Petition for Writ of Certiorari — Moss v. United States, 122 S. Ct. 1081 (2002) (No. 01-1072)

Supreme

() oy cet US.

011072 pee 26 2°)

OFFICE OF THE CLERK

No.

| IN THE

Supreme Court of the United States

MARILYN M. MOSS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MARILYN M. MOSS

Petitioner pro se

11936 West 119 Street #208

Overland Park, KS 66213-2216

(913) 967-7050

a3 ¢

QUESTIONS PRESENTED

Whether or not “materiality” is an essential element of

bankruptcy fraud statute 18 U.S.C. Section 152(3).

Whether or not district court lacks subject matter

jurisdiction when the grand jury omitted the essvatial

element of “materiality” in the Indictment and whether

Petitioner’s trial counsel was ineffective for failing to

object.

Whether guilty plea based on insufficient indictment

lacking essential element is unconstitutional and

conviction should be vacated.

Whether imposing term of supervised release on

pretrial detainee who was never been “imprisoned” or

under jurisdiction of “Bureau of Prisons” violates

congressional intent.

~-

TABLE OF CONTENTS

Opinions below

Jurisdiction

Constitutional Provisions involved

Rules involved

Statement

Reasons for granting the petition

Conclusion

Appendix A

Appendix B

TABLE OF AUTHORITIES

Cases:

Community for Creative on-Violence v. Reid,

490 U.S. 730 (1989)

Estate of Falco, 188 Cal.App.3d 1004 (1987)

Ex Parte Swift, 275 Fed. Rptr. 57 (E.D.Mo. 1922)

In re Oriental Rug Warehouse Club, Inc.

205 B.R. 407 (8® Cir. 1997)

In re Buck, 166 B.R. 106 (Bkrtc.M.D.Tenn. 1993)

In re Schroff, 156 B.R. 250 (1993)

In re Shah, 169 B.R. 17 (Bkrtcy.E.D.N.Y. 1994)

Nationwide Mutual Insurance Co. v. Darden,

503 U.S. 318 (1992)

Neder v. United States, 527 U.S. 1 (1999)

Standard Oil Co. of N.J. v. United States,

221 U.S. 1 (1911)

United States v. Brown, 995 F.2d 1493 (10* Cir. 1993)

United States v. Cabrera-Teran, 168 F.3d 141 (5® Cir. 1999)

12

=

Cases (continued)

United States v. Daily, 921 F.2d 994 (10* Cir. 1990)

United States v. Deisch, 20 F.3d 139 (5* Cir. 1994)

United States v. DiRe, 332 U.S. 581 (1948)

United States v. Gayle, 967 F.2d 483 (11% Cir. 1992)

United States v. Gray, 56 F.3d 1219 (10* Cir. 1995)

United States v. Hooker, 841 F.2d 1225 (4* Cir. 1988)

United States v. Johnson, 529 U.S. 53 (2000)

United States v. Lindholm, 24 F .3d 1078 (9* Cir. 1994)

United States v. Meacham, 626 F .2d 503 (5* Cir. 1980)

United States v. Morales-Alejo 193 F.3d 1102 (9 Cir. 1999)

United States v. Radetsky, 535 F.2d 556 (9* Cir. 1975)

cert. denied, 429 U.S. 820 (1976)

United States v. Salerno, 481 U.S. 739 (1987)

United States v. Sanford, 979 F.2d 1511 (11® Cir. 1992)

United States v. Shoup,608 F.2d 950 (3™ Cir. 1979)

United States v. Watson, 423 U.S. 411 (1976)

United States v. Wells, 519 U.S. 482 (1997)

United States v. Yagow, 953 F.2d 427 (8* Cir. 1992)

cert. denied, 506 U.S. 833 (1992)

Statutes and Rules:

Federal Rule of Criminal Procedure 5

Federal Rule of Criminal Procedure 7(c){1)

Federal Rule of Criminal Procedure 12(b)(2)

Federal Rule of Criminal Procedure 20

Kansas Revised Statute §22-2703

Kansas Revised Statute §22-2714

Restatement (Second) of Torts §538 (1976)

U.S.S.G. §§5D1.3.(c), (d)

Statute and Rules (continued)

11 U.S.C. §727

18 U.S.C. §152(3)

18 U.S.C. §1341

18 U.S.C. §1342

18 U.S.C. §1344

18 U.S.C. §1621

18 U.S.C. §3553(a)(2)(D)

18 U.S.C. §3559

18 U.S.C. §3581

18 U.S.C. §3624(e)

18 U.S.C. §4101(b)

iV.

In the Supreme Court of the United States

No. 00-3917

MARILYN M. Moss

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

ser emnnany apes

PETITION FOR A WRIT OF CERTIORARI

The Defendant, on her own behalf, respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Appendix, infra, 1a-4a ) does not

have a citation.

JURISDICTION

The initial judgment of the court of appeals was entered on July 26,

2001. The judgment of the court of appeals on rehearing was entered

on October 1, 2001. The jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

]

2

CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment

In all criminal prosecutions, the accused shall . . . be informed of the

nature and cause of the accusation; . . .and to have the Assistance of

Counsel for his defense.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, . . .nor

be deprived of life, liberty, or property, without due process of law.

RULES INVOLVED

_ 18US.C. $152(3)

A person who (3) knowingly and fraudulently makes a false

declaration, certificate, verification, or statement under penalty of

perjury as permitted under section 1746 of title 28, or in relation to

any case under title 11 shall be fined under this title, imprisoned not

more than 5 years or both.

Federal Rule of Criminal Procedure 7(c)(1)

In General. The indictment or the information shall be a plain, concise

and definite written statement of the essential facts constituting the

offense charged. . .

U.S.S.G. §5D.1.1(a), (6)

(a) The court shall order a term of supervised release to follow

imprisonment when a sentence of imprisonment of more than one

year is imposed, or when required by statute.

(b) The court may order a term of supervised release to follow

imprisonment in any other case. (emphasis added)

18 U.S.C. $3624(e)

Supervision After Release

A prisoner whose sentence includes a term of supervised release after

imprisonment shall be released by the Bureau of Prisons to the

supervision of a probation officer. (emphasis added) .

STATEMENT

After being in Pretrial Detention for 15 % months and

following a denial of her third Motion For Pretrial Release on June 7,

2000, Petitioner entered a plea of guilty to Count I of the indictment

for filing a false pleading in a bankruptcy case in violation of 18

U.S.C. §152(3). Count II of the indictment was dismissed. On June

8, 2000, the date of the plea, Petitioner was released on pretrial bond.

On November 8, 2000, Petitioner was sentenced to the maximum of

6 months imprisonment and a term of two years supervised release.’

Six of the 15 % months of pretrial detainment were applied to the 6

month sentence and no credit was given for 9 2 months pretrial

detainment.

For a statement to be “material” in a charge of bankruptcy

fraud under 18 U.S.C. §152(3), it: “must be pertinent to the nature

and extent of the bankrupt’s assets, matters pertinent to his financial

transactions and statements designed to secure adjudication by a

1 After being released on June 8, 2000, Petitioner learned from

reviewing the Eighth Circuit Pattern Criminal Jury Instruction No.

6.18.152B that for statements to constitute a crime, they have to be

“material.” Petitioner’s counsel, who was paid $17,500 in cash by

Petitioner’s 86 year old mother who could not afford it, was so

ineffective he did not even bother to look up the elements of

Petitioner’s alleged crime. Petitioner, on her own behalf, filed a

Presentence Memorandum and Motion To Dismiss which was denied

at the sentencing hearing.

4

particular bankruptcy court.” United States v. Yagow, 953 F.2d 427,

432 n. 2 (8* Cir.), cert. denied, 506 U.S. 833 (1992)

Petitioner suggests that none of the statements in Count I of

the Indictment are material. The statements are:

“. . she had been diagnosed with multiple sclerosis, that in the

past five years she had been bedridden and unable to control

her bowels or bladder, that she had lost the use of her legs,

that her vocal cords were useless and she had difficulty

speaking. . .”

For making these harmless’ statements, Petitioner, now a 54-year old

“felon” cannot get a decent job because of the criminal record, has

been unlawfully deprived of her property because of the illegal seizure

and has been traumatized by the unnecessary and inhumane treatment

by the government. The government’s prejudicial omission of the

“materiality element” in the indictment deprived Petitioner of

knowledge that the statements must be “material” for a crime to exist.

The omission violates Petitioner’s Fifth and Sixth Amendment rights

and deprive the District Court of subject matter jurisdiction.. There

would have been no plea nor any conviction if the “materiality”

element had been included in the Indictment.

And finally, Petitioner suggests that ifthe Grand Jury had been

told the statements must be “material,” no Indictment would have

been handed down. Any reasonable person understands that

symptoms of physical illness are not “material” to the financial issues

a bankruptcy case as described by the Yagow Court.

The Court of Appeals for the Eighth Circuit affirmed

Petitioner’s conviction and sentence.

2 In their investigation, the U.S. Probation Department determined and

stated in their Presentence Investigation Report that there were no victims

and no damages as a result of Petitioner’s alleged false statements.

5

1. Background/California Civil Action. The incidents which

lead up to the criminal matter arose from a civil California attorney-

client fee dispute concerning the California case entitled Moss v. Santa

Fe Railroad CV89-5909KN(ex) resolved in 1992. Ina nutshell, after

abandoning Petitioner and ke California employment law case in

1990, Petitioner’s former attorneys have sought to obtain over

$600,000 in attorney fees they never earned.’ Petitioner’s former

attorneys engaged in an ex parte arbitration in California which

Petitioner was not informed of date or time and presented fraudulent

_ information to the arbitrators to obtain their $600,000 award. That

has been the basis of numerous the former attorneys have filed against

Petitioner and her subsequent Moss v. Santa Fe attorney since 1992.

It continues to go on now.

After Petitioner erroneously filed the Missouri bankruptcy case

in 1998, the former attorney’s counsel instigated Petitioner’s unlawful

arrest as part of their strategy to obtain Petitioner’s 1992 personal

injury proceeds.

2. The Missouri Bankruptcy Case. The In re Moss bankruptcy

case was erroneously commenced on August 6, 1998. There is only

one alleged creditor, whose Proof of Claim is disputed and that matter

is now pending before the Eighth Circuit Court of Appeals. Moss v.

Burton & Norris 01-3909. A Proof of Claim in a bankruptcy case is

decided under nonbankruptcy laws. In re Oriental Rug Warehouse

Club, Inc. 205 B.R. 407 (8" Cir. 1997) citing United States v. Sanford

3 Under California laws, attorneys holding a contingency fee

retainer agreement are not entitled to any attorney fees if they withdraw from

a case because they believe it is worthless. Estate of Falco 188 Cal.App.3d

1004 (1987). To insure the understanding was correct Petitioner’s former

attorneys signed a lien release agreement. But, two years later after the Moss

v. Santa Fe case went to trial and Petitioner won, the original defaulting

attorneys sued Petitioner for over $600,000.

6

979 F.2d 1511, 1513 (11® Cir. 1992); 11 U.S.C. §502(b)(1) Under

nonbankruptcy laws, the 1993 California claim is not enforceable

against Petitioner, who has been an Arizona domicile since 1997.

Additionally, under nonbankruptcy laws, both Missouri and California

courts lack personal jurisdiction over an Arizona domicile and the

California claim has never been registered in Missouri nor Arizona as

required by the laws of those states.. And finally, the California claim

is not enforceable in California according to California exemption and

lien laws, which means that under nonbankruptcy laws, the California

claim may not be given Full Faith and Credit by any other district.

3. The Criminal Case. On February 24, 1999, no criminal

complaint had been filed and no warrants issued. Petitioner Marilyn

Moss, age 52 at the time, had never been arrested in her life.

Petitioner had not so much as a parking ticket on her record.

Nevertheless, on verbal instruction by Missouri FBI agent, the

Ottawa, KS police arrested Petitioner in the backseat of her Mother’s

car and took her to the Ottawa, KS jail.‘ There Petitioner was held

for over four hours, deprived of making any phone calls to talk to an

attorney, refused to learn why she had been arrested and was deprived

of food or water. Petitioner was then turned over to the Missouri FBI

agents who, over Petitioner’s objections, transported Petitioner across

state lines without giving Petitioner any opportunity to consult with

—

4 Under the case of Ex Parte Swift 275 Federal Reporter 57

(E.D.Mo. 1922), a United States District Attorney is without color of

authority to verbally order a state employee to arrest a person without

a warrant for alleged violation of federal statute. Arrest without a

warrant is governed by law of the state where the arrest takes place.

U.S. v. Watson, 423 U.S. 411, 420 n.8 (1976) see also U.S. v. DiRe

332 U.S. 581 (1948).

7

an attorney or have an extradition hearing.* In transit, Petitioner was

handcuffed behind her back in a very painful manner causing her

wrists to be cut by the handcuffs. At the FBI office in Missouri,

Petitioner was repeatedly threatened and was handcuffed to a bar on

the wall and told if she did not sign documents they put in front of her,

she would be left there indefinitely. Petitioner was then taken to a

Clay County jail and housed in inhumane conditions. Petitioner had

no food or water for over 24 hours after the unlawful arrest.

A Criminal Complaint was filed the following day, February

25, 1999 and alleged Petitioner had filed two false papers with the

Missouri bankruptcy court. Subsequently on March 2, 1999,

Petitioner was indicted, without any opportunity to testify before the

Grand Jury, on two counts of filing two false pleadings in the Missouri

bankruptcy court. By omitting unlawful conditions of arrest from the

search warrant affidavits, Missouri FBI agents obtained Kansas search

warrants. On April 14, 1999, the Criminal Complaint was dismissed.

Petitioner was denied bond on March 2, 1999, April 20, 1999 on

motion for reconsideration and a third time on June 7, 2000.

On April 16, 1999, Petitioner’s counsel filed a “Motion for

5 Under Kansas Revised Statute Sect. 22-2714, Federal Rule

of Criminal Procedure 5 and 18 U.S.C. Section 3041, a citizen

arrested without a warrant is entitled to be taken before a magistrate

in the district in which they are arrested immediately. Petitioner was

arrested at 11 a.m. on a week day and could have easily been taken to

a Kansas magistrate and be given a hearing. Under Federal Rule of

Criminal Procedure 20, a citizen is entitled to an extradition hearing

before being transported over state lines. Under Kansas Statute 22-

2703, the governor will not recognize the taking of a person from

Kansas without a warrant or other writing evidencing the alleged

crime. The Missouri officials were in violation of federal and state

laws in this matter.

8

Judicial Determination of Defendant’s Mental Competency.” On May

3, 1999, Petitioner was flown to Oklahoma City transfer prison to

await further transportation to Federal Medical Center Carswell, Ft.

Worth, TX. Conditions at Oklahoma City and Ft. Worth were

inhumane. Petitioner, a pretrial detainee, never arrested in her life,

was locked down in a cold, filthy cell 23 hours a day and kept in

solitary confinement for seven days. The food was unfit to eat and

Petitioner, who has a naturally thin frame to begin with, lost twelve

pounds in that one week. In solitary confinement at Oklahoma City,

the guards and “doctors” who are supposed to furnish detainees with

medications do not do so resulting in the detainees hallucinating,

screaming and yelling 24 hours a day, seven days a week. Detainees

in the solitary confinement unit bang on the metal shower walls with

their feet and scream at the top of their hungs all hours of the day and

night. It was a horrifying experience.

The treatment at Federal Medical Center, Carswell was even

worse. There, Petitioner, a pretrial detainee, who has never been

convicted was forcibly drugged and interrogated about her case.

Petitioner was deathly ill from being forcibly drugged with

medications to which she is allergic. The shock of the arrest and the

inhumane conditions of confinement by the government has caused

unwarranted trauma.

On June 7, 2000, after again being denied bond, Petitioner’s

attorney told her if she did not plead guilty to one count of filing a

false paper that she would never see her 86 year old mother again and

that they would not release her. Petitioner was threatened to be sent

back to the inhumane conditions of Federal Medical Center, Carswell

if she did not plead guilty to Count I of filing a false paper. On the

other hand, if she plead guilty to one count, Petitioner was promised

she would be released on bond and could see her Mother, whom she

9

had not seen for 15 ‘2 months. After being threatened by her own

ineffective counsel, Petitioner believed she had no choice but to plead

guilty to Count 1 of the indictment which she did. Petitioner was

released that very day, June 8, 2000.

REASONS PETITION SHOULD BE GRANTED

1. Conflict of Circuits. There is a conflict between circuits

and a misunderstanding by the government in this case about whether

or not “materiality” is an essential element to establish a prima facie

case of bankruptcy fraud under 18 U.S.C. §152(3). With the increase

in bankruptcy filings and the December 2 filing of the largest

bankruptcy case in history (Jn re Enron Corp.), Petitioner suggests

that this is a perfect opportunity for this Court to resolve the conflicts

about whether or not “materiality” is an essential element in

bankruptcy fraud statutes and provide guidance to the circuits as to

what subject matter is considered “material” in a bankruptcy case and

what subject matter is ”not material.” For instance, in their Brief for

Appellee, the government said the “materiality” element is not

essential because in the 10" Circuit case of United States v. Grey, 56

F.3d 1219 (10" Cir. 1995) that court only gave due consideration to

the issue after the Greys objected to the missing element.

Likewise in the Ninth Circuit case of United States v.

Lindholm 24 F.3d 1078 (9" Cir. 1994), the government said the

“materiality” element was not essential or if it was, the omission of it

was harmless error.

In bankruptcy courts, the issue of whether or not a false

statement is “material” is routinely considered for purposes of

deciding if a debt is dischargeable under 11 U.S.C. §727.

! 10

Examples of “materiality” of false statements made in

bankruptcy cases concerning discharge are:

(1) In reSchroff 156 B.R. 250, 256 (1993), the Schroff court found

that: “transfer of CBR stock, failure to list the transfer and

failure to list assets and liabilities” satisfy the “materiality”

requirement to deny debtor discharge.

(2) In re Buck 166 B.R. 106 (Bkrtcy.M.D.Tenn.1993), the

bankruptcy court held that while erroneous entries of

particular assets on the bankruptcy petition are “material,” that

there is no evidence that there was any intend to defraud and

that such entries were merely mistakes of the debtor.

(3) In re Shah 169 B.R. 17, 21 (Bkrtcy.E.D.N.Y. 1994), the

bankruptcy court held that “a false oath respecting worthless

assets can constitute a material omission. . .”

In the instant case, however, Petitioner suggests it is not in the realm

of possibility that the statements in Count I of the indictment could

ever be “material.” Those statements are:

“she had been diagnosed with multiple sclerosis, that in the

past five years she had been bedridden and unable to control

her bowels and bladder, that she had lost the use of her legs,

that her vocal cords were useless and she had difficulty

speaking. . .”

These unrelated statements have no connection whatsoever with the

bankruptcy issues and should be deemed immaterial.

In an indictment, omission of an essential element of a crime

is more important. The Federal Rule of Criminai Procedure 7(c)(1)

requires that all elements of an offense be included. Failure to include

all elements deprives the accused of their Sixth Amendment right

being of knowing what the charges are so they can defend their

1]

innocence. If Petitioner had known the element of “materiality” was

a requirement as set forth in United States v. Yagow, 953 F.2d 427

cert.den. 506 U.S. 833 (1992), there would have been no plea bargain

and no conviction in this case.

An immaterial statement made in a bankruptcy case does not

constitute any crime.

While this Court in the case of Neder v. United States

527 U.S. 1 (1999) has made clear that “materiality” is an essential

element under mail fraud, wire fraud and bank fraud statutes, 18

U.S.C. §§1341, 1342 and 1344, the “materiality” question concerning

bankruptcy fraud statutes has not yet been addressed.

There are differences between the bankruptcy fraud statutes

and the mail fraud, wire fraud and bank fraud statutes. The major

difference is that the bankruptcy statutes contain the wording “under

penalty of perjury” more closely aligning bankruptcy fraud statutes

with the perjury statute 18 U.S.C. §1621. Unlike bankruptcy fraud

statutes, mail fraud, wire fraud and bank fraud statutes, the perjury

statute contains the “materiality” wording on it’s face. But, as Chief

Justice Rehnquist eloquently articulated a two-part analysis

concerning the “materiality” element.

First, the Chief Justice looked at the statute to determine if

“materiality” is included in the text of the statute under United States

v. Wells 519 U.S. 482 (1997).

Second, the Chief Justice concluded that the inquiry does not

end with the answer to that question. Chief Justice Rehnquist stated

that ““[w]here Congress uses terms that have accumulated settled

meaning under . . .the common law, a court must infer, unless the

statute otherwise dictates, that Congress means to incorporate the

established meaning to these terms.” Nationwide Mut. Ins. Co. v.

Darden, 503 U.S. 318, 322 (1992) (quoting Community for Creative

12

on-Violence v. Reid, 490 U.S. 730, 739 (1989)); see Standard Oil Co.

of N.J. v. United States, 221 U.S. 1, 59 (1911) (“[W]here words are

employed in a statute which had at the time a well-known meaning at

common law or in the law of this country, they are presumed to have

been used in that sense”).

Neder contends that “defraud” is just such a term, and that

Congress implicitly incorporated its common-law meaning, including

its requirement of materiality into the [banking, mail and wire fraud]

statutes Likewise, 18 U.S.C. §152(3) does not have the actual word

“materiality” in it but the Courts have nevertheless required the

element in most jurisdictions.° To complete the discussion of the

“materiality” element in criminal statutes which do not expressly

contain that word, Petitioner prays this Petition will be granted.

2. Insufficient Indictment

A District Court lacks subject matter jurisdiction if the

Indictment is found to be insufficient. A criminal conviction must be

vacated if it is determined that the indictment does not contain all of

the elements of the offense. United States v. Gayle, 967 F.2d 483,

485 (11™ Cir. 1992)(en banc); United States v. Brown, 995 F.2d 1493,

1505 (10" Cir. 1993). This requirement serves two fundamental

functions: }

First, it informs the defendant of the nature and cause of

the accusation as required by the Sixth Amendment of The

Constitution.

6 The Restatement instructs that a matter is material if: “(a) a reasonable

man would attach importance to its existence or nonexistence in determining

his choice of action in the transaction in question; or (b) the maker of the

representation knows or has reason to know that its recipient regards or is

likely to regard the matter as important in determining his choice of action,

although a reasonable man would not so regard it.” Restatement (Second)

of Torts Sect. 538 (1976).

13

Second, it fulfills the Fifth Amendment’s indictment

requirement, ensuring that a grand jury only return an indictment when

it finds probable cause to support all the necessary elements of the

crime. Gayle, 967 F.2d at 485; see also United States v. Hooker, 841

F.2d 1225, 1230 (4" Cir. 1988)(“The requirement of notice derives

from the defendant’s Sixth Amendment right to be informed of the

nature and cause of the accusation. . . [The requirement of the]

inclusion of all elements. . .derives from the Fifth Amendment, which

requires that the grand jury have considered and found all elements to

be present.”); United States v. Radetsky, 535 F.2d 556, 562 (9" Cir.

1975)(holding that a sufficient indictment “is of paramount

importance” and “required. . .to avoid [a] conviction on facts not

found, or perhaps not even presented to, the grand jury that indicted

the [defendant]”), cert. denied, 429 U.S. 820}(1976), overruled in

part on other grounds, United States v. Daily, 921 F.2d 994, 1004 &

n.11(10th Cir.1990); U.S. Const. amend. V(“No person shall be held

to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury.”);U.S. Const .amend. VI

(“In all criminal prosecutions, the accused shall enjoy the right. . .to

be informed of the nature and cause of the accusation.”).

Narrowing the inquiry to the Fifth Amendment, it is not

enough that the grand jury concludes that the defendant should be

prosecuted for violating a particular statute; rather, the indictment

must also allege every element of the offense. Only in this way is any

assurance furnished that the grand jury found probable cause to

believe that the defendant in fact committed acts constituting the

offense in question. United States v. Deisch, 20 F.3d 139, 145-46 (5"

Cir. 1994). i

To be sufficient, an indictment must allege each material

element of the offense; if it does not, it fails to charge that offense.

14

This requirement stems from one of the central purposes of an

indictment: to ensure that the grand jury finds probable cause that the

defendant has committed each element of the offense, hence justifying

a trial, as required by the Fifth Amendment. United States v. Cabrera-

Teran, 168 F.3d 141, 143 (5" Cir. 1999)(emphasis added). The

omission of an element is “such a critical omission” that the Federal

Rules of Criminal Procedure require it to “be noted by an appellate

court sua sponte.” Brown, 995 F.2d at 1504 (citing United States v.

Meacham, 626 F.2d 503, 509 (5" Cir. 1980)(stating that the language

of Fed.R.Crim.P.12(b)(2) requires that failure of indictment to charge

an offense be noticed by district courts and appellate courts sua

sponte)); see also United States v. Shoup, 608 F.2d 950, 960 (3 Cir.

1979)(stating the general rule that courts must notice an indictments

defect in failing to charge a federal offense as jurisdictional).

In the instant case, the Grand Jury failed to include the

essential element of “materiality” in the indictment. As such,

Petitioner suggests the Indictment fails and should be vacated.

3. The Conviction and Sentence.

The appeals court opinion violates congressional intent and

plain statutory wording concerning the conviction and sentence. The

15 % months detention plus 5 months pretrial release plus 2 years

Supervised Release Petitioner is enduring for making statements about

harmless medical problems, exceeds Sentencing Guidelines and

violates congressional intent.

To support it’s position, the appeals court cites U.S. Supreme

Court case United States v. Johnson 529 U.S. 53 (2000). In Johnson,

this Court describes Congressional intent concerning Supervised

Release: “to assist individuals in their transition to community life.

Supervised release fulfills rehabilitative ends, distinct from those

served by incarceration. 18 U.S.C. §3553(a)(2)(D); United States

15

Sentencing Commission, Guidelines Manual §§5D1.3(c), (d), (e)(Nov.

1998); see also S.Rep. No. 98-225, p. 124 (1983) declaring that

“the primary goal [of supervised release] is to ease the

defendant’s transition into the community after the service of

a long prison term for a particularly serious offense, or to

provide rehabilitation to a defendant who has spent a fairly

short period in prison for punishment or other purposes but

still needs supervision and training programs after release.”

After never having been arrested or having any criminal history

whatever for the first 52 years of Petitioner’s life; after being on

pretrial release for 5 months and being full-time employed for 4

months at the time of sentencing, Petitioner is clearly not a candidate

for Supervised Release, even if it were legal, which under the plain

wording of 18 U.S.C. §3624(e), it is not. Petitioner was never

“imprisoned” nor in custody of Bureau of Prisons which are

requirements for imposition of Supervised Release.

In the case of U.S. v. Morales-Alejo 193 F.3d at page 1105,

the Morales-Alejo Court stated that:

“. . Congress uses the terms “imprisonment” and “detention”

very different in federal criminal statutes. The term “imprisonment”

consistently is used to refer to a penalty or sentence. See e.g. 18

U.S.C. §3559 (using the term imprisonment as meaning sentence after

conviction); 18 U.S.C. §3581 (same); 18 U.S.C. §4101(b)(referring

to imprisonment in the context of transfers to foreign contries and

defining imprisonment as “a penalty imposed by a court under which

the individual is confined to an institution”).

“In contrast, the term ‘detention’ is used to describe a

mechanism to insure a defendant’s appearance and safety of the

community. See, e.g., 18 U.S.C. §3142(c) U.S. v. Salerno 481 U.S.

739, 748 (1987)(characterizing the statutes authorizing pretrial

16

detention as regulatory in nature).”

There was no legal or factual reason why Petitioner was given

the maximum 6 month imprisonment sentence nor why Petitioner was

given a term of Supervised Release. And, as of now, no credit has

been given for 9 2 months of pretrial detainment.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MARILYN M. MOSS

Petitioner

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 00-3917

99-00037-01-CR-W-4

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

MARILYN M. MOSS, DEFENDANT-APPELLANT

Appeal from the United States District Court

For the District of Western Missouri

Gary A. Fenner, District Judge, Presiding

Argued and Submitted

June 1, 2001 St. Louis, Missouri

ORDER

Before: MORRIS SHEPPARD ARNOLD,

RICHARD S. ARNOLD, AND FAGG,

Circuit Judges.

« + * * «

The Order filed October 1, 2001 is as follows: The petition for

rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

2a

OPINION

Before: MORRIS SHEPPARD ARNOLD, RICHARD S.

ARNOLD, and FAGG, Circuit Judges.

PER CURIAM:

Marilyn Moss appeals pro se from her conviction, entered

upon a guilty plea, for knowingly making a false statement in a

bankruptcy proceeding, in violation of 18 U.S.C. §152. She was

sentenced to six months’ imprisonment to be followed by two years’

supervised release. Ms. Moss received credit towards the entire

prison term in light of the 15 2 months she spent in pretrial detention.

For reversal, Ms. Moss claims that she would not have pleaded guilty

but for counsel’s ineffectiveness in failing to advise her that (1) the

indictment did not set forth an offense because it did not allege that

the false statement was material; (2) she should have received credit

for time served towards the term of supervised release; (3) the

government has been guilty of misconduct surrounding her arrest,

warranting dismissal of the indictment; and (4) the conditions of her

supervised release that she not possess a firearm, and that she not file

frivolous papers in her bankruptcy action, are illegal. She also

presents these as free-standing claims. We affirm.

I.

Ms. Moss was arrested in Kansas by Kansas police officers on

February 24, 1999, at the request of an FBI agent. On February 25,

a federal criminal complaint was filed against her in the Western

District of Missouri charging her with bankruptcy fraud. On March

2, 1999, she was charged in a two-count federal indictment with

knowingly and fraudulently making false statements under penalty of

perjury in a Chapter 7 bankruptcy case she had filed in the Western

District of Missouri. Count I alleged that in a pleading seeking to

3a

postpone the creditors’ meeting, she had misrepresented that she was

extremely ill and could not attend the meeting. Count II alleged that

she had subsequently filed a false declaration of her own death. Also

on March 2, following a hearing, Ms. Moss was detained as a flight

On April 16, 1999, Ms. Moss attorney filed a motion for a

judicial determination of Ms. Moss’ competency to stand trial. On

July 21, 1999, the District Court found that Ms. Moss was not

competent to stand trial, and she was detained in the federal medical

center until May 25, 2000, when the District Court found her

competent. On June 8, 2000, Ms. Moss pleaded guilty of Count I of

the indictment, the government dismissed the second count, and the

District Court released her on bond.

On November 8, 2000, the District Court sentenced Ms. Moss

to six months, the maximum term of imprisonment under the

Sentencing Guidelines, with credit for the 15 2 months

already served, to be followed by two years supervised release.

il.

In pleading guilty, a criminal defendant admits the factual

allegations in the indictment and waives all nonjurisdictional defects.

O'Leary v. United States, 856 F.2d 1142, 1143 (8" Cir. 1988). A

claim that the indictment on its face fails to state an offense is a

“Jurisdictional” claim that is not waived. Jd. Here, however, even if

materiality of the false statement is an element of 18 U.S.C. §152,

Count I of the indictment alleges sufficient facts to satisfy this

element. See United States v. Yagow, 953 F.2d 427, 433 (8" Cir.)

(Materiality of misrepresentation for purposes of bankruptcy fraud is

not limited to statements that relate to the assets of the bankrupt

estate), cert. denied, 506 U.S. 833 (1992).

4a

Ms. Moss’ claim of government misconduct surrounding her

arrest was waived by her guilty plea. Her claims concerning her

conditions of her supervised release are without merit. We also

conclude that her claim that she is entitled to credit toward her two-

year term of supervised release for the time she served in pretrial

detention is without merit. See United States v. Johnson, 529 U.S.

53. 57 (2000)(“supervised release does not run while an individual

remains in the custody of the Bureau of Prisons.”).

Accordingly, we affirm the conviction and sentence.

Sa

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

UNITED STATES OF AMERICA, ) No. 99-00037-01-CR-W-4

Plaintiff, ) COUNTS ONE AND TWO:

) 18U.S.C. §15.

v. ) Class D Felony

MARILYN M. MOSS, ) NMTS5 years, $250,000 fine

a/k/a Marilyn M. Bryant, ) NMT 3 years supervised

a/k/a Marilyn W. Bryant, ) $100 Special Assessment

[DOB: 02/25/47] ) Each Count

Defendant. )

INDICTMENT

THE GRAND JURY CHARGES THAT:

COUNT ONE

On or about August 27, 1998, at Kansas City, in the Western

District of Missouri, defendant MARILYN M. MOSS, a/k/a Marilyn M.

Bryant and a/k/a Margaret W. Bryant, in the case filed in the United

States Bankruptcy Court for the Western District of Missouri under

Title 11 of the United States Code and styled, “In re Marilyn M.

Moss, Debtor,”. Bankruptcy Case No. 98-43272-W-KMS, did

knowingly and fraudulently make false declarations and statements

under penalty of perjury in a pleading captioned ‘Disabled Debtor Ex

Parte Application for 30 day Continuance of Creditors Meeting and

Accommodation under Americans with Disabilities Act,” including a

“Declaration of Dr. Joseph Lindsay,” in that defendant MARILYN M.

MOSS knowingly and fraudulently stated and caused to be stated in

such pleading that she had been diagnosed with multiple sclerosis, that

6a

in the past five years she had been bedridden and unable to control her

bowels and bladder, that she had lost the use of her legs, that her

vocal cords were useless and she had difficulty speaking, whereas

defendant knew these statements were false, and further that the

“Declaration of Dr. Joseph Lindsay” had been signed by a “Dr. Joseph

Lindsay,” whereas defendant knew that no such person had signed this

Declaration and further that the Proof of Service for such pleading had

been signed by a “Karen Anderson” whose business address was

“2210 South Main, Kansas City, Missouri,” whereas defendant knew

that no such person at such address had signed the Proof of Service;

all in violation of Title 18, United States Code, Section 152(3).

COUNT TWO

On or about November 23, 1998, at Kansas City, in the

Western Distrit of Missouri, defendant MARILYN M. MOSS, a/k/a

Marilyn M. Bryant and a/k/a/ Marilyn W. Bryant, in the case filed in

the UnitedStates Bankruptcy Court for the Western District of

Missouri under Title 11 of the United States Code and Styled, “In re

Marilyn M. Mos, Debtor,” Bankruptcy Case No. 98-43272-W-KMS,

did knowingly and fraudulently make false declarations and statements

under penalty of perjury in a pleading captioned, “Notification of

Death of Debtor Marilyn Moss” and “Declaration of Jonathan

Lindstrom,” in that defendant MARILYN M. MOSS knowingly and

fraudulently stated and caused to be stated in such pleading that on

November 15, 1998, Marilyn Moss had died of a brain aneurysm, and

that the few assets left in the estate had to be used to pay for her

coffin and tombstone, whereas defendant knew that she had not died,

and further that the Declaration had been signed by Jonathan

Lindstrom as administrator of the Last Will and Testament of Marilyn

Moss, whereas defenant knew that no such person had signed the

Declaration and that there was no administrator of her Last Will and

Ta

Testament; all in violation of Title 18, United States Code, Section

152(3).

A TRUE BILL

/s/ Dani s

Foreperson of the Grand Jury

/s/ J, Daniel Stewart

J. Daniel Stewart #32314

Assistant United States Attorney