and Petitioner at the time had suf-

ficient funds to pay the Clerk's fee but

not print the brief. An alternative affi-

comes Petitioner and proffers forty copies

of a printed brief conforming to S.Ct.Rule

19.3. It respectfully is submitted that

this Court has jurisdiction over the in-

stant petition pursuant to the provisions

of 28 U.S.C. §1254(1), and that sanctions

under Rule 33.7 would be inappropriate.

See note 0, supra.

davit and a Rule 42 motion to be freed

from printing requirements were proffered

instead and rejected, even though Peti-

tioner cited numerous cases of this Court

where such motions had i wba See

Calle Callawa 23 U.S

i857 Un t 24 states ve. S.C.R.A.P., 409

(1967); Prudhomme v. ii 3 nmson Construc-

fas Co., 414 U.S. 1090 Jofmscr Durs*

United States Court of Appeals fer th

Ninth Circuit et al., uBs U.s. £5 Teo),

Cardona et al. v. Saxbe, Attorne eneral

et al., 415 U.S. 908 (1 OB (i972); Mart ene

na v. Supreme Court of Illinois, 415

zo S. 910 (1 1978) 5 D.H. Ove er Co. et al.

ter of nittington, 88 S.Ct. 1096 (1968) ;

e et al. v. Vowe et . 14 U.S.

Yea = wee to Petit

Ti974). ioner (who

is not an attorney), this Court recently

had changed its procedure. Miller v

Pierce, #82-6778 (31 Oct. 19 . For this

reason, Petitioner avers that this Court

should not penalize him per Rule 33.7 for

being so late in the instant submission.

xli

CONSTITUTIONAL AND STATUTORY PROVISIONS

Art. II, §1, ¢l. 1 of the Constitu-

tion of the United States says in part:

The executive power shall be

vested in a President of the

United States of America.

Art. II, §3 of the Constitution of

the United States says in part:

(The President] shall take care

that the laws be faithfully ex-

ecuted * * *#

Art. III, §2, el. 1 of the Constitu-

tion of the United States says in part:

The judicial power shall ex-

tend to all cases, in law and

equity, arising under this Con-

stitution, the laws of the Uni-

ted States, and treaties made,

or which shall be made, under

their authority; * * *

Art. III, §1 of the Constitution of

the United States says in part:

The judicial power of the

United States shall be vested in

tion

xlii

one Supreme Court, and in such

inferior courts as the Congress

may from time to time ordain and

establish.

The First Amendment to the Constitu-

of the United States says in part:

Congress shall make no law

* * * abridging the freedom of

speech, or of the press; or the

right of the people peaceably

to assemble, and to petition

the government for a redress of

grievances.

The Fifth Amendment to the Constitu-

of the United States says in part:

No person shall be held to

answer for a capital, or other-

wise infamous crime, unless on

a presentment or indictment of

a een jury, except in cases

arising in the land or naval

forces, or in the militia, when

in actual service in time of war

or public danger; nor shall any

person * * * be deprived of life,

liberty, or property, without

due process of law; * * *

The Ninth Amendment to the Constitu-

of the United States says:

xliii

The enumeration in the Con-

stitution, of certain rights,

shall not be construed to deny

or disparage others retained by

the people.

Title 18, United States Code §3332(a),

84 Stat. 924, says:

It shall be the duty of each

such grand jury impaneled within

any judicial district to inquire

into offenses against the crimi-

nal laws of the United States

alleged to have been committed

within that district. Such al-

leged offenses may be brought to

the attention of the grand jury

by the court or by any attorney

appearing on behalf of the Uni-.

ted States for the presentation

of evidence. Any such attorney

receiving information concerning

such an alleged offense from any

other person shall, if requested

by such other person, inform the

grand jury of such alleged of-

fense, the identity of the per-

son providing the information,

and such attorney's action or re-

commendation.

Title 18, United States Code §1504,

62 Stat. 770, says in part:

Nothing in this section shall

be construed to prohibit the

xliv

communication of a request to

appear before the grand jury.

Title 42, United States Code §1981,

R.S. §1977, see c. 114, §16, 16 Stat. 144,

says in part:

All persons within the juris-

diction of the United States

shall have the same right in

every State and Territory to

* # * give evidence, and to the

full and equal benefit of all

laws and proceedings for the se-

curity of persons and property

as is enjoyed by white citizens

* +

Title 5, United States Code §702, 80

Stat. 392, 90 Stat. 2721, says in part:

A person suffering legal

wrong because of agency action

or adversely affected or ag-

- igi by agency action within

he meaning of a relevant sta-

tute, is entitled to judicial

review thereof. An action in a

court of the United States seek-

ing relief other than money da-

mages and stating a claim that

an agency or an officer or em-

ployee thereof acted or failed

to act in an official capacity

or under color of legal author-

ity shall not be dismissed nor

relief therein be denied on the

xlv

ground that it is against the

United States or that the Uni-

ted States is an indispensable

party.

Title 5, United States Code §701(a),

80 Stat. 392, says:

This chapter applies accor-

ding to the provisions thereof,

except to the extent that --

(1) statutes preclude ju-

dicial review; or

(2) agency action is commit-

ted to agency discretion by

law.

Title 28, United States Code §1653,

62 Stat. 944, says:

tion

Defective allegations of ju-

risdiction may be amended, upon

terms, in the trial or appellate

courts.

Art. III, §2, cl. 2 of the Constitu-

of the United States says:

In all cases affecting ambas-

sadors, other public ministers

and consuls, and those in which

a State shall be a party, the

xlvi

Supreme Court shall have origi-

nal jurisdiction. In all the

other cases before mentioned,

the Supreme “ourt shall have ap-

pellate jurisdiction, both as to

law and to fact, with such ex-

ceptions, and under such regula-

tions as the Congress shall make.

Petitioner has consigned to the Ap-

pendix texts of the relevant jurisdictional

Statutes, 28 U.S.C. §§1331, 1343(a) (4),

1361, 1391(e), and 2201, along with other

statutes of interest. Appendix N, infra;

see Petition at 7, infra.

STATEMENT OF THE CASE

A. Foundational Incidents.

As both the district court and the

court of appeals quite accurately recog-

nized, Petitioner is an accredited histo-

rian seeking to publish in the future cer-

tain manuscripts concerning one Patricia

Campbell Hearst (whom this honorable Court

has met before on several occasions) and a

fourth manuscript devoted in part to co-

verage of the Iranian hostage crisis. Ap-

pendices A and E, infra. The instant ac-

tion has its origins in these incidents

and the legal proceedings which this Court

should notice were generated by them.

While it ordinarily is true that the

Supreme Court will notice only such facts

as are found by the courts below, it may

take notice of matters of common observa-

tion, of statutes, records, or public doc-

uments previously not called to its atten-

tion, of reports of the committees of the

House of Representatives, of other peti-

tions for certiorari granted or denied,

the accompanying documents, officially

The Court also should notice that the

Said Patricia Campbell Hearst recently has

found it within herself publicly to relate

reported opinions and findings of the low-

er courts, or similar matters of judicial

Cognizance. New York Indians v. United

States, 170 U.S. 1, 18 (1898); Carolene

Products gee et er; v. United States, 323

U.S. 18, 28 (1944); Aspen Minin & Smel-

ting Co. v. Billin 5, 156 ws; 3 31 (1893) ;

Welts v. United States, 318 U.S. 257, 260

(1943); pienvilie Water Suppl Co. v. Mo-

bile, 186 U.S. 212 (19062); tatted States

Vv. Pink, 315 U.S. 203, 216 (194e).

oe rine oye ny wir Soyge its me-

mory by taking a look at People y. Remiro,

“et al., 89 Cal Appe2d 809, 35 Bat: note

B9 (1979), reh.den.; Committee on Internal

Security, House of Representatives, 93d

Congress, 2d session, Terrorism, Part 3

(hearings of 26-27 June, 10-11 July, 23

July & 13 Aug. 1974) at 3915-36, 3979-

4008, 4029-59; Harris v. Superior Court of

Alameda County, 19 Gal. 7BE- 146 Cal.

FP r. 318, P.a& 750 (1977); United

States v. Hearst, 412 F.Supp. 858 eft seq.

(N.D.Cal., 1975-76); United States v. Wei-

ner et al., 418 F.Supp. 941 (M.D.Pa‘’,

1976), aff'd. sub nom. United States v.

Shinnick, 546 F.% 420, 546 F.m 427, cert.

den. 429 U.S. 1105; People v. Yoshimura,

91 Cal.App.% 609, 154 Cal.Rptr. 31

(1979), reh.den.; United States v. Hearst,

563 F.& 1331 (CA9, 1977), reh. en banc

den. 573 F.a& 579, cert.den. 435 U.S. 1000;

United States v. Hearst, 424 ae: 307

et seq. (N.D.Cal., 1976), aff'd. 563 F.x

1331; United States v. Hearst, 435 F.Supp.

29 .D.Cal., 1977), aff'd. 563 F.m i331,

certain of those details of her circum-

stances immediately familiar to her. Pa-

tricia Campbell Hearst with Alvin Moscow,

Every Secret Thing (Garden City, N.Y.:

°° this honorable Court

Doubleday, 1982).

should recall (and may consult its own

records if it does not recall) that Miss

Hearst was convicted of violating the Na-

tional Bank Robbery Act, 18 U.S.C. §2113

(a,d), and that her case involved, among

United States v. Hearst, 466 F.Supp. 1068

.D.cal., 1978), aff'd. in part, rev. in

part 638 F.&% 1190, cert.den. 451 U.S. 938;

see also People v. Harris et al., #321099A

(L.A.Cty., Cal., 1976), cert.den. 444 U.S.

862; United States v. Soliah, Cr. #75-523

PCw (E.D.cal., 1976).

Petitioner, himself, has no doubts

concerning the abilities of the members of

this Court properly to recognize the legal

presumptions they may make concerning all

this. See e.g. Dusky v. United States,

295 F.2 743, 753-785 (Ca8, 1961), cert.

den. 368 U.S. 998. Proof of such may be

found by them in the very papers which Pe-

titioner asks this honorable Court to re-

view. Notice that Petitioner having wor-

ked the Hearst case very hard since 14 Au-

gust 1974, the Court can rest assured that

Petitioner knows what he is about.

other matters, a plea of duress. Peti-

tioner has studied the parameters of this

defense very carefully, and though he ad-

mittedly is not an attorney, nevertheless,

"after exhaustive research of the Hearst

See D'Aquino v. United States, 192 F.a

338 (CA9, 1951), cert.den. 343 U.S. 935;

(i998). Nishikawa v. Dulles, 356 U.S. 129

Cf. United States v. Chapman, 455 F.a

746 (CA5, 1972); United States v. McClain,

531 af Phe (CAS, 1976), cert den. 2

U.S. 835; and Browning v. State, 37 Ala.

App. 137, 13 Sox 3 T1 943); with State v.

Kearns, 27 N.C.App. 354-249 S.E.& 226

(1975), cert.den. 289 N.C. 300, Pisa S.E.m

700; see further aa os a ooeye ge, 212

a 601, 180 N. iW B18 } oe cf. nch

v. Director of Public ABE sed ons 3 1975 ]

T All E.R. 913 CHE}, alte abbott ve The

Queen, 63 Crim.App.R. 241 (1976)(P.c.);

but see also United States v. Moore, 486

F.2d 1139, 1179-85 (CADe, 1 rhe, aranaeess

Jos concurring) » cert. den. S 464

cf. Ross v. Stare. 169 Ind. 388, 82 N

781 (1907); and People v. Sing Chan,

Cal.App.a 167, GE Poh Bi 1944); Beh

State v. St. Clair, a <r! 262 S.W.a

25, 40 A.L.R.& 903 (1953); and People v.

Button. bg Cal. 628, 33 bia ee if: 5);

see People 55 Adcock, 29 A 917,

331 NvF.& 573, 575-5 “S7E-876 (1975); 4 ete Vv.

Bailey, sae. ; 2d 390 (CA4, 1967); ed

sates v. Ashton, #14, 470, 24 F.Cas. 3.

13 (€.C.D.Mass., 1834 De

case," Complaint (as amended IV) at 99

7(b,¢,d,e), Appendix M, infra, has conclu-

ded that there are “several material irre-

gularities," Miller v. Pate, 386 U.S. 1

(1967), in the proceedings against her.

Cf. e.g. United States v. Hearst, #77-1089

(1977), Petition for Certiorari at 21-27;

with United States v. Hearst, loc. cit.,

Government's Opposition at 11-16. In

tnat Miss Hearst was remanded to the cus-

tody of the Attorney General subsequent to

this Court's denial of her original peti-

tion, 435 U.S. 1000, and incarcerated un-

til released by official Presidential pro-

clamation on 01 February 1979, given that

five years from 01 February 1979 is 01 Fe-

bruary 1984, the General Statute of Limi-

See also Reck v. Pate, 367 U.S. 433,

444 (1961)(Douglas, J., concurring); Leyra

v. Denno, Warden, 347 U.S. 556 (1954);

Payne v. State of Arkansas, 356 U.S. 560

T5358) ikes v. State of Alabama, 352 U.S.

191 (1957); see generally Culombe v. Con-

necticut, 367 U.S. 568 (1961); and Moone

35).

Vv. Holohan, Warden, 294 U.S. 103 (19

tations, 18 U.S.C. §3282, 75 Stat. 648,

has not expired -- yet. The predication

underlying the instant petition encompas-

ses peouthie violations of 18 U.S.C. §§2,

4, 242, 371, 401, 1503, 1583, 1622, and

other, more serious infractions, the pro-

secution of which was interdicted by the

final securing of Patricia Hearst's con-

viction and what Petitioner alleges to be

an effort to cover how that securing was

obtained. The Hearst kidnappings having

been made the biggest case in American

history since the death of the Lindbergh's

baby, see State v. Hauptmann, 115 N.J.L.

412, 180 A. 809 (i935), cert.den. 296 u.S.

649; quoted with approval in Commonwealth

vy. Fugmann, 330 Pa. 3, 198 A. 99 (1938),

and having become an important chapter in

the history of the Federal Bureau of In-

vestigation, see Fditors of Look, The Sto-

ry of the FBI (New York: E.P. Dutton) at

89-90, not surprisingly Petitioner was and

remains desirous of issuing his own edi-

tion of Patty's Life and Times, a desire

until now checked by certain legal consi-

derations, Curtis Publishing Co. v. Butts,

388 U.S. 130 (1967); Proto v. Bridgeport

Herald Corp., 136 Conn. 557, 72 A.a@ 820

(1950), considerdtions which Petitioner

had hoped the instant action would cure.

B. The Instant Action.

On 19 March 1981, Petitioner filed

the original complaint with the United

States District Court for the District of

Connecticut. Appendix J, infra, for text.

See Mars v. Commercial and Savings

ank of Winchester, Virginia, 265 Pteep.

(W.D.Vir-, 1967)3 cation of Ei-

senbderg, 654 F.% 1107, ili3n. A5, 1981);

cf. Craig v. Harney, 331 U.S. 367 (1947).

n e

Reeves v. American Broadcasting Com-

anies, Ces 719 F.a 600 ’ ’ de-

cided subsequent to the original submis-

sion of the instant petition, another pan-

el of the Second Cireuit held that fair

reporting of a grand jury's investigation

“anto practices of the entertainment indus-

_< try was privileged under Cal.Civ.Code §47

as supported by cases interpreting the

constitutional proscription of Amendment I.

Petitioner alleged that the action arose

from Respondent's failure to comply with

the requirements of the Hornblower's Pro-

vision, 18 U.S.C. §3332(a), 84 Stat. 924,

and that the district court had jurisdic-

tion pursuant to provisions located in 28

U.S.C. §§1331(a), 1343(4), 1361, 1391(e),

and 2201. Complaint at 193-14, Appendix

J, infra. Prayer for mandamus was predi-

cated on allegations that:

The provisions of Title 18,

United States Code, §3332(a)

grant unto Plaintiff a "civil

right" within the meaning of

1345(4); Satd-previstens ike

wise impose upon Defendant a mi-

nisterial duty, Title 18, United

States Code, §3332(a) encompas-

Sing in part a positive command

which is free from doubt;

Complaint at 912, Appendix J, infra; that:

By his refusal to present

Plaintiff and Plaintiff's inves-

tigation and evidence to the pro-

per special federal and jury,

as is required by Title 18, United

States Code, §3332(a), Defendant

has deprived Plaintiff's works

of an element of their marketa-

bility, since in the absence of

a certification of truthfulness,

any responsible publisher must

as a matter of law be hesitant

to contract Plaintiff's works;

Complaint at 921, Appendix J, infra; and

By his refusal to present

Plaintiff and Plaintiff's inves-

tigation and evidence to the pro-

per special federal grand jury,

as is required by Title 18, Uni-

ted States Code, §3332(a), Defen-

dant has altered the conclusion

. of Plaintiff's fourth manuscript

in a material way, which altera-

tion Plaintiff asserts has de-

prived Plaintiff's work of its

immortality; and if Defendant is

not mandamused to perform the mi-

nisterial act required by Title

18, United States Code, $5332(a),

and requested of him by the

Plaintiff, Plaintiff will suffer

immediate and irreparable injury,

for which damages at law are in-

adequate.

Complaint at 922, Appendix J, infra.

founded in the law of libel.

The complaint gave notice that the

gist of these latter alleged injuries was

Complaint at

7715-19, Appendix J, infra; see Conley v.

Gidson, 355 U.S. 41, 47-48 (1957).

On 31 March 1981, the district court

dismissed the complaint sua sponte and

proffered in support a one-page memoran-

dum. Appendix E, infra; see Merckens v.

F.I. DuPont, Glore Forgan & Co., 514 F.m

20 (CA2, 1975). Upon effort to amend, Re-

spondent, relying upon Linda R.S. v. Ri-

chard D., 410 U.S. 614 (1973), interposed

the defense of Executive privilege, asser-

ting that the basic cause of the action

rested upon a proposition lacking legal

recognition and that want of the requisite

nexus therefore existed between the injury

alleged and relief sought. Petitioner in

response argued that Respondent's invoca-

tion of prosecutorial discretion was pre-

mature, since a “prosecution” does not

"commence" until after the initiation of

a court proceeding by indictment or infor-

mation, In re Grand Jury, January, 1969,

315 F.Supp. 662 (D.Md., 1970), and that

presentment by grand jury is not an "in-

-dictment." United States v. Cox, 342 F.2

167 (CA5, 1965), cert.den. sub nom. Cox v.

Hauberg, 381 U.S. 935. Petitioner asser-

ted an implied right of action under §

3332(a), see Universities Research Assn.

v. Coutu, 450 U.S. 754, 768n.17 (1981),

residing in the inherent conflict of in-

terest entertained by “Respondent and his

superiors,” see United States v. serPico,

522 F.m 41, 69 (CA2, 1975), in instituting

further proceedings relating to the Hearst

case. See generally Miller v. Mallery,

410 F.Supp. 1283 (D.Ore., 1976).

The Government's representatives long

nave taken the position that Patricia

Hearst voluntarily joined the SLA's rebel-

lion and that, of consequence, she was not

telling the truth at her trial in San

Francisco in 1976. Since Miss Hearst must

be either credible or incredible (this not

being one of those instances where a page

of hiotery is worth a volume of lenses.

the Government's representatives cannot

take an official position which obliges

them to say she is both. The Government

The district court denied Petitioner's

motion. Appendix F, infra; see also Appen-

dix K, infra (text of amended complaint).

On 31 August 1981, Petitioner filed timely

notice of appeal.

Prior to filing his appellate brief,

Petitioner filed with the Second Circuit

four procedural motions in an effort to

amend his complaint (this time pursuant to

28 U.S.C. §1653, 62 Stat. 944) and also to

certify to this Court the jurisdictional

cannot oppose efforts by her to have her

conviction reversed, see United States v.

Morgan, 346 U.S. 502, 505 (1954); United

a — v. Cariola, 323 F.a 180, 183 (CA3,

United States v. Keogh, 391 F.2

iw (Ca? 1968); Garrison v. United States,

154 F.2d 106, 107 (CA5, 1946), and at the

same f*- support hacks by Petitioner

whicn cannot but have the effect of dis-

crediting her conviction. Such explains

the plea of Executive privilege.

What a convenience that Respondent and

his superiors have chosen to believe that

position which “coincidentally” blocks all

attempts to apportion at least some of the

its egg | for what happened to Re-

spondent or his predecessors! But, then,

it should come as no surprise that bureau-

eracies prefer to pursue that course which,

first of all, protects themselves.

question. This second amended complaint

alleged jurisdiction to arise under the

First and Fiftn Amendments to the Consti-

tution of the United States as well as un-

der the Hornblower's Provision, with cor-

responding statutory authority to be found

in 28 U.S.C. §§1331(a), 1343(4), 1361,

1391(e), and 2201. Standing to sue was

alleged and predicated upon 5 U.S.C. §702

and Bivens v. Six Unknown Named Agents,

Federal Bureau of Narcotics, 403 U.S. 388

(1971). Summarizing, the second amended

complaint alleged that (1) Petitioner was

directly and personally interested in ob-

liging the statutorily required presenta-

tion by Respondent to the special federal

grand jury, not only as witness, investi-

gator, and private citizen but also as au-

thor and nistorian, publication of whose

work and pursuit of whose career directly

were and remain dependent upon the presen-

tation, so that the presentation was and

is a matter "vital" to him; and (2) Respon-

dent had a conflict of interest generated

by nis legal obligation both to protect

the Government's case against efforts by

Patricia Hearst to overturn her conviction,

United States v. Hearst, 638 F.a 1190 (CA9,

1980), cert.den. 451 U.S. 938; see note 12,

p.- 12, supra, and to attack the Govern-

ment's case upon formal request by Peti-

tioner, which conflict of interest was and

remains sufficiently severe to imply to

Petitioner a private right of action. See

Appendix L, infra. Leave to amend again

was denied, as was the motion to certify

the question. See Appendix C, infra.

Upon rescheduling of the appeal, Re-

spondent argued that the district court

was correct in its actions because (A):

The provisions of 18 U.S.C. §

3332 that describe the ‘powers

and duties' of special grand

juries neither create statuto-

ry civil right, nor confer an

implied right of action in fa-

vor of people wanting to submit

information to special grand

juries,

and (B):

Appellant lacks standing because

he has failed to establish that

the requested relief will remedy

any direct or certain injury

caused by the disputed Govern-

ment action.

Crim v. Hunter, #81-6177 (CA2), Brief and

Addendum for Appellee at 4, 8. Petitioner

contestéd this by analyzing jurisdiction,

standing, cause of action, relief, and

structure and history of the Hornblower's

Provision. Id., Brief and Reply Brief of

Appellant.

C. Opinion of the Panel.

The opinion and order of the court of

appeals was to the following effect:

A private person has no stan-

ding to contest policy decisions

of United States Attorneys when

such a private person himself

neither is prosecuted nor threa-

tened with prosecution. Linda

R.S. v. Richard D., supra,

U.S. at 619. The statute in-

voked is a directive to the Uni-

ted States Attorney which does

not confer standing. 18 U.S.C.

§3332(a); Universities Research

ae v. Coutu, supra, 450 U.S.

at 770; Touche Ross & Co. v. Re-

dington, 442 U.S. 560, 575-576

CIS?S); Cort v. Ash, 422 U.S.

66, 78 (1975). Because Peti-

tioner must stand to profit di-

rectly from the relief he seeks,

want of a nexus exists between

injuries he alleges and the re-

lief he seeks. Finda R.S. v.

Richard D., supra, S10 U.S. at

° he allegation of loss of

marketability is not within the

zone of interest protected by

the Hornblower's Provision

Wert ¥. Seldin, 422 u.s. 490

(1975); Linda R.S. v. Richard D.

supra; Association of Data Pro-

cesSing Services, Inc., v. Samp,

397 ve. 130 (1970), and is in-

direct, speculative, and remote,

Crim v. Hunter, supra, Opinion

of Panel at ce. us, failure on

the part of Petitioner to plead

a judicially cognizable injury

bars the second action upon the

principle of res judicata. See

Crim v. Bell gg supra, O-

pinion of 10 April 1979.

Rehearing was sought en bane upon the

proposition that the panel erred in fail-

ing to recognize a civil right possessed

by Petitioner the fruit of Congressional

action in passing the Hornblower's Provi-

Sion. Petitioner further pointed out that

following the panel's analysis to its lo-

gical conclusion generated an insane con-

sequence, at least under the facts suppor-

ting the instant action. As Petitioner

put it to the Second Circuit:

Plaintiff has difficulty with

the proposition that the Supreme

Court by the barest majority ev-

er meant to substitute in plain-

tiffs for a specific right of

procedure a general right to re-

bellion.

Crim v. Hunter, supra, Petition for Rehear-

ing En Bane at 3.

The petition seeking rehearing was de-

nied, see Appendix B, infra, and a further

motion to recall mandate and allow amend-

Linda R.S. v. Richard D., supra, 410

U.S. at b19n. 5; United States v. Hicks,

625 F.2 216 (CA9, 1980), reh.den.; Orr v.

Orr, 440 U.S. 268 (1979 ; accord Strauder

Vv. State of West Virginia, 100 U.S. 303

T1880); see A Licatton of American Broad-

; u

casting Companies, Supra.

ment of pleadings, see Appendix M, infra,

also was denied, see Appendix D, infra.

Petitioner now seeks writ of certiorari to

; l4

review these lower orders and opinions.

REASONS FOR GRANTING THE WRIT

A. Introduction.

In Branzburg v. Hayes, 408 U.S. 665

(1972), this Court considered the ques-

tion: What was to be done when a news re-

porter witness to a crime refuses to talk

to a grand jury convened to investigate

that crime. The instant petition at its

root might be said to be concerned with

A third amended complaint was filed

with the district court on 01 November

1982 after the court granted yet another

of Petitioner's procedural motions, this

one filed pursuant to Rules 59(a) & 60(bd),

Fed.R.Civ.Pro. This proffered amended

complaint is too long and far too compli-

cated in its allegations and proofs to re-

produce in the appendix to this petition;

Complaint (as amended III) was referred by

the trial court to the magistrate, who de-

nied the motion to amend. See Brack v.

Wells, 184 Md. 86, 40 A.w 319, I56 A.ZL.R.

324 (1944).

the opposite side of that coin: What is

to be done when a news reporter witness

to a possible crime wants to talk toa

grand jury convened to investigate crime

when the Government, the Executive, appa-

rently prefers to turn its back on the

matter. In Branzburg, this Court left

little doubt where it stood in relation to

the fundamental question. Said the Court:

Similar considerations dis-

pose of the reporters’ claims

that preliminary to requiring

their grand jury appearance,

the State must show that a crime

has been committed and that they

possess relevant information not

available from other sources,

for only the grand jury itself

can make this determination.

The role of the grand jury as an

important instrument of effec-

tive law enforcement necessarily

Petitioner is an accredited historian

with a degree in that art from the Univer-

sity of California. Complaint (as amended

IV) at 93(a), Appendix M, infra. He was

present for much of the trial of Miss

Hearst, covered the trial of the Harrises,

see yh, U.S. 862, for Rolling Stone, and

subsequently worked for two years for a

newspaper, the Waterbury (Ct.) Republican.

includes an investigatory func-

tion with respect to determining

whether a crime has been commit-

ted and who committed it. To

this end it must call witnesses,

in the manner best suited to

perform its task. "When the

grand jury is performing its in-

vestigatory function into gener-

al problem areas .. . society's

interest is best served by a

thorough and extensive investi-

gation." Wood v. Geodr ma 370

U.S. 375, 392 (196 A grand

jury investigation *is not fully

carried out until every avail-

able clue has been run down and

all witnesses examined in every

proper way to find if a crime

has been committed." United

a, 5 Stone, 429 F.a 136,

» Such Se inves-

ti pl : be tri r

: oh may “ev eee nes

b by. the prosecutor, or the the gears

nal “knowled t e

rors. costello ° v. U 2 Ste tes,

350 U.S. 1350, 4 at 362 [19 56 J.

It is only after the grand jury

has examined the evidence that a

determination of whether the

proceeding will result in an in-

dictment can be made: * * #

408 U.S. at 701-702 (emphasis added). This

Court went on to observe that:

it is obvious that agreements to

conceal information relevant to

commission of crime have very

little to recommend them from

the standpoint of public policy.

Historically, the common law re-

cognized a duty to raise the

"hue and cry” and report felo-

nies to the authorities.

408 U.S. at 696. In that at common law,

a private individual had an unqualified

right to appear before a properly convened

grand jury and lay an indictment before

it, Brack v. Wells, supra, 40 A.w at 322,

156 A.L.R. at 328, Petitioner initially

must be acknowledged to be on the most

firm ground in the proffering of this pe-

tition. U.S. Const., Amends. V, IX; see

Complaint, 998-12, Appendix J, infra.

Boe U8 laney v. Sratee 7 es 153,

21 A. ; Im re Opinion to Govern-

or 62 RTs 200, UR. SUED CisoTy People

v. Sheridan, 349 Ill. 202, 208, 181 WE

617, 619 (1932); People ex rel. Ferrill v.

raydon, Sheriff, 333 T 3 Ill. 429, 433, 164

Ze 2. B34 (1928 ’ reh.den. (1929) 5

Miller v. State, 42 Fla. 266, 28 So. 208

Ys tate ¥. aker, 33 Sac gel 10

S.E. 639 (1559); Regina v. Russell, Car.

& M. 247; Thompson & Merriam, Juries §609

(1882); I Stephen 244-250, 293, apesing 4

Russell 1778; see Burroughs, Criminal Law

and Procedure, 51 Law.Q.Rev. 36, 50.

B. The Appellate Panel Has Not Performed

the Analysis of Petitioner's Asserted

Rights Which the Second Circuit in

Its Previous Decisions Required.

Review of the order of the Second Cir-

cuit's panel entered with the clerk on 17

December 1982 establishes that the panel

did not perform the analysis of Petition-

er's asserted rights which the circuit in

its previous decisions has required. Pe-

titioner was:‘cast in the role of a plain-

tiff contesting the validity of a penal

statute or policies of a prosecuting au-

thority when neither prosecuted himself

nor threatened with prosecution. Crim v.

Hunter, supra. But, even Respondent must

admit that Congress may enact statutes

creating legal rights, the invasion of

which creates standing even though no in-

jury exists without the statute. Linda R.

S. v. Richard D., supra, 410 U.S. at 617n.

3; accord Warth v. Seldin, supra; Hardin

v. Kentucky Utilities Co., 390 U.S. 1

(1968); see Board of Supervisors v. Simp-

son, 36 Cal.@ 671, 227 P.mw 14 (1951). A

gravamen of Petitioner's complaint is that

a right secured to him by statute, regula-

tion, custom, or prior agency practice is

infringed by Respondent's inaction.

Since the gist of the question of standing

is whether an individual has alleged "such

. @ personal stake in the outcome of the

controversy” that the “concrete adverse-

ness which sharpens the presentation of

issues upon which the court so largely de-

pends for illumination of difficult con-

stitutional questions” is assured, Baker

Complaint, 99-12, 20, Appendix J, in-

fra; Complaint (as amended), 9910-12, 21,

Appendix K, infra; Complaint (as amended

It), MT14-16, 25, Appendix L, infra; Com-

plaint (as amended III), 915-17, 26; Com-

plaint (as amended IV), 995(b,c,d), 6(a),

10 (a,e), Appendix M, infra.

Federal courts have no power per se to

review or annul Acts of Congress on consti-

tutional or other grounds save when “the

v. Carr, 369 U.S. 186, 204 (1962); see

United States v. Nixon, 418 U.S. 683, 696-

697 (1974), the focus of the question of

Petitioner's standing must be his asserted

right to be presented to a special federal

grand jury. Petition of Thomas, Me.

» 434 A.M 503 (1981); accord Moose

Lodge No. 107 v. Irvis et al., 407 U.S.

163 (1972); see Rogers v. Missouri Pacific

Railroad Co., 352 U.S. 500 (1957). The

justification for some direct injury suf-

fered or threatened, presenting a justici-

able issue, is made to rest upon such an

act. Then the power exercised is that of

ascertaining and declaring the law applica-

ble to the controversy. It amounts to lit-

tle more than the negative power to disre-

gard an unconstitutional enactment, which

otherwise would stand in the way of the en-

forcement of a legal right. * * * Ifa

case for preventive relief is presented,

the court enjoins in effect not the execu-

tion of the statute, but the acts of the

official, the statute notwithstanding.”

Frotningham v. Mellon, 262 U.S. 447, 488

(1923); see also Baker v. Carr, supra,

loc. cit.; Liverpool, N.Y.& P. Steamship

Co. v. Commissioners of Fmigration, 113

; argues v. Madison, 1

U.S. 33, 39

Sranch 137 (3.50% ; see Flast v. Cohen, 392

U.S. 83 (1968); see also Knowlton v. Moore,

178 U.S. 41 (1899).

Court is obliged to turn to the source of

the right asserted to assess Petitioner's

first claim of injury. Nash v. Califano,

613 F.a10 (CA2, 1980). The panel in its

appellate opinion has not attempted this

reguired analysis. Crim v. Hunter, supra.

C. Failure of the Appellate Panel to

Perform Appropriate Analysis of Pe-

titioner's Asserted Right Places Its

Order of 17 December 1982 at Variance

with Decisions of Other Circuits and

at Least Two of the States.

As related, at common law, a private

person had an unqualified right to appear

before a properly convened grand jury and

lay an indictment before it. In that the

grand jury incorporated into the Constitu-

tion was the grand jury as it existed in

England prior to colonization, it must

United States v. Dionisio, 410 U.S. 1,

17n.15 (1973); in re Grand Jury, January,

follow that private persons in the United

States retained the right to offer them-

selves before the grand jury to present

evidence and information to it. United

States v. Smyth, 104 F.Supp. 283, 295-298

(N.D.Cal., 1952); Wharton, Criminal Law

(7th ed, 1874), §453 at i:356; William Brad-

ford, Letter to Edmund Randolph, 20 Feb.

1794, Op.Atty.Gen. 22.

Petitioner is prepared to show that

nothing in the development of the law du-

ring the last two hundred years has affec-

ted that right adversely. Granting that

grand juries are creatures of statute,

States y= fox, supra, Biz F.2 at 180 (wis-

dom, J., concurring specially); United

States v. Smyth, 104 cee: 283, 289-290

(N.D.Cal., 1952); In re Opinion to Gover-

nor, supra; see People ex re errill v.

don,

Gray heriff, supra; Hurtado v. Cali-

ornia, 110 U.S. 516, 556 (1884) (Harlan,

J., dissenting); "The Grand Jury as an In-

vestigatory Body," 74 Harv.L.Rev. 590.

United States v. Christian, 660 F.2

892 (CA3, 1981); United States v. Fein,

and granting that there arose in the last

century a movement rooted in public dis-

trust of private prosecutions, Wharton,

supra, §452 at i:355, to restrict private

access to grand juries, Act of 10 June

1872, c. 420, 17 Stat. 378, it remains

noticeable that by its clarifying amend-

ment of 1948, 62 Stat. 770, 18 U.S.C. §

1504, 18 U.S.C.A. §1504, Congress repealed

any and all prohibitions against proper

petitioning of the grand jury by private

parties for the purpose of appearing be-

fore it. Thus, the basic state of the law

504 F.2% 1170, 1172 (CA2, 19

Mills, 135 U.S. 263, 267 (6

tado v. California, supra.

See Charge to ed Ju #18,255, 30

F.Cas. 9 Sawy. 667 (C. of D.Cal., 1872);

United States v. Kilpatrick, 16 F. 765 (W.

D.N.c., 1603); 18 U. - C. (1940) §243, 35

Stat. 1113; accord Brack v. Wells, supra;

see Duke v. United States, 112 A.L.R. 317

(CA4, 1937), cert.den. 302 U.S. 685, mot.

den. 302 U.S. 649, reh.den. 302 U.S. 775,

mot.den. 302 U.S. 650; People a Doss, 382

Ill. 307, 46 N.E.% 984 “People v.

Parker, 374 Ill. 524, 30 NW ede 11 Ligus),

cert.den. 313 U.S. 560.

both in 1970 when the Hornblower's Provi-

sion was passed and today, see Merrill

Lynch, Pierce, Fenner & Smith v. Curran,

456 U.S. 353, 378 (1982), is no less

than the state of the law as it existed in

1794. United States v. Tynen, 11 Wall. 88

(1870); see State v. Baker, supra, 10 S.E.

at 640. Furthermore, by the language of

42 U.S.C. §1981, R.S. §1977, the right

tnis Court long has recognized of grand

jurors to present to their colleagues evi-

dence of crime originating from their own

knowledge, United States v. Calandra, 414

U.S. 338 (1974), would appear to extend

equally to Petitioner subject only to such

considerations as are necessary to assure

regularity in the inquisitorial function.

Hence, the language of the Hornblower's

Provision, 18 U.S.C. §3332(a), when taken

. See also Leo Sheep Co. v. United States

et al., 440 U.S. , 669 (1979); Unite

States v. Union Pacific Railroad Co., 9

U.S. 72, 79 (1875).

. . . 4 a

together with its legislative history,

supports the proposition that this section

of the Code of Criminal Procedure, far

The Hornbdlower's Provision derives

from a section of the original bill, S.30,

first passed by the Senate on 23 January

1970, 2 U.S.Cong.& Adm.News 1970 at 4012,

by a vote of 73 to 1, Cong.Rec. (House, 10

March 1970) at 6708. While the Senate Ju-

diciary Committee in its report, No. 91-

617, made no mention of the Hornblower's

Provision, Cong.Rec. (Senate, 18 Dec. 1969)

at 39906, the Department of Justice did of-

fer its own analysis of the bill's sections

regarding special ares juries. Relevant

to the instant petition is the following:

Section 3324(c) Lsic] provides

that no person shall be deprived

of opportunity to communicate to

the foreman of a grand jury any

information concerning any offense

against the criminal Saws of the

United States alleged to have been

committed within the district.

Section 1504 of Title 18, United

States Code, presently makes it an

offense for anyone to agp es to

influence the action or decision

of any grand or petit juror upon

any matter pending before it [sic]

by a written communication. his

provision is apparently intended

to make it clear that no viola-

tion of this section is committed

by a person who merely communi-

cates to the foreman of a and

jury any information regarding any

offense against the laws of the

lia

from being merely a "directive" to the

United States Attorney, Crim v. Hunter,

Supra, Opinion of Panel at 2, citing Uni-

United States. This provision

could well encourage wider orga-

nized crime and w » therefore,

Support it. (Sic

Cong.Rec. (Senate, 18 Dec. 1969) at 39911.

(Petitioner will resist temptation to com-

ment on the last sentence.) The House

Judiciary Committee, under fire from ci-

vil-liberties groups (particularly with

regard to $3333), made major revisions in

Title I, and the other titles as well,

with the result that §3324(c) of the bill

which passed the Senate became the Horn-

<u Hh Provision of $2232(a) As a mat-

ter of procedure, Petit ae Thomas, su-

bra, the United States A omnes is inter-

—" between the complaining witness and

he special grand jury (this to allow the

Prosecutor to attach a professional recom-

mendation which can weed obvious cranks),

see United States v. Chanen, 549 F.m% 1306,

1311° (CAS, ee aoe U.S. 525!

Oppedge v. United States, 311 F.m% 12

COMBE“ Foks Caste? States, U.S. 946, but

the House Report on the Act, No. pi-1549,

2 U.S.Cong.& Adm.News 1970 at 4014, see

at note 43, makes it clear the in-

erposition is ministerial, being a posi-

tive command which is free from doubt.

Prarie Ray Of PeApe of pot reweronte Indi-

1966), cer pag PE U.S. 831; sour! =

upervisors v. mpSon, supra, a at

17; see Hott b

Hott v. far orough, 112 Tex. 179,

245 S.W. B76 (1922); Anderson v. Yungkau,

versities Research Assn., Inc., v. Coutu,

supra, 450 U.S. at 770; Touche Ross & Co.

329 U.S. 482, 485 (1947). And if there be

any remaining doubt, Petitioner believes

the words of Rep. (now Judge) Mikva of

Illinois, a staunch opponent of the bill

(see 2 U.S.Cong.& Adm.News 1970 at 4076-

91), will allay them:

All of us I am sure have come

across strange characters who

are convinced that they have un-

covered the scandal of the ages.

They are people who are con-

vinced that the entire history

of this country was written in a

conspiracy and that every elec-

ted official and anyone else in

a newsworhty capacity is in-

volved in a conspiracy to bring

down the democracy. Under this

bill the U.S. attorney fale)

must take as real every single

complaint that is brought to him

by any such person and present

it to the grand jury. This real-

ly makes every U.S. attorney

Lsic] into a gossipmonger. be-

cause he has to take every loose

tale or story and present it to

the grand jury no matter how ri-

diculous it may be; then it is

available to the grand jury to

procede from there.

Cong.Rec. (House, 06 Oct. 1970) at 35204-

tf In response to Rep. Mikva's asser-

ons, not one congressman stood to speak

and Cort v. Ash, supra, 422 U.S. at 78, in

actuality is an incorporation into the

creation of special federal grand juries

in opposition. So, it must be presumed

That the members of the House present on

06 Cetober 1970 for this controversial de-

bate knew exactly and fully approved of

what they eventually voted for. Indeed,

the very next day, Rep. McCulloch, the

chairman, yielded three minutes to “a

long-time member of the House Judiciary

eae Rep. Cramer of Florida, who

said:

Mr. Chair » when we had kid-

napings tie] in America -- for

instance, the famous Lindbergh

case -- the American people i

manded action and the Congress

acted. They demanded that some-

thing be done to stop the hei-

nous kidnaping [sic] of children

in America. ft was done. Kid-

naping tsic has almost come to

a halt because of the action ta-

ken by the Congress at the demand

of the people. I hope bombings

will come to a similar halt. [An

important title of the Act wa

Title Ix, explosives control.

The radical revolutionaries in

this country have as their intent

and purpose the disruption of law

and order in America, the killing

of as they say “the pigs,” mean-

ing the policemen, and the tear-

ing down and bombing of as they

say “the pigsties,” meaning, of

course, the police headquarters

and the jails.

Sad

of those historic features concerning pri-

vate witnesses needed to make those juries

truly “more independent of court and pro-

Mr. Chairman, the time has

come for Congress to act. I am

delighted to see it is doing so,

and in particular using the Lind-

bergh law pattern and saying to

the bombers that we are going

to put them out of business, and

if they do not get out of busi-

ness, the death penalty can be

invoked if they kill someone in

a bomb attack * * * such as the

graduate student at the Univer-

sity of Wisconsin who was killed

in the bombing of the library of

research faci lity iste). =.

Frankly, I believe it is a

national plan. It is not just

nes Pp I believe it is a

national, planned ye on the

part of a very small number of

radical revolutionaries who want

to destroy our institutions in

this country.

Cong.Rec. —" 07 poy 1970) at 35305;

see Jane Alpert, Grow _ Up Underground

(New York: Wm. Morrow te TSety. Rep.

Cramer no doubt overstates the case -- the

student unrest of the 1960's and 1970's

was widespread and deep and generated a

number of independently operating terror-

ist organizations allied (and often divi-

ded) by nothing more than a generally sin-

lar ideology --; however, such dilutes

etitioner's point not one little bit:

The law (the intent behind which was Rep.

Cramer's) requires Respondent to act.

secutor,” and a counterbalencing of that

incorporation with a mode of procedure de-

signed to check those abuses which more

recent history has taught may come with

unrestricted access to grand jurors. The

Cong.Rec. (House, 10 March 1970) at

6708 (Rep. Poff); Cong.Rec. (House, 06 Oct.

1970) at 35197 (Rep. McCulloch); id. at

35215 (Rep. Halpern); Cong.Rec. (House, 07

Oct. 1970) at 35290 (Rep. Poff); id. at

35311 —. Flowers); id. at 35313 (Rep.

Minish); id. at 35321 (Rep. Anderson); id.

at 35328 (Rep. Meskill). :

423

"As contained in the Senate-passed ver-

sion such special grand juries were large-

| independent of court control. Some

witnesses opposed this aspect of indepen-

dence from the courts. The House Judicia-

ry Committee altered the Senate version so

as to bring the special grand juries more

under the control of the Federal courts.

* * * |TJhe grand jury generally is thought

of as an ‘arm of the court.’ The House

Committee version recognizes that court

control is desirable.” Cong.Rec. (House,

07 Oct. 1970) at 35303 (Rep. Railsback).

House Report No. 91-1549, 2 U.S.Cong.&

Adm.News 1970 at 4014, in commenting on

§35332(a), specifically declares:

Section 3332(a) makes it the

duty of a special grand jury im-

paneled within any district to

inquire into Federal offenses al-

leged to have been committed

language of the provision tracks very well

with similar language to be found in 15

Me.R.S.A. §1256 (see Petition of Thomas,

supra, 434 A.a% at 505); the State of Texas

long has had a statute to similar effect,

Hott v. Yarborough, supra, and thus the

opinion of the panel of the Second Circuit

conflicts at its foundation with opinions

on the subject from these two States. See

also 8 U.Chi.L.Rev. 561, 562n.4.

, There are similar, though admittedly

within the district. As amended

by the committee, alleged offen-

ses may be brought to the atten-

tion of the special grand jury

by the court or by any attorney

appearing on behalf of the Uni-

ted States for the presentation

of evidence. Any such attorney

who receives information of an

alleged offense from any person

must, if requested by that person,

inform the grand jury of the al-

leged offense, the identity of

the person who conveyed the in-

formation, and his own action or

recommendation.

Id. at 4015 (emphasis added); see lica-

tion of Thomas, supra; cf. Hott v. Yerbo-

rough, supra; see further Anderson Vv.

Yungkau, supra, loc. cit.

less direct conflicts at the federal le-

vel. The most authoritative opinion of

the Northern District of California, Uni-

ted States v. Smyth, supra, loc. cit., and

the most recent, relevant opinion of the

Ninth Circuit, United States v. Chanen,

supra, loc. cit. and at 1312-13, appear to

be opposed diametrically on the question,

with the Chanen position slowly making in-

roads into the opinions of the Southern

District of New York. United States v.

Chovanec, 467 F.Supp. 41, 43 (1979); see

also United States v. Steel, 238 F.Supp.

580 (1965). This is most interesting,

since Chanen cited for authority not only

In re Subpoena of Persico, supra (a Second

Circuit case not supportive of the propo-

sition at all), but also United States v.

Cox, supra, the four-opinion decision of a

circuit which, after having been split,

appears on the verge of rejecting United

States v. Kilpatrick, supra (rendered pri-

or to Congress' 1948 amendment to 18 U.S.C.

§1504), and siding with Judge Fee in Smyth.

United States v. Cosby, 601 F.a 754, 757-

759 (1979). The Seventh Circuit tacitly

has sided with the Fifth, Cawley v. Warren,

216 F.a 74, 76 (1954), citing People ex

rel. Ferrill v. Graydon, Sheriff, supra;

likewise, the D.C. Circuit appears to be

in harmony with Petitioner, Medical Com-

mittee for Human Rights v. S.E.C., 432 Fem

659, 673-674 (1970), vac. and rem. for

mootness 404 U.S. 403 (1972); accord Hale

v. F.C.C., 425 F.m 556, 565-566 (1970)

(Tamm, J., concurring in judgment), an ap-

pearance slighted only slightly because

the author of the leading case on the sub-

ject, see Office of Communication of Uni-

ted Church of Christ v. F.C.C., 425 F.w

543, 546-547 (CADC, 1969), reh. en banc

den. 425 F.&% 551, was cited in support by

the panel in Chanen, 549 F.# at 1311, ci-

ting Coppedge vy. United States, supra.

These conflicts provide this Court

with more than adequate reason to grant

the writ and a golden opportunity to say

authoritatively what the law is concerning

how private citizens are to go about play-

ing their rnole in the prosecution and sup-

pression of crime. Cf. Parker v. People

of Illinois, 332 U.S. 846 (1948).

D. Applying Broad Dicta of Linda R.S. v.

Richard D. to the Facts of the In-

stant Action Generates Absurd Conse-

quences and Fundamental Injustice.

Respondent's argument, accepted by

the court below, that the instant action

falls within the broad prohibition of Lin-

da R.S. v. Richard D., supra, 410 U.S. at

619, when made upon the facts underlying

the instant action's predication, supra at

1-8, generates absurd consequences and

fundamental injustice. Linda R.S. v. Ri-

chard 2. stands literally for the proposi-

tion that, to challenge prosecutorial po-

licies, one deliberately must subject him-

self to prosecution, a fine theoretical

argument based upon an appreciation of se-

paration-of-powers doctrine -- except that

under the current factual array, "separa-

tion of powers” becomes a covert catch-

phrase for justification of felony. 410

U.S. at 619n.5; United States v. Hicks,

Supra; Orr v- Orr, supra; accord Strauder

v. State of West Virginia, supra; see Ap-

plication of American Broadcasting Compa-

nies, supra. Such a "John Wayne" approach

to the problem of law enforcement is pre-

cisely what the Ninth Circuit criticized

in Finn v. United States, 219 F.m 894

(1955), reh.den. 219 F.m% 903, mot.granted

219 F.m 904, cert.den. 75 S.Ct. 583. The

law's providing for acceptable substitutes

for violence in the settling of disputes

is an essential element of its civilizing

function. Afro-American Publishing Co. v.

Jaffe, 366 F.a% 649, 660 (CADC, 1966); ac-

cord Rosenblatt v. Baer, 383 U.S. 75, 91

(1966) (Stewart, J., concurring). Respect

for the rules of due process are essential

to securing the rights of all under a sys-

tem of ordered liberty, and to preventing

false deprivations. Marshall v. Jerrico,

Inc., 446 U.S. 238 (1980); Application of

Yamashita, 327 U.S. 1, 27 (1946)(Murphy,

J., dissenting); United States v. Fein,

supra, 504 F.w at 1181; see Application of

Yamashita, supra, 327 U.S. at 81 (Rutledge,

Js, dissenting).

In the instant matter, the proper

procedure is to oblige the Executive to

assume responsibility for his properly

discretionary acts. See Pugach v.’ Klein,

“(tT ]he proper response to an arguably

illegal action is not lawlessness by jud-

ges charged with interpreting and enfor-

cing laws. * * * Our Constitution assures

that the law will ultimately prevail, but

it also requires that the law be applied

in accordance with lawful procedures."

Holtzman et al. v. Schlesinger, 414 U.S.

1308, 1315 (1973).

193 F.Supp. 630, 635 (SDNY, 1961). The

construction currently afforded in effect

allows the Executive to shield a (bogus)

claim of insufficiency in the evidence

with a(n equally bogus) claim of Executive

privilege. Neither the courts of the

Fifth Circuit nor the courts of Maryland

tolerate such a proposition, United States

v. Cox, supra, 342 F.a& at 185 (Brown, Jd.,

concurring specially); Ewell v. State, 207

Md. 288, 114 A.a 66, 71 (1955). The Su-

preme Court should not, nor does Petition-

er think it does, tolerate it either.

Rules of procedure should not be designed

so as to make men become “laws unto them-

selves,” Olmstead v. United States, 277

U.S. 438, 485 (1928)(Brandeis, J., dissen-

ting), and where the "“unconstitutionality

of the course pursued has now been made

clear,” the particular proposition advan-

ced, that Executive control of the prose-

cutorial function extends to determination

of what a grand jury shall be allowed to

hear, Crim yv. Hunter, supra; Linda R.S. vy.

Richard D., supra, 410 U.S. at 619, needs

to be abandoned. Cannon v. University of

Chicago, 441 U.S. 677, 742 (1979) (Powell,

J., dissenting), citing Erie R. Co. v.

Tompkins, 304 U.S. 64, 77-78 (1938), This

Court should grant certiorari to reconsi-

der the breadth of the dictum laid down in

Linda R.S. and the Second Circuit's exten-

sion of same to the important federal

question of private access to special

grand juries. Heflin v. United States,

358 U.S. 415, 416-417 (1959); see Hale v.

Henkel, 201 U.S. 43, 63 (1906); Frisbie v.

United States, 157 U.S. 160, 163 (1895).

E. Implied Rights of Action Lie under the

Hornblower's Provision Where the Exec-

utive Entertains Conflicts of Interest.

It reasonably may be inferred from

the language of the Hornblower's Provision

that Congress intended a private right of

civil action to lie by implication for the

statute's violation. The Provision focus-

es not only on the duties of the Govern-

ment's attorney but also on the person ma-

king the request for presentation. This

differs from statutes where implied right

pte es

of action has not been found. As Jus-

tice ili J. Carter, Sr., said, speaking

for California's Supreme Court en bane:

That mandamus is the proper

remedy is clear. As pointed

out above, the district attor-

ney must or shall bring an ac-

tion to abate a public nuisance

when so directed by the board

of supervisors. Cod Civ.Proc.

§731, supra; Govt.Code §26528.

"Shall" is mandatory, Govt.

Code §14, and certainly “must”

is also. The writ of mandamus

* Peter of Tomes supra, 434 A.mw

at sth ; Vv ence. . Say De eo “ie

* * **" upe m

supra, 2 ea 3¢ 15 ‘a z such district

attorney = bring such an action when-

bopouah. supre Nase shath ‘be the duty 9

at 68n.1 ("It with Gort Law get’ Ae. e"), ,

issues "* * * to compel the per-

formance of an act which the

law specifically enjoins, as a

duty resulting from an office

* *# #,." Code Civ.Proc. §1085.

The statutes, Code Civ.Proc.

§731; Govt.Code §26528, specifi-

cally “enjoin” upon the district

attorney "as a duty bageont mes,

from (his) office” the bringing

of actions to abate public nui-

sances when directed by the

board of supervisors. It may

well be that where he is not di-

rected by the board he has some

discretion in the matter. Code

Civ.Proc. §731; Stats.1913, p.

20, § 3, but plainly there is

none where he is so directed.

Moreover, in this case he refu-

ses to exercise any discretion

he might have as his failure to

act is based solely upon his

Claim that the duty rests upon

the county counsel; thus manda-

mus would be proper. See Holl-

man v. Warren, 32 Cal.m 351,

196 P.m 562.

Ordinarily a district attor-

ney cannot be compelled by man-

damus to prosecute a criminal

Case, see Boyne v. Ryan, 100 Cal.

265, 4 P. 707; 55 C.J.S., Man-

damus, §69(f), but here the man-

datory duty to prosecute is im-

eee upon him and the statute

eaves him no discretion to ex-

ercise. In Boyne v. » SuU-

ra, the court seemed to feel

hat mandamus would not lie be-

cause the court could not super-

vise the many ramifications of

the prosecution of the action.

In the instant case, however,

the district attorney is not re-

fusing to prosecute the action

for any reason other than his

view that he has no authority un-

der the law. Under these circum-

trp = may ee he will

d ent secute once he has

commenced’ the action. See Code

Civ.Proc., §1963(15).

It is ordered that a peremp-

tory writ of mandamus issue as

prayed.

Board of Supervisors v. Simpson, Supra,

227 P.a at 17 (emphasis added).

Notice Justice Carter distinguishes

between “commencing” the action and "pro-

secuting” the action (which of course in-

cludes discretion to seek dismissal).

LW Jnen there is no clear con-

gressional intent contrary to

iia

. soot Vv. wens cipal C t, 27 Cal.

App.Sis Cal. ptr. ’ A.L.R.&

717 (1972) (appointment by court of private

attorney to serve as “special prosecutor"

held an invasion of legitimate discretion-

ary reserve of Executive and violation of

separation-of-powers doctrine); see

v. Co + see also

2. ®) ra, 418 U.S. a -

7a. :

the implication of private civil

remedies, the adequacy of a sta-

tute's express |sic] remedies

(or alternatively, the necessity

of implied private ones) must be

determined according to whether

those express [sic] remedies in-

sure the full effectiveness of

the congressional purpose under-

lying the statute. In this

sense, when the statute in ques-

tion seeks to protect the indi-

vidual's interest, it is not

enough for it to have some en-

forcement mechanisms: the ini-

tial question is whether the

statute's protection might be en-

hanced by allowing private civil

relief.

Stewart vy. Traveler's Corporation, 503 F.

108, 112 (CA9, 1974) (emphasis original).

In the absence of a clear con-

aressional intent to the contra-

ry, the courts are free to fash-

ion appropriate civil remedies

based on the violation of a * # *#

statute where necessary to insure

the full effectiveness: of the

congressional purpose.

Burke v. Compania Mexicana de Aviacion, S.

A+» 433 F.a 1032, 1033 (CA9, 1970).

Under Cort . A

private rt (ty. apd. no J im-

plied if it would frustrate the

underlying purpose of the legis-

a scheme. On the other

hand, when that remedy is neces-

sary or at least helpful to the

accomplishment of the statutory

purpose, the Court is decidedly

receptive to its implication un-

der the statute.

Cannon vy. University of Chicago, supra,

441 U.S. at 703.

Where the interest asserted by

the plaintiff is within the

Class that the statute was in-

tended to protect, the harm of

the type the statute was inten-

ded to forestall and the statu-

tory criminal penalties inade-

quate to fully protect the as-

serted interest, a civil action

* * * arises by implication.

urke vy. Compania Mexicana de Aviacion, Ss.

A.» supra, 433 F.& at 1034.

Such precisely is the point Petition-

er raises by citing Miller v. Mallery, 410

F.Supp. 1282 (D.Ore., 1976). How can the

purpose of the Hornblower's Provision be

accomplished, absent implication of pri-

vate enforcement actions, when the law in-

terposes between Petitioner and the spe-

cial grand jury the very individual whose

legal job it is to frustrate the prosecu-

tion of his client or its employees? How

can the purpose of the Hornblower's Provi-

Sion be accomplished, absent private en-

forcement actions, when the law obliges

Respondent both to secure a person's con-

demnation before society and breach a wall

protecting that security? There is no an-

swer; this cannot be done.

It must be admitted that there isa

certain appeal to Mr. Justice Powell's dis-

sent to Cannon, 441 U.S. at 730, at least

to this writer. "Sir James Jeans Says

what he means," and Petitioner does not

see why Congress should not be obliged to

113

assume the same responsibility; * however,

: Petitioner currently is involved in

litigation with the Internal Revenue Ser-

vice over several important constitutional

questions centered about this very issue.

oz .

the Court is not writing on a blank slate

on this matter, and it remains a control-

ling fact that, at the time Congress crea-

ted by statute the special grand juries,

see Merrill Lynch, Pierce, Fenner & Smith

v. Curran, supra, loc. cit., Congress was

operating under the aegis of J.I. Case Co.

v. Borak, 377 U.S. 426 (1964). See Can-

non, supra, 441 U.S. at 718 (Rehnquist and

Stewart, JJ., concurring); see also 441

U.S. at 743n.14 (Powell, J., dissenting).

Upon the question of implied right of ac-

tion under the Hornblower's Provision, the

record of Congressional intent is as

sparse as it is because, in the context of

the times, there was no reason for it to

be otherwise. Justice Powell is critical

of the Cort test, Cannon v. University of

Chicago, supra, 441 U.S. at 739-747; see

Cort v-. Ash. supra; however, even Justice

Powell acknowledges that cases involving

rights secured by 42 U.S.C. §1981 are

among those limited exceptions where he

considers implication of private action

appropriate. 441 U.S. at 736. It is

clear from the language of the Hornblow-

er's Provision, §3332(a), that §1981-style

implication deserves consideration. Em-

ployment within the Hornblower's Provision

of phrases such as "(any such attorney,"

"any other person," and “such other per-

son" makes “irresistible” the conclusion

that Petitioner is within the. "zone of in-

terest" protected by the statute. Cannon

v. University of Chicago, supra, 441 U.S.

U.S. 33, 40 (1916).

There can be no doubt that, recently,

this Court has considered cases involving

implied rights of action to be among those

most fit for review. A grand jury being

i1¢

See e.g. ve e

an independent investigative body upon

which the conclusions of the Attorney Ge-

neral are not binding, United States v.

Cox, supra, 342 F.m% at 181 (Rives, Gewin,

and Griffin B. Bell, JJ., concurring in

part and dissenting in part), citing Uni-

ted States v. Thompson, 251 U.S. 407

(1920), cases which hold that a contrac-

ting agency retains the primary responsi-

bility for investigating violations, Uni-

versities Research Assn. v. Coutu, supra,

are not analogous and therefore of no pre-

cedential value. The Court should grant

certiorari to consider whether an implied

right of action lies under the Hornblow-

er's Provision, and if so, what reliefs

may be sought. Rule 17.1(c), S.Ct. Rules.

v. Redington, supra, 442 U.S. at 562; see

further aan Vv. University of Chicago,

supra, 441 U.S. at 680, 730; Gort v. Ash,

Supra, 422 U.S. at 74; see also Davis v.

Passman, 442 U.S. 228, 230 (1979).

F, The Courts Below Erred by Denying Pe-

titioner's Motion to Amend Complaint.

It appears the reason the courts be-

low erred in dismissal of Petitioner's com-

plaint is that they focused on Petitioner's

second claim of injury to the detriment of

the first. The original complaint, Appen-

dix J, infra, failed to allege a sufficient

nexus between the second claim of injury

and the relief sought. Linda R.S. vy. Ri-

chard D., supra. Petitioner attempted to

remedy this defect by amendment, and it

respectfully is submitted that Complaint

(as amended III) and Complaint (as amended

IV), Appendix M, infra, satisfy the objec-

tions of trial and appellate courts. Com-

plaint (as amended IIT) technically still

is before the trial court, it having been

rejected by the magistrate but not by the

judge. Complaint (as amended IV), Ap-

121

Petitioner filed exception to the ma-

gistrate's ruling upon which Judge Daly

pendix M, infra, was rejected by the court

of appeals in its last order. Appendix D,

infra. It is to be noted, however, that

the court of appeals long has been on no-

tice concerning the substance of Petition-

er's allegations. Crim v. Hunter, supra,

Appendix A, infra; see Appendix H, infra.

Construing Petitioner's in-

artful pleading liberally, as

Haines v. Kerner, 404 U.S. 519,

30 L.Ed.& 652, 92 S.Ct. 594, in-

structs the federal courts to do

in pro se actions, it states a

cause of action.

Boag v. MacDougall, 70 L.Ed.& 551 (1982).

Depriving Petitioner of access to literary

markets where Petitioner asserts an inter-

est in those markets, Complaint at @4, 15,

17-19, 20, 21-22, Appendix J, infra, is an

injury in fact. Ludlow Corporation v. Se-

curities and Exchange Com'n., 604 F.2 704,

706-707 (CADC, 1979). And as already no-

never ruled; however, recently, the clerk

returned the proffered amended complaint.

RBC, 20 Dec. 1983.

ted, use of "any other person" within the

Hornblower's Provision includes "any his-

torian” and thus places Petitioner square-

ly within the zone protected by the sta-

tute. Petition, supra at 51. Interdic-

tion of Petitioner's career certainly is

the kind of injury the Fifth Amendment was

- designed to protect against, accord Schware

v. Board of Bar Examiners, State of New

Mexico, 353 U.S. 232 (1957); Meyer v.

State of Nebraska, 262 U.S. 390 (1923);

furthermore, Petitioner's injury is all

the more severe for touching First Amend-

ment rights as well. Perry v. Sindermann,

408 U.S. 593 (1972). The court of appeals’

focusing on the question of nexus seems to

this Petitioner to be shaving the law very

fine to hola that the original complaint

Pleads a speculative rather than a direct

injury. Petitioner alleged a right to

have his accusations tested for truthful-

ness by the grand jury. Complaint at 120,

Appendix J, infra. Almost all of the per-

sons against whom Petitioner chooses to

level charges are public officials or pub-

lic figures, and given the position taken

Sullivan, 376 U.S. 254 (1964), and its

progeny, a good case can be made that Pe-

titioner benefits directly from being al-

lowed to "put his money where his mouth

is." Thus, under the proffered amended

complaints, Petitioner does have requisite

standing and a cause of action under the

First and Fifth Amendments. vis v. Pass-

man, supra, 442 U.S. at 234-244.

In any event, 28 U.S.C. §1653, 62

Stat. 944, allows amendment of pleadings

upon terms in the appellate courts to cor-

rect defective allegations of jurisdiction.

Petitioner anticipates that, after reading

122

The Second Circuit, sitting in diver-

sity and applying California's law "as

would the California Supreme Court” held

in accord with Petitioner in Reeves v.

American Broadcasting Companies, supra.

this little document, at least some mem-

bers of this Court may have trouble recon-

ciling Petitioner's pro se status with the

status asserted by a marginally literate

inmate of the Arizona Department of Cor-

rections, see Boag v. MacDougall, supra;

nowever, neither Boag nor Haines v. Kerner

cited in support establish any kind of

“sliding scale” against which non-certi-

fied pleaders are to be measured. Either

one is admitted to practice or not; no

other valid test of a man's legal know-

ledge currently is cognizable before the

courts. Petitioner agrees that there is

something to be said for requiring those

who bring serious charges to demonstrate

some legal knowledge or otherwise show

that they are not cranks; however, as this

Court previously has observed:

: Some ge omy know more about some

aspects of the law than do some lawyers;

but, no one to date has suggested seri-

ously the qualifying of lawyers by train-

ing them to be paralens is.

We cannot construe * * * any

other one of the Federal Rules

as compelling courts to summari-

ly dismiss, without any answer

or argument at all, cases like

this where grave charges of fraud

are shown by the record to be

based on reasonable beliefs eo

ing out of careful investigation.

The basic purpose of the Federal

Rules is to administer justice

through fair trials, not through

summary dismissals as necessary

as they may be on occasion.

These rules were designed in

large part to get away from some

of the old procedural booby traps

which common-law pleaders could

set to prevent unsophisticated

litigants from ever having their

day in court. If rules o ro-

cedure work as they should in an

honest and fair judicial system,

they not only permit, but should

as nearly as possible guarantee

that bona fide complaints be car-

ried to an adjudication on the

merits. * * * The serious fraud

charged here, which of course

has not been proven, is clearly

in that class of deceitful con-

duct which the federal securi-

ties laws were largely passed to

prohibit and protect against.

* * * The dismissal of this case

was error.

Surowitz v. Hilton Hotels Corporation, 383

U.S. 363, 373-374 (1966). It now has been

more than five years since the first com-

plaint, Crim v. Bell et al., supra, was

filed and as yet no defendant has even

been compelled to admit or deny the wrong-

doings charged. All should be. Petition-

124

er's complaint is not res judicata, nor

131

is it moot. This Court being able to

1324

Estevez v. Nabers, 219 F.a@ 321, 323

(CA5, 1955); State v. California Packin

Corp., 105 Utah 191, 1 ° ;

nited States v. Glidden Co., 119 F.a 235

(CAG, 1941); Restatement of Judgments §50,

comment (c)(1942); see The Evergreens v.

Nunan, 141 F.a 927 (CA2, 19 » cert.den.

323 U.S. 720. Petitioner's effort to a-

mend so as to include the current United

States Attorney as party defendant, Com-

plaint (as amended III); Complaint (as a-

mended IV), Appendix M, infra, would vi-

tiate res judicata on all claims asserted

as to him. United States v. Luros, 243

F.Supp. 160, 168-169 ns D, Sewn, 1965),

cert.den. 382 U.S. 956.

131

Since special federal grand juries al-

so can issue reports, 18 U.S.C. 83333, and

since the matter under consideration cul-

minated in a felony murder, see United

States v. Soliah, supra, expiration of the

five-year period oe crimes asserted

to have been committed against Miss Hearst,

see 18 U.S.C. §3281, 62 Stat. 827, could

not affect the instant action whatsoever,

especially since under the law of the in-

stant action, any action by the grand jury

is incidental and irrelevant. Linda R.S.

v. Richard D., supra, 410 U.S. at 619.

exercise appellate jurisdiction upon this

cause, 28 U.S.C. §1254(1); U.S. Const.,

Art. III, §2, cl. 2, at minimum it should

grant certiorari, declare to Petitioner

exactly what it wants, and allow the

complaint to be amended to its satisfac-

tion. Warth v. Seldin, supra, 422 U.S. at

501-502. Certainly, it ought to make suf-

ficient inquiry to assure itself whether

it or the courts below it, in deciding the

case of Miss Hearst, were targets or vic-

tims of a fraud destructive to the inte-

grity of the criminal-justice system. The

tripartite system of government estabdlish-

ed under the Constitution placed the purse

in the hands of the Legislature, the sword

132

Merrill Lynch, Pierce, Fenner & Smith

v. Curran, supra, 456 U.S. at 356; Simpson

v. United States, 435 ae * 9 (19% ;

United States v. Chavez, 416 U.S. 562,

-569 (1 )} Prince v. United States,

352 U.S. 322, 324-325 (1957).

133

Ballou v. General Electric Co, 393 F.a

398 (CA1, 1968); see Nagler v. Admiral

Corp., 248 F.m 319, 3 A2, 1957).

in the hands of the Executive, and re-

served to the Judiciary the power solely

of its moral sanction. That sanction is

not going to be worth all that much if

this or any court allows its justice to

satisfy not even the appearance of jus-

tice. Cf. Marshall v. Jerrico, Inc., su-

141

pra, 446 U.S. at 242-243.

G. Conclusion.

Petitioner believes he has stated

134

Cannon v. University of Chicago, supra,

peice! at 745n.15 (powell, ase aissen .

ing); Baker v. Carr, supra, 369 U.S. at

269 (Frankfurter, J., Heesnting): Hamil-

ton, The Federalist, No. 78; see also Uni-

ted States v. Calandra, supra, 414 U.S. at

(Brennan with Douglas and Marshall,

JJ., dissenting); Terry v. Ohio, 392 U.S.

141

. See e.g. Sweat v. State, 90 Ga. 315,

17 S.E, 273 (1893); Tipton v. State, 23

Ok1.Crim. 86, 212 P.-812 ( 1523); United

States v. Ingalls et al., 73 F.Supp.

(S.D.cal., 1947); cf. United States v.

Hearst, supra; see also United States v.

shackney, 333 F.a 475, 486 (CA2, 1965);

nited States v. M'Clellan, 127 F. 971

(S.D.Ga., 1904); Peonage Cases, 123 F.

671, 682-683 (M.D.Ala., 1903).

more than adequate grounds to justify this

Court's granting of the requested writ.

He apologizes for the length of this peti-

tion, for he knows the time of the Court

is scarce and needs to be economized; how-

ever, the questions presented are most se-

rious, not just to Petitioner in his per-

son but as general propositions of law.

First and Fifth Amendment rights, or the

access of private persons to or official

control of federal inne juries, are mat-

ters which concern large numbers of citi-

zens and non-citizens alike subject to the

jurisdiction and sovereignty of these Uni-

ted States. For all of the above-men-

tioned reasons, Petitioner.respectfully

submits that the writ should be granted.

Cf. Boag v. MacDougall, supra, 70 L.Ed.%

at 554-555 (O'Conner, J., concurring;

Rehnquist, J., with Burger, C.J., and

White, J., dissenting); see Hagans v. La-

vine, 415 U.S. 528, 533 (1974).

Respectfully submitted this &h day

of August, 1983,

Bel

Robert Brian crim, pro se,

32. Pierce Lane,

Naugatuck, Tt., 06770.

Tel. (203) 729-6119.

Proof of Service

State of Connecticut:

County of New Haven . -

I, Robert Brian Crim, Petitioner in

the above-entitled action, having been du-

ly sworn according to law, do depose that

I am the Petitioner in the above-entitled

action, and that I caused to be served up-

on Barry K. Stevens and the Solicitor Ge-

neral of the United States of America 3

copies apiece of the above printed brief

and appendices thereto by mailing same to

them in a first-class-postage-prepaid wrap-

per, one addressed to:

AUSA Barry K. Stevens,

United States Attorney's Offc.,

915 Lafayette Blvd.,

Bridgeport, Ct., 06604.

ano the other addressed to:

Solicitor General of the

United States,

Department of Justice,

Washington, D.C., 20530.

which mailings were effected on the th

day of January, 1984.

I did prepare and have read the fore-

going affidavit and swear tat it is true

ana correct to t.e best of my knowledge,

information, and belief. I understand

that a false statement made by me in the

above affidavit could subject me to penal-

ties for perjury.

Respectfully submitted this th

day of January, 198,

Robert Brian Crim, pro se,

32 Pierce Lane,

Naugatuck, Ct’, 06770.

Tel. (203) 729-6119.

Sworn to and subscribed

before me tnis th day

of January, 1984.

Clerk

United States District Court,

District of Connecticut.

APPENDIX

Appendix A:

Opinion and Order

of the

United States Court of Appeals

for the

Second Circuit.

A-2

;

UNITFD STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals, in and tor the Second

Circuit, held at the United States Court

House, in the City of New York, on the 17th

day of Decer er, one thousand nine hundred

and eighty-two.

Present: Hon. Ellsworth A. Van Graafeil-

and,

Hon. James L. Oakes,

Hon. Tnomas J. Meskill,

Circuit Judges.

Robert Brian Crim, )

Appellant,

v. 81-6177

G. William Hunter, United States

Attorney for the Northern

District of California, )

)

Appellee.

OR DER

A-3

This is an appeal from a judgment en-

tered on March 31, 1981 by the United

States District Court for the District of

Connecticut, T.F. Gilroy Daly, Judge, dis-

missing this complaint sua sponte on the

grounds that the court was without subdject

matter jurisdiction inasmuch as the plain-

tiff lacked standing. On July 2, 1981,

that court further denied Crim's motion

for vacation of judgment, leave to amend

complaint, and new trial.

Appellant Crim, a private citizen,

sought to compel Appellee Hunter, a United

States Attorney, to submit Crim's material

to a Special Grand Jury convened under

Chapter 216 of the United States Code of

Criminal Procedure. He asserted an im-

plied private cause of action under 18

U.S.C. §3332(a), which describes the pow-

ers and duties of such grand juries.

A private person who is neither pro-

secuted nor threatened with prosecution

A-4

has no standing to contest policy deci-

sions of the United States Attorney, Linda

B.S. ¥. Richard D., 410 U.S. 614, 619

(1973), nor does 18 U.S.C. §3332(a) create

standing. A directive that the United

States Attorney receive, make a recommen-

dation, and if requested forward informa-

tion from any person to a special grand

jury does not create a private right of

action in the absence of congressional in-

tent. Universities Research Ass'n., Inc.,

v. Coutu, 450 U.S. 754, 770 (1981); see

also Touche Ross & Co. v. Redington, 442

U.S. 560, 575-76 (1979); Cort v. Ash, 422

U.S. 66, 78 (1975).

Crim's complaint also sought declara-

tory and compensatory relief; he alleges

“loss of marketability” of papers that he

might publish in the future showing that

Patricia Hearst was deprived of her con-

stitutional right to a fair trial, anda

connection with the Iranian hostage crisis.

A-5

Publication, he states, may subject him to

liability for libel; Crim wishes to filter

nis materials through the Grand Jury on

the theory that he can thereby avoid a fu-

ture libel action. Reply Brief at 15-17.

Crim fails to show now the remedy he

seeks could prevent the speculative and

remote injury he claims, Linda R.S. v. Ri-

chard D., 410 U.S. 614, 618 (1973). The

jurisdiction of this court extends only to

cases and controversies. U.S. Constitu-

tion Art. III. Even when a statute ex-

pressly or impliedly creates a private

cause of action -- whicn is not the case

nere -- a plaintiff must allege injury in

fact to an interest within the zone of

interests protected by the statute deemed

violated by executive conduct. Warth v.

Seldin, 422 U.S. 490 (1975); Linda R.S. v.

Richard D., supra; Association of Data

Processing Service Organizations, Inc., v.

Camp, 397 U.S. 150 (1970). We take note

A-6

that Crim has previously had an opportuni-

ty to present nis claim of a judicially

cognizable injury. See Crim v. Bell, No.

78-2132 (2d Cir., Apr. 10, 1979), aftir-

ming district court's judgment that Crim

lacked standing in, inter alia, a mandamus

action to Hunter and Grand Jury to inquire

into Crim's materials. Where lack of

standing is predicated not only ona sta-

tutory analysis, but also upon the plain-

tiff-appellant's failure to plead a judi-

cially cognizable injury, the doctrine of

res judicata bars relitigation of the

claim.

The district court correctly dis-

missed Crim's complaint for lack of juris-

diction and the judgment is hereby af-

firmed.

s/James L. Oakes

s/Ellsworth A. Van Graafeiland

s/Thomas J. Meskill,

Circuit Judges.

A-7

Appendix B:

Order of the

United States Court of Appeals

for the

Second Circuit.

A-8

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court

House, in the City of New York, on the 8

day of March, one thousand nine hundred

and eighty-three.

Present:

Hon. James L. Oakes,

Hon. Ellsworth A. Van Graafeiland,

Hon. Thomas J. Meskill,

Circuit Judges.

Robert Brian “Crim,

Appellant,

Vv. 81-6177

G. William Hunter, United States

Attorney for the Northern District

of California,

Appellee.

ORDER

Appellant, pro se, has moved for leave

to file a motion for rehearing out of time

which is nereby granted. He has also pe-

titioned for renearing with a suggestion

that the rehearing be heard en banc, and

A-9

this petition is hereby denied witnout

prejudice to the application that the pe-

tition be heard en banc. He has also ap-

plied for leave to file a supplemental me-

morandum and that application is hereby

granted.

(s) James L. Oakes,

(s) E.A. Van Graafeiland,

(s) Thomas J. Meskill,

Circuit Judges.

A-10

Appendix C;

Order of the

United States Court of Appeals

for the

Second Circuit,

27 January 1982.

A-11

UNITED STATES COURT OF APPEALS

for the

SECOND CIRCUIT

Robert Brian Crim

81-6177

v«

G. William Hunter, U.S. Attorney.

IT IS HEREBY ORDERED that the motion

for vacation of judgment; leave to amend

complaint; and new trial, be and it hereby

is denied.

s/Thomas J. Meskill, U.S.C.Jd.

s/Richard J. Cardamone, U.S.C.J.

1/27/82 s/James S. Holden, U.S.D.J.*

* Sitting by designation.

A-12

United States Sourt of Appeals

for the

Second Circuit.

A-13

UNITED STATES COURT OF APPEALS

for the

SECOND CIRCUIT

Robert Brian Crim,

Plaintiff-Appellant,

v. No. 81-6177

G. William Hunter, United

States Attorney,

\Defendant-Appellee. |

a a

IT IS HEREBY ORDERED that the motion

to recall mandate, vacate judgment, allow

amendment of pleadings, and grant new trial

thereon be and it hereby is denied.

s/James L. Oakes,

s/Ellsworth A. Van Graafeiland,

May 19, s/Thomas J. Meskill,

1983. Circuit Judges.

A-14

Appendix E:

a ; ‘

Upinion and Order

of the

United c+ > :

) ’ 1 St: ms ~ M

ates District Court

for the

District

rict of Connecticut.

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

ROBERT BRIAN CRIM,

Plaintiff,

-vs- Civil No. N 81-150

G. WILLIAM HUNTER,

United States Attorney

for the Northern Dis-

trict of California,

Defendant.

Plaintiff, "an nistorian", requested

of the defendant that he present to a fe-

deral grand jury evidence in nis posses-

sion which he believes tends to prove that

a number of criminal offenses were commit-

ted against the United States between Au-

gust 21, 1973 and February 1, 1979. Hav-

ing never received a reply from the defen-

dant to his letter of February 13, 1981

the plaintiff claims that the defendant

has failed to discharge his duty pursuant

to 18 U.S.C. § 3332(a) thereby denying

A-16

plaintiff his right to have his allega-

tions tested for their veracity and has

materially damaged the plaintiff by impe-

ding the marketability of his manuscript

which addresses the criminal activity he

seeks to have investigated.

“Whatever merit there may be to

plaintiff's [underlying] claims he has al-

leged nothing that entitles him to bring

his suit in a federal court." Sohlberg v.

Castor, Dkt. No. B-74-469 (D.Conn., Jan.

14, 1975)(Newman, J.). Title 18 U.S.C.

§1332(a) confers no private right of ac-

tion to seek the relief requested.

Accordingly, the complaint is dis-

missed, sua sponte, for lack of jurisdic-

tion.

Dated at Bridgeport, Connecticut,

this 3ist day of March 1981.

(s) Thurnby Daly

T.F. Gilroy Daly

United States District

Judge.

A-18

Upon Petitioner's motion made before

the United States District Court for the

District of Connecticut and seeking vaca-

tion of judgment, leave to amend plead-

ings, and new trial, the Hon. T.F. Gilroy

Daly atfixed the following endorsement:

July 2, 1981--DENIED. Plaintiff's

amended complaint does not cure the ju-

risdictional defects found by this court

in its ruling of March 31, 1981 nor those

noted by the Government in its response

filed May 15, 1981. See also Crim v.

Griffin Bell et al, No. N-78-135 (D.Conn.

1978)(Newman, J.).

(s) Thurnby Daly

T.F. Gilroy Daly,

U.S. District Judge.

A-19

Judgment and Mandate

A-20

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court-

house, in the City of New York, on the

twenty-third day of March, one thousand

mine hundred and eighty-three.

ROBERT BRIAN CRIM,

Appellant,

v. No. 81-6177

G. WILLIAM HUNTER, UNITED

STATES ATTORNEY for the

NORTHERN DISTRICT OF CAL-

IFOPNIA,

Appellee.

ee ee

A petition for rehearing containing a

suggestion that the action be reheard in

bane having been filed herein by appel-

lant, Robert Brian Crim, pro se, and the

panel that neard the appeal naving denied

said petition in an order filed on March

8, 1983,

It is further noted that the sugges-

tion for rehearing in bane has been trans-

mittea to the judges of the court in regu-

lar active service and to any other judge

on the panel that heard the appeal and

that no such judge has requested that a

vote be taken thereon.

A. Daniel Fusaro, Clerk

s/Francis X. Gindhart,

Chief Deputy Clerk

A-23

B. Appellee Has Not Shown That

Appellant Lacks Standing

for Failing to Establish a

Nexus Between Injury Al-

leged and Relief Sought.

Plaintiff alleged loss of marketabi-

lity in his works the result of Defendant's

apparent failure to present Plaintiff and

Plaintiff's investigation to the special

federal grand jury. The trial court cor-

rectly found this to be an “injury in

fact." Ludlow Corporation v. Securities

and Fxchange Com'n., 604 F.m 704 (CADC,

1979). Appellee's objections, see Brief

of Appellee at 9, are totally sans merit.

Allegation of loss of marketability

was rooted in the law of libel. Plaintiff

alleged tnat Patricia Hearst was not guil-

ty of the crimes for which she was charged

and convicted and also alleged that the

conviction appeared fraudulent. Finally,

Plaintiff alleged that no insanity was

A-24

present to account for Miss Hearst's be-

havior; thus, someone, somewhere had to be

guilty.

Patricia Hearst's innocence may be

argued as a matter of law rather than sym-

pathy by “closing the door” upon the pos-

sibility of her escaping her abductors.

Cf. United States v. Chapman, 455 F.a 746

(CA5, 1972), with State v. Kearns, 27 N.C.

App. 354, 219 S.E.a 228 (1975), cert.den.

289 N.C. 300, 222 S.E.% 700. On the ques-

tion of “brainwashing,” that is not a de-

fense per se but may be invoked to explain

why an individual at a certain time inter-

preted the data of reality in a certain

way. It being a legal principal that one

who reasonably perceives his life to be in

danger may act upon appearances, it be-

comes necessary to show only that Miss

Hearst was fearful both of the SLA and

the USA, and that her fear of each was

“reasonable” within the context of her

A-25

abilities to perceive reality. Toward

this end, marshaling of all the extra-ju-

dicial remarks made by such as Atty. Gen.

William Saxbe certainly is material. But,

to say that William Saxbe incited a kid-

napping victim to commit criminal acts is

to say that William Saxbe, ‘not Patricia

Hearst, is the criminal. Such is a libe-

lous statement, unless true.

Attorneys General and other such of-

ficials come under the rule set down in

New York Times Co. v. Sullivan, 376 U.S.

254, 84 S.Ct. 710 (1

64), and must prove

"actual malice" to effect recovery under

the law of libel. Plaintiff's circun-

stances are similar to a degree to the

circumstances attending Curtis Publishing

Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975

(1967), reh.den. 88 S.Ct. 11, 13. The de-

gree of similarity at this point depends

upon how credible a jury finds Plaintiff.

However, fortuitious circumstances allow

A-26

Plaintiff to pass between the horns of his

dilemma by writing, at least to a degree,

aoout himself (a tactic not uncommon among

those who wrote books about the Hearst

case). Plaintiff, the witness, is privi-

leged to say what ne tninks to the grand

jury and to answer truthfully any question

which it might care to ask him. Marsh v.

Virginia, 265 F.Supp. 614 (W.D.Va., 1967).

Plaintiff, the reporter, is privileged to

report fairly judicial proceedings. Crai

Vv. Harney, 331 U.S. 367, 374 (1947). What

nappens atter that really is not Plain-

tiff's problem. If the President chooses

publicly not to prosecute, then so what?

If the grand jury chooses not to present,

then so what? If the United States Attor-

ney chooses not to recommend, then so

what? Plaintiff fails to see Defendant's

point.

Plaintiff does acknowledge that the

original and first amended pleadings in

the district court fail properly to plead

urisdictional racts on this portion of

the complaint, since the case here arises

not solely under the Hornblower's Provi-

sion but also directly under the First

and Fifth Amendments. The amenaed com-

plaint currently before the district court

corrects this. Plaintiff seeks a continu-

ance upon the instant appeal to unify the

two causes of action and to obtain a fin-

ding of fact from the trial court whether

the instant case comes within the Curtis

precedent. In the event the trial court

rejects Curtis applicability, then such

will sharpen the alternative pleading of

implied cause of action, since the Defen-

dant will have no rational basis for de-

clining to present to the special federal

grand jury.

United States Court of Appeals

At a stated term of the United States

Court of Appeals for the Second Circuit,

held at the Urited States Courthouse in

the City of New York, on the 10tn day of

April one thousand nine hundred and seven-

ty-nine.

Present: Hon. William H. Mulligan

Hon. Ellsworth A. Van Graafei-

land

Hon Lloyd F. MacManon*

ROBERT BRIAN CRIM,

Appellant,

-V- 78-21 32

GRIFFIN BELL, Attorney General

of the United States, G.

WILLIAM HUNTER, United

ee eee ee

States Attorney for the

California; and the FE-

DERAL GRAND JURY Sitting

ee ee ee

Appeal from the United States District

This cause came to be heard on the

transcript of record from the United States

District Court for the District of Connec-

ticut, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that

the judgment of said District Court is af-

firmed. The appellant lacks standing to

pursue this action. Accordingly, the

cause was properly dismissed for lack of

subject matter jurisdiction.

s/William H. Mulligan

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Appendix

A-33

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

(

(Mar 19 2:08

(PM '81 U.S.

(District

ROBERT BRIAN CRIM,

an individual,

Plaintiff, (Court New

(Haven, Conn

VT. (

G. WILLIAM HUNTER, Case No.

United States Attorney N81-150

for the Northern Dis- COMPLAINT

trict of California,

Defendant.

~ ™ ee e e

Plaintiff respectfully alleges that:

1. Plaintiff currently resides at 32

Pierce Lane, the Borough of Nauga-

tuck, District of Connecticut;

2. Defendant has his principal place

of business located at 450 Golden

Gate Avenue, the City of San Fran-

cisco, Northern District of Cali-

fornia;

A-34

The instant action arising from what

Plaintiff alleges to be a violation

of the provisions of Title 18, Uni-

ted States Tode, §3332(a), this Court

has jurisdiction per the provisions

of Title 28, United States Code, §§

1331(a), 1343(4), 1361, 1391(e), and

2201. The Defendant is an officer of

the United States of America acting

in his official capacity and an em-

ployee of one of its agencies, the

Department of Justice; the amount in

controversy is in excess of the jur-

isdictional bar, exclusive of inter-

est and costs; no real property is

involved in the instant action.

Plaintiff is an nistorian who cur-

rently is preparing four manuscripts

concerning the kidnappings of Patri-

cia Campbell Hearst, aka Patricia

Hearst Shaw, and the Iranian Hostage

Crisis, which manuscripts are struc-

tured about the general theme of the

—— G4 ~—* «

manuscripts noted in paragraph 4 of

tiff did conduct certain research

and investigation of the trial of

Patricia Hearst, United States v.

rst, Cr. 74-364 OJC/WHO (N.D.Cal.,

ae 3 |

1976) (see e.g. 563 F.2d 1331; 412

In the course of conducting the re-

searecn and investigation noted in

paragraph 5 of the instant complaint,

Supra, Plaintiff did develop certain

evidence which Plaintiff believes

prooves that several as yet unindic-

ted felonies against the United States

were committed by a number of parties

between the time of 21 August 1973

‘ - = g 2

The general Statute of Limitations

for non-capital offenses is five

years; the Statute of Limitations for

offenses extends inde?‘

tiff did convey to the following per-

sons by registered mail pursuant to

the requirements set forth in Title

50, United States Code, §401 et seq.

information relating to certain of

the alleged offenses noted in para-

graph 6 of the instant complaint,

Supra:

Atty. George Kelly, Jr.,

United States Attorney's Orfc.,

450 Main Street,

Hartford, Connecticut.

A=37

Mr. Michael Shaver,

Records Management Div.,

FBI Headquarters,

orn at E streets,

Washington, District of

Columbia.

tty. George Martinez,

‘kn Floor, Chocolate Bldg.,

900 Northpoint,

san Francisco, California.

Atty. Kelly is an Assistant United

States Attorney for the District of

Connecticut; Mr. Shaver is a clerk

employed by the Federal Bureau of

Investigation; Atty. Martinez is

counsel for Patricia Hearst Shaw on

information and belief. See Exhibit

1 attached hereto (registered mail

receipts and return certificates) ;

On or about 13 February 1981, Plain-

tiff did make formal request of De-

fendant to present to a special fe-

deral grand jury the evidence hereto-

fore described, paragraph 6 of the

instant complaint, supra, which

10.

request was made pursuant to the pro-

visions of Title 18, United States

nad been entrusted, paragraph 8 of

4 a | ;

the instant como

mpla

“”

te)

13 February 1981; certified mail re-

celpt; return certificate

iff retains certain of the eviden-

tiary exhibits in his physical cus-

tody;

Defendant is an attorney employed by

the United States and its agent, the

Department of Justice, and is entrus-

ted with the responsibility of prose-

cution of offenses committed against

the United States within the meaning

of Title 18, United States Code, §

3332(a);

the Federal Bureau of Investigation

plaint, supra; see Exhibit 3 attached

+ = fF on 4 s + ‘eo

nereto, Rodert B. Crim, letter to c.

5 4 .s +> iT 4n Re >

Willlam Hunter, 03 March 1981, certi-

+ +> + +

fied mail receipt, return certifi-

cate), said service is equivalent to

service upon Defendant per the rules

f law applicable to the Ninth ana

ted States v. Butler, 56

S91 (CAS, 1978); United States Vv.

Bryant, 439 F.m 642, 650 (CADC, 1971);

see Barbee v. Warden, Maryland Peni-

tentiary, 331 Fa 842, B46 (CA4,

1965); United States v. Consolidated

Laundries Corp. et al., 291 F.m 563,

570 (CA2, 1961);

Tne provisions of Title 18, United

States Code, §3332(a) grant unto

Plaintiff a “eivil ri nt" within the

meaning of Title 28, Uni+ea States

code, §1343(4); saia provisions like-

wise impose upon Defendant a minis-

terial duty, Title 16, United States

zode, §3332(a) encompassing in part

@ positive command which is free from

doubt;

tain of the alleged offenses were ac-

tion to be delayed beyond midnight

(0000 hours), 20 March 1581; ana

Plaintiff made Clear that, because of

A-41

wnat ne perceived to be the pending

lapse in the Statute of Limitations,

Plaintiff would consider all adminis-

trative remedies exhausted if Plain-

tiff received no positive response

from Defendant by mail call of 1

Mareh 1961. See Exhibit 3 attached

hereto and previously described.

14, o the best of Plaintiff's informa-

tion, knowledge, and belief, Defen-

dant has not complied witn Plaintiff's

formal request of 13 February 1981,

Exhibit 2 attached hereto, as of the

stated deadline, Fxhibit 3 attached

hereto; wherefore Defendant has not

discharged the ministerial duty re-

quired of him by the provisions of

Title 18, United States Code, §

3332(a), and all administrative reme-

dies are exhausted.

15. Publication imputing to another a

16.

17.

Criminal offense subjects the defamer

to liability, even in the absence of

proof of special harm, particularly

where the crime involved involves mo-

ral turpitude or has attached to it

an infamous penalty; nowever, truth

almost universally is a defense to

accusations of libel;

Plaintiff, after exhaustive research

of the Hearst case, has determined to

Plaintiff's satisfaction that there

was no legally recognizable insanity

attendant to Patricia Hearst Shaw's

mental condition during the time she

was a captive of or a convert to the

Symbionese Liberation Army;

Plaintiff, after exhaustive research

of the Hearst case, has determined to

Plaintiff's satisfaction that, as a

matter of law, criminal responsibili-

ty must attach to each and every one

A-43

of the several acts allegedly commit-

ted by the Symbionese Liberation Ar-

my in violation of Federal and State

statutes; and Plaintiff, arter ex-

haustive research of the Hearst case,

has not determined beyond a reasona-

ble doubt that said responsibility

properly attaches to Patricia Hearst

Shaw; nor has Plaintiff, after ex-

haustive research of the Hearst case,

been satisfactorily impressed with

the “fairness” of the trial which Pa-

tricia Hearst Shaw received in San

Francisco, California, in 1976;

Plaintiff, after exhaustive research

of the Hearst case, has determined to

Plaintiff's satisfaction that a de-

finite connection can be drawn be-

tween several of the acts noted in

paragraph 6 of the instant complaint,

Supra, and some of the consequences

noted in paragraph 17 of the instant

19.

complaint, supra, which connection

Plaintiff wishes to state explicitly

in Plaintiff's four manuscripts, pa-

ragraph 4 of the instant complaint,

Supra. Plaintiff asserts that ex-

plicit statement of said connections

is an essential ingredient of the ar-

tistic integrity of Plaintiff's

works, since in the absence of a fin-

ding that Patricia Hearst Shaw was

unlawfully deprived of her Ponatites

tional right to a fair trial, the

historical connection between her

circumstances and the Iran Crisis

dissipates.

To say that someone unlawfully de-

prived another of that others Consti-

tutional right to a fair trial is té

charge the alleged violator(s) with

a crime involving moral turpitude

and to which is attached an infamous

penalty; and to publish such an

20.

21.

to liability unless the al legation

is true;

By his refusal to present Plaintiff

and Plaintiff's investigation and

evidence to the proper special feder-

ai grand jury, as is required by Ti-

tle 18, United States Code, §3332(a),

Deferdant has deprived Plaintiff of

Plaintiff's right to have Plaintiff's

allegations tested for truthfulness;

By his refusal to present Plaintiff

and Plaintiff's investigation and

evicence to the proper special feder-

grand jury, as is required by Ti-

tle 18, United States Code, §3332(a),

Defendant has deprived Plaintiff's

works of an element of their market-

ability, since in the absence of a

certification of truthfulness, any

responsible publisher must as a mat-

A-46

ter of law be hesitant to contract

Plaintiff's works;

22. By nis refusal to present Plaintiff

and Plaintiff's investigation and

evidence to the proper special feder-

al grand jury, as is required by Ti-

tle 18, United States Code, §3332(a),

Defendant has altered the conclusion

of Plaintiff's fourth manuscript in

a material way, which alteration

Plaintiff asserts has deprived Flain-

tiff's entire work of its immortality;

and if Defendant is not mandamused to

perform the ministerial act required

by Title 18, United States Code, §

3332(a), and requested of him by the

Plaintiff, Plaintiff will suffer im-

mediate and irreparable injury, for

which damages at law are inadequate.

23. Plaintiff is entitled to the follow-

ing declaratory relief: "Title 18,

A-47

United States Code, §3332(a) confers

by statute upon investigators and

witnesses (private or otherwise) the

Civil right to have information de-

veloped by them presented to a spe-

Clal federal grand jury upon proper

request; and when an attorney for the

Government requested to make such

presentation to a special federal

grand jury fails to honor such re-

quest, mandamus will issue to compel

him to do so, and he may be held lia-

ble for any damages or injury his

initial refusal to present might

Cause." Such declaratory relief is

proper and necessary, since the ori-

ginal reason for the passage of Title

18, United States Code, §3332(a) was

to enable private citizens to spur

federal prosecutors to conduct prompt

investigation of complaints relating

to organized crime. Persons who find

24.

A-48

it necessary to seek mandamus of a

grand-jury investigation into orga-

nized crime place the clear and pre-

sent danger of dying before the com-

plaint is answered.

Plaintiff is entitled to the follow-

ing declaratory relief: "Witnesses

to and investigators of crimes a-

gainst the commonweal are ‘public in-

tervenors' representing ‘public val-

ues', not ‘private values’, and such

intervenors are not ‘interlopers';

rather, they are to be granted such

standing at law as is necessary to

assure that the criminal laws of the

United States are enforced in an

equitable and responsible manner."

See Medical Committee for Human

Rights v. S.E.C., 432 F 24 659, 673-

674 (CADC, 1970), reh.den., vac. and

rem. for dismissal for reasons of

mootness, 404 U.S. 403 (1972); Office

Where

Court

Qn $ $ 4 ‘ Qn * |

of Communication of United Church of

christ v. F.C.C., 425 F.m 543, 546-

547 (CADC, 1969), reh. en bane den.,

fore Plaintiff prays this honorable

to:

Issue Writ of Mancamus to Lefendant

obliging him to present the evidence

grand jury sitting in the Northern

District of California;

Declare the rights and privileges

conferred by Title 18, United States

Code, $3332(a) per the configurations

of paragraph 23 of the instant com-

plaint, supra, along with the stan-

ding of witnesses and investigators

as "public intervenors" per the con-

figurations of paragraph 24 of the

instant complaint, supra;

termined at a later time, the Plain-

iff currently being unable to make

any estimate of damages (beyond the

threshhold jurisdictional amount) in

The absence of the special federal

Respectfully submitted this 19t day of

March, 1981,

ae, )

/ +) So.

Robert Brian Crim, pro se,

32 Pierce Lane,

Naugatuck, Ct., 06770.

A-51

Tnese exhibits, which Consist of letters

and postal documents, are not reproduced

here due to the limitations of the size

format; copies of these exnibits may be

found at pages A-35 to A-41 of the legal-

sized appendix originally submitted by Pe-

itioner to tne Court on 08 August 1983

and now lodged with the Clerk for refer-

ence.

A-53

Re Complaint (as amended);

This document is not reproduced here due

to its size and the expense of the repro-

duction. A copy of Complaint (as amended)

may be found at pages A-43 to A-53 of the

legal-sized appendix originally submitted

by Petitioner to the Court on 08 August

1983 and now lodged with the Clerk for re-

ference.

A=-55

Re Complaint (as amended ITI);

This document is not reproduced here due

to its size and the expense of the repro-

duction. 4 copy of Complaint (as amended

II) may be found at pages A-55 to A-65 of

the legal-sized appendix originally sub-

mitted by Petitioner to the Court on 08

August 1983 and now lodged with the Clerk

Complaint

(as amended IV).

Re Complaint (as amended IV);

This document is not reproduced here due

to its size and the expense of the repro-

duction. A copy of Complaint (as amended

IV) may be found at pages A-67 to A-82 of

the legal-sized appendix originally sub-

mitted by Petitioner to the Court on 08

August 1983 and now lodged with the Clerk

for reference.

A-58

—~

A-59

Title 28, United States Code §1331

(as amended), 90 Stat. 2721, 94 Stat.

2369, says:

Tne district courts shall have

original jurisdiction of all ci-

vil actions arising under the

Constitution, laws, or treaties

of the United States.

Title 28, United States Code §1343

(a)(4) (as amended), 93 Stat. 1284, says:

Tne district courts shall have

original jurisdiction of any ci-

vil action authorized by law to

be commenced by any person: * * *

To recover damages or to se-

cure equitable or other relief

under any Act of Congress provi-

ding for the protection of civil

rights, including the right to

vote.

Title 28, United States Code §1361,

76 Stat. 744, says:

The district courts shall have

original jurisdiction of any ac-

tion in the nature of mandamus to

compel an officer or employee of

the United States or any agency

thereof to perform a duty owed to

the plaintiff.

A-60

Title 28, United States ‘ode §1391(e),

90 Stat. 2721, says:

A civil action in which a de-

fendant is an officer or employ-

ee of the United States or any

agency thereof acting in his of-

ficial capacity or under color

of legal authority, or an agency

of the United States, or the

United States, may, except as

otherwise provided by law, be

Drought in any judicial district

in wnich (1) a defendant in the

action resides, or (2) the cause

of action arose, or (3) any real

property involved in the action

is situated, or (4) the plain-

tiff resides if no real property

is involved in the action. Ad-

ditional persons may be joined

as parties to any such action in

accordance with the Federal Rules

of Civil Procedure and with such

other venue requirements as

would be applicable if the Uni-

ted States or one of its offi-

cers, employees, or agencies

were not a party.

The summons and complaint in

such an action shall be served

as provided by the Federal Rules

of Civil Procedure except that

the delivery of the summons and

Complaint to the officer or agen-

Cy as required by the rules may

be made by certified mail beyond

the territorial limits of the

district in which the action was

brought.

A-61

Title 28, United States Tode $2201,

62 Stat. 964, 63 Stat. 105, 68 Stat. 890,

72 Stat. 349, 90 Stat. 1719, 92 Stat.

2672, says:

In a case of actual contro-

versy within its jurisdiction,

except with respect to Federal

taxes other than actions brought

under section 7428 of the Inter-

nal Pevenue Code of 1954 or a

proceeding under section 505 or

1146 of title 11, any court of

the United States, upon the fi-

ling of an appropriate pleading,

may declare the rights and other

legal relations of any interes-

ted party seeking such declara-

tion, whether or not further re-

lief is or could be sought. Any

such declaration shall have the

force and effect of a final

judgment or decree and shall be

reviewable as such.

Title 18, United States Sode §3282,

62 Stat. 828, 68 Stat. 1145, 75 Stat. 648,

says:

Except as otherwise expressly

provided by law, no person shall

be prosecuted, tried, or punished

for any offense, not capital, un-

less the indictment is found or

the information is instituted

within five years next after such

offense shall have been committed.

A-62

Title 18, United States Code §3281,

62 Stat. 827, says:

An lidictment for any offense

punishable by death may be found

at any time without limitation

except for offenses barred by

the provisions of the law exis-

ting on August 4, 1939.

Title 18, United States Code §2, 62

Stat. 684, 65 Stat. 717, says:

(a) Whoever commits an of-

fense against the United States

or aids, abets, counsels, com-

mands, induces or procures its

commission, is punishable as a

principal.

(0) Whoever willfully cau-

ses an act to be done which if

directly performed by him or

another would be an offense a-

gainst the United States, is

punishable as a principal.

Title 18, United States Code §3, 62

Stat. 684, says in part:

Whoever, knowing that an of-

fense against the United States

has been committed, receives,

relieves, comforts or assists

the offender in order to hinder

or prevent his apprehension,

trial or punishment, is an ac-

cessory after the tact.

Wnoever, having knowledge of

the actual commission of a felo-

ny cognizable by a court of the

United States, conceals and does

not as soon as possible make

known the same to some judge or

other person in civil or milita-

ry authority under the United

States, shall be fined not more

than $500 or imprisoned not more

than three years, or both.

Title 18, United States Code §242,

62 Stat. 696, 82 Stat. 75, says in part:

Whoever, under color of any

law, statute, ordinance, regula-

tion, or custom, willfully sub-

jects any inhabitant of any State,

Territory, or District to the de-

privation of any rights, privi-

leges or immunities secured or

protected by the Constitution or

laws of the United States * * *

shall be fined not more than

$1,000 or imprisoned not more

than one year, or both; and if

death results shall be subject to

imprisonment for any term of

years or for life.

Title 18, United States Code §371,

62 Stat. 701, says in part:

A-64

If two or more persons con-

Spire either to commit any of-

fense against the United States,

or to defraud the United States,

or any agency thereof in any

manner or tor any purpose, and

one or more of such persons do

any act to effect the object of

the conspiracy, each shall be

fined not more than $10,000 or

imprisoned not more than five

years, or both.

Title 18, United States Code §401,

62 Stat. 701, says in part:

A court of the United States

shall have power to punish by

fine or imprisonment, at its

discretion, such contempt of its

authority, and none other, as --

(1) Misbehavior of any per-

son in its presence or so near

thereto as to obstruct the ad-

ministration of justice;

(2) Misbehavior of any of

its officers in their official

transactions; * #* *#

Title 18, United States Code §1001,

62 Stat. 749, says:

Wnoever, in any matter within

the jurisdiction of any depart-

ment or agency of the United

States knowingly and willfully

falsifies, conceals or covers up

any trick, scheme, or device a

A-65

material fact, or make any false,

fictitious or fraudulent state-

ments or representations, or

makes or uses any false writing

or document Knowing the same to

contain any false, fictitious or

fraudulent statement or entry,

shall be fined not more than

10,000 or imprisoned not more

than five years, or both.

Title 18, United States Code §1503,

62 Stat. 769, 96 Stat. 1253, says:

Whoever corruptly, or by

threats of force, or by any

threatening letter or communi-

cation, endeavors to influence,

intimidate, or impede any grand

or petit juror, or officer in

or of any court of the United

States, or officer wh may be

serving at any examination or

other proceeding before any Uni-

ted States commissioner or other

committing magistrate, in the

cGischarge of his duty, or injures

any such grand or petit juror in

his person or property on account

of any verdict or indictment as-

sented to by him, or on account

of his having been or being such

juror, or injures any such offi-

cer, commissioner, or other com-

mi+tting magistrate in his person

or property on account of the

performance of his official du-

ties, or corruptly or by threats

of force, or by any threatening

letter or communication, influ-

ences, obstructs, or impedes the

A-66

Gue administration o

shall be fined not

$5,000 or imprison

than five years,

eo a

«+

Whoever attempts to influence

the action or decision of any

grand or petit juror of any

court of the United States upon

any issue or matter pending be-

fore such juror, or before the

jury of which he is a member, or

pertaining to his duties, by

writing or sending to him any

written communication, in rela-

tion to such issue or matter,

shall be fined not more than

$1,000 or imprisoned not more

than six months, or both.

Title 18, United States Code §1583,

62 Stat. 772, says in part:

Whoever kidnaps or carries

away any otner person, with the

intent that such other person

be sold into involuntary servi-

tude, or held as a slave; * * #

Shall be fined not more than

$5,000 or imprisoned not more

than five years, or both.

Title 18, United States Code §1622,

A-67

62 Stat. 774, says

Whoever procures another to

commit any perjury is guilty o

sudornation of perjury, and

shall be fined not more than

$2,000 or imprisoned not more

than five years, or both.

Title 18, United States Code §2383,

62 Stat. 808, says:

Whoever incites, sets on foot,

assists, or engages in any rebel-

lion or insurrection against the

authority of the United States

or the laws thereof, or gives aid

or comfort thereto, shall be

fined not more than $10,000 or

imprisoned not more than ten

years, or both; and shall be in-

capable of holding any office un-

der the United States.

Title 18, United States Code §2113

(a,d,e), 62 Stat. 796, 64 Stat. 394, 66

Stat. 46, 73 Stat. 639, 84 Stat. 1017,

says in part:

Whoever, by force and vio-

lence, or by intimidation, takes

or attempts to take, from the

A-68

person or the presence of ano-

ther any property or money or

any other thing of value belong-

ing to, or in the care, custody,

control, management, or posses-

sion of, any bank, credit union,

or any savings and loan associa-

tion; * * #

Shall be fined not more than

$5,000 or imprisoned not more

than twenty years, or both.

Wnoever, in committing, or in

attempting to commit, any offense

defined in subsections (a) and

(>) of this section, assaults any

person by the use of a dangerous

weapon or device, shall be fined

not more than $10,000 or impri-

soned not more than twenty-five

years, or both.

Whoever, in committing any

offense defined in this section,

or in avoiding or attempting to

avoid apprehension for the com-

mission of such offense, or in

freeing himself or attempting to

free himself from arrest or con-

finement for such offense, kills

any person, or forces any person

to accompany him without the con-

sent of such person, shall be im-

prisoned not less than ten years,

or punished by death if the ver-

dict of the jury shall so direct.

Title 18, United States Code §1584,

62 Stat. 773, says in part:

Whoever knowingly and will-

fully nolds to involuntary ser-

vitude * * * any other person

A-69

for any term * * * shall be

fined not more than $5,000 or

imprisoned not more than five

years, or both.

Title 18, United States Code §2381,

62 Stat. 807, says:

Whoever, owing allegiance to

the United States, levies war

against them or adheres to their

enemies, giving them aid and

comfort within the United States

or elsewhere, is guilty of trea-

son and shall suffer death, or

shall be imprisoned not less

than five years and fined not

less than $10,000; and shail be

incapable of holding any office

under the United States.

It is to be noted that the capital

provision of the treason statute is worded

differently from the capital provisions of

the Federal Kidnapping Act, 18 U.S.C.

§1201 (repealed), and the National Bank

Robbery Act, 18 U.S.C. §2113(e), and

therefore does not suffer the same uncon-

stitutional defect. Cf. United States v.

A-70

Jackson, 390 U.S. 570 (1968); Pope v. Uni-

ted States, 392 U.S. 651 (1968). It also

is to be noted that 18 U.S.C. §1201 and 18

U.S.C. §2113(e) define “Capital” crimes

delimited under 18 U.S.C. §3281, the un-

Constitutionality of these provisions’

death penalties notwithstanding. See e.g.

Coon v. United States, 411 F.a 422 (Cas,

1969). “It is for Congress, not the

courts, to rewrite the definition of a ca-

pital offense." United States v. Narciso,

446 F.Supp. 252, 263n.4 (E.D.Mich., 1977).

It not being possible to obtain a judgment

against a statute, Shephard v. Wheeling, 4

S.E. 635 (W.Va., 1887); 39 Ops.Atty.Gen.

22 (1937), it follows that findings of un-

constitutionality in a statute's applica-

tion cannot void relations under the sta-

tute not Specifically addressed by the de-

cision of the court of review. See Chicot

County Drainage District ¥- Baxter State

Bank, 308 U.S. 371 (1940).

Appendix 0O:

A Sonnet

A-72

I fain would give to thee the loveliest

things,

For lovely things belong to thee of right,

And thou hast been as peaceful to my sight,

As the still thoughts that summer's twi-

light brings;

Beneath the shadow of thine angel's wings

O let me live! 0O let me rest in thee,

Growing to thee more and more utterly,

Upbearing and upborn, till outward things

Are only as they share in thee a part!

Look kindly on me, let thy holy eyes

Bless me from the deep fulness of thy

heart;

So shall. my soul in its right strength

arise,

And nevermore shall pine and shrink and

start,

Safe-sheltered in thy full-souled sympa-

thies.

--James Russell Lowell

IND OF DOCKET

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.