Reply Brief — Allen v. Montana (No. 09-239)

Supreme Court, U.S.

FILED

DEC 15 2009

| 6 € OFFICE OF THE CLERK

No. 99-239

In The

Supreme Court of the United States

Josh A. Allen,

Petitioner,

Vv.

State of Montana,

Respondent.

On Petition For Writ of Certiorari

To The Montana State Supreme Court

REPLY BRIEF FOR THE PETITIONER

Josh A. Allen

Pro Se

P.O. Box 1621

Havre, Mt, 59501

(406)-265-2614

(406)-399-03276

TABLE OF CONTENTS

Page

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REPLY BRIEF FOR THE PETITIONER................ 1

I. DISAGREEMENT(S) WITH RESPONDENT'S

RAL EASA E CPE LRGs CPS ii iis ceniccasstcssacseccuscebins 2

Il. REASONS THE PETITION SHOULD BE

: PETITIONER WAS DENIED EQUAL

PROTECTION AND DUE PROCESS WHEN HE

WASN'T ALLOWED TO TESTIFY IN HIS OWN

ERE WIN ea nsssxxninnsesnrh adaiavesuewaseeies unseat aan n eee 3

2. THIS CASE IS DIFFERENT FROM HIIBEL......5

3. THIS CASE PRESENTS AN OPPORTUNITY TO

BETTER UNDERSTAND MIRANDA RIGHTS.......9

AP OWA IRF ONT scons an xeiena ecnancieseaneee Vale eee 10

TABLE OF AUTHORITIES

Page

Cases

Belnap v. U.S. et al, Dist Court (Utah), No C. 149-

Berkemer v. McCarty, 468 U.S. 420, 439 (1984).....10

Boyd vs. U.S._Supra; Brown vs Walker, 161, U.S.

Nn neweunevseaee:stedessoovecs 8

Gordon v. Idaho, 778 F2d 1397 9'» (1985)

federal circuit court of appeals oath issue...............3

Hiibel v. Nevada 542 U.S. (2004).................ccceeccee00D

Hoffman v U.S. (CF 341 U.S. 479,486,71 CT.

Nos. incavasveveveseesceseveseecsvseees %

Marchetti v. U.S. 390 U.S. 39 (1967)...................... 7

Miranda v. Arizona, 384 U.S. 436, 467 (1966)......... 7

NE a? LO

REPLY BRIEF FOR THE PETITIONER

In their opposition to the petition for writ of

certiorari, Respondent attempts to “reframe the

debate”, by answering off point and out of context the

issues that petitioner raises. This is further

compounded by the fact that petitioner wasn’t

allowed to testify in his own defense. To begin with,

the Petitioner would like to state that he doesn’t

agree with or concede to anything in_ the

Respondent’s brief of opposition unless expressly

stated here or in petitioner’s request for a Writ of

Certiorari. Petitioner expressly disagrees with the

Respondent’s restating the issues on page (i) of his

Brief in opposition. Petitioner disagrees that

Respondent’s STATEMENT OF THE CASE is

factually correct, and maintains that his

STATEMENT OF THE CASE is the true and

accurate one. Petitioner, not being allowed to testify,

couldn’t make the record to explain how Deputy

Matkin’s testimony changed from the Justice Court

to the District Court, in order to comport his actions

and testimony to existing case law and _ legal

definitions, all at the coaching of the _ local

prosecuting ~~ attorney. Respondent makes

unsubstantiated suppositions about Petitioner's

behavior and legal arguments, while making light of

the fact that Petitioner wasn't allowed to testify.

Petitioner would suggest that the State of

Montana, via its prosecuting attorneys and Courts,

has gone to such lengths to avoid admitting that they

falsely arrested and imprisoned Petitioner.

I. DISAGREEMENT(S) WITH RESPONDENT’S

STATEMENT OF THE CASE

On page 1 of Respondents Brief (RB) Deputy

Matkin claims Petitioner ducked behind a hedge,

and began to run around the building. Petitioner did

not duck behind any hedge row. Petitioner did not

run as hard as he could. On (p4 RB) Matkin claims

Petitioner attempted to “hook” his legs. This is a flat

out lie; Petitioner moved his foot about two inches in

order to move his right hip in anticipation of Matkin

removing his wallet from his pocket. When he did

this, officer Mike Labaty grabbed a big handful of

petitioners hair, rudely yanked his head back, and

yelled in his ear, “that’s a felony boy assaulting an

officer, now you're going to Deerlodge” (Montana

State prison location). Fearing further assault upon

him, petitioner quickly explained that he didn’t want

the contents of his wallet spilled. As Petitioner sat

in the holding cell at the Detention center, he

listened to Matkin tell the booking officer how he

would “lke to charge him with felony assault, but

didn’t think he could make it stick”. Petitioner has

stated this in his pleadings to the lower courts

already.

When petitioner stated that there where no

factual issues to be decided at trial” and only legal

issues, he meant insofar as the issue of whether he

did or did not give his name. On (p7 RB) respondent

raises petitioner’s reliance on previous Supreme

Court cases and his recent awareness of Hitbel.

Petitioner mentioned this in his earlier defenses as

Montana law states that relving on U.S. Supreme

Court cases is a defense. Here respondent is

insinuating that Petitioner is raising his fear of an

“

arrest warrant after reading Alibel, in order to

create another defense based on Hiibel, this is

unsubstantiated and simply not true. Petitioner,

being a mere pro se litigant did not realize that his

fear was a valid defense. The Petitioner’s statement

about reading Hiibel after reading Brown v. Texas,

Terry v. Ohio, and Miranda was made in the context

of Relying on these cases as a defense to negate the

“knowingly portion of Mont code 45-7-302 (Appellate

Br. Montana Supreme Court page — 29).

II. REASONS THE PETITION SHOULD BE

GRANTED

1 PETITIONER WAS DENIED EQUAL

PROTECTION AND DUE PROCESS WHEN HE

WASN’T ALLOWED TO TESTIFY IN HIS OWN

DEFENSE.

Respondent essentially claims that Gordon v.

Idaho, 778 F.2d 1397 (1985) is off point and out of

context. The Montana Court’s treatment of the

issue, contrary to Respondent's claim, heavily

conflicts with Gordon. Gordon is directly on point in

this case. Respondent claims that Gordon did not

seek to avoid any sort of affirmation requirement

because “he represented he would affirm in the

following manner’,”! understand that I must teli the

truth, I agree to testify under penalty of perjury.”

(p24RB). Since when does a prosecuting attorney

have the authority to determine what “representing

to affirm” means? If you read Gordon, you will see

that he expressly refused to swear an oath or affirm

in any way because the two terms are synonymous,

and the cited biblical verses prohibit anything more

than a yes or no answer. Petitioner's Writ App. 24-

25. To decide that the Montana or Federal rules of

evidence requirements can override a_ Citizen’s

religious beliefs is both an infringement en religious

free exercise and equal protection and due process.

Respondent’s claim that the issue was not raised

until trial is patently false, as mentioned in

Petitioner’s Writ (App. 24-25), the “Notice of Refusal

to Swear or Affirm to Take an Oath” was filed almost

one full month ahead of trial, the District Judge had

a duty to at least read it, and then determine a way

for Petitioner to testify. Even being filed on the “eve”

of the preliminary hearing the judge could have read

a simple two page notice. Respondent claims that

“even at this late stage, Allen fails to apprise this

court how Allen’s ‘conscience could have _ been

awakened and his mind impressed with the duty to

testify truthfully without violating is _ alleged

religious beliefs” (p25 RB). Petitioner plainly agreed

to tell the truth in his notice. What more could

someone do who believes anything more than a ves

or no answer is prohibited by the bible? In this case,

just like Gordon, the Judge had a duty to investigate

and probe for a way for Petitioner to testify.

Contrary to what Respondent would claim, this

argument was raised the moment Gordon v. Idaho

was raised. Even if Gordon was never raised,

Petitioner still had the Constitutional right to testify

in accordance with his religious behefs. Petitioner

would have testified, but the judge would not let him.

Being allowed to testify could have easily shifted the

combination of legal issues and contested issues of

fact in the Petitioner's favor. Petitioner could have

testified, amongst other things. to his fear of having

an outstanding speeding ticket, and the fact that he

did not know whether or not he had any warrants

out for his arrest. Petitioner prays this Court will

give him relief from the lower courts running

roughshod over his rights, and in the process set

precedent to protect others from the same treatment.

2. THIS CASE IS DIFFERENT FROM HIIBEL.

The Respondent’s brief, though carefully

crafted is full of subtle contradictions and

unsubstantiated claims. In some places, Respondent

claims that Petitioner was trying to “evade” police,

while elsewhere he claims that Petitioner “knowingly

provoked” law enforcement. Does it make credible

sense that if Petitioner is trying to avoid a

confrontation with police, that he is also trying to

“bait” them? Does it make sense that Petitioner was

looking forward to a four day stay in jail, and al] of

this expense and effort to defend himself? Had

Petitioner been allowed to testify, he could have

explained that he was trying to avoid a late night

confrontation, because of bad past experience.

Respondent’s claim that Petitioner knowingly

provoked this is unsubstantiated.

The material circumstances that initiated this

case are what begin to set it apart from Hiibel v.

Nevada 542 U.S. (2004). In Brown v. Texas, Terry v.

Ohio, Kolender v. Lawson, and Petitioner’s case the

policeman just “happened upon” the suspect and

acted in his own unfettered discretion. In Hiibel the

police were called out to the scene to investigate.

Nor did Hiibel involve the tense circumstances of the

suspect being ordered to the ground and put in

handcuffs, and then placed under questioning.

Next, despite what Respondent would lke this

Court to believe, Montana law is different than

6

Nevada law, (Petitioners Writ p4-10). The language

of Mont. Code Ann 46-5-401 uses two different

words, request and demand, which are not

synonymous. Montana law mentions the suspect's

actions, address, and name under the word request.

Hiibel mentions demand of a name and nothing else.

Respondent claims the “language differences are

inconsequential because the request for

identification is clearly a lawful request’, (p28 RB).

A policeman can lawfully request that a murder

suspect confess, however even if that suspect is

guilty it is not a crime for the suspect not to confess.

Under Respondents line of reasoning it would be a

crime for the suspect to not confess, because

apparently Respondent believes request and demand

are legally synonymous. The simple fact of the

matter 1s Montana law doesn’t require a Citizen to

identify themselves to a policeman.

Next, Hiibel never made the claim that he was

concerned that his name could be the beginning link

in a chain of evidence. Respondent insinuates that

Petitioner read Hiibel, and then came up with this

defense. This is not true, had Petitioner been

allowed to testify, he could have substantiated this.

Even without this claim, Petitioner would like to

know how he could have known, at the scene that he

did not have any warrants out for his arrest, or that

there was no possible way for his name to be used

against him. Respondent claims (p23 RB) that the

police officers are “often forced to make split-second

judgements ~— in circumstances that are tense,

uncertain, and rapidly evolving’ (In regards to

placing Petitioner in handcuffs for officer safety). If

a policeman can make split-second decisions to

protect himself, then under equal protection and due

process shouldn't a Citizen be able to make similar

decisions to protect his rights? If the answer is no,

then how is the average man on the street who faces

a similar situation able to protect his rights? While

he is under pressure, being questioned at the scene

by a policeman, is he to think to himself, gee does

this situation fall under Terry, Brown, Kolender, or

Hiibel, what are my Miranda rights here? ‘To put

such a burden on the average citizen is to defeat the

simple intent of the Fifth Amendment. At the scene,

Petitioner was under this same duress and _ not

knowing for sure that his name could not be used

against him he chose to shut up

"The constitutional privilege was intended to

shield the guilty and imprudent as well as the

innocent and farsighted.” Marchetti v. U.S.

390 U.S. 39 (1967)

“You can and must keep your mouth shut for

protection under the 5th amendment.” Belnap

v. U.S. et al, Dist Court (Utah), No C. 149-71

“There can be no doubt that the Fifth

Amendment privilege is available outside of

criminal court proceedings and serves. to

protect persons in all settings in which their

freedom of action is curtailed in any

significant way from being compelled to

incriminate themselves” Miranda v. Arizona.

384 U.S. 436, 467 (1965)

Respondent cleverly fails to emphasize the

admission by deputy Matkin (p2, p15 RB) that one of

the purposes of wanting Petitioners name was to

search for warrants The hypocrisy of the

Respondent’s argument is that it is ok for the

policeman to demand a _ suspect’s name for the

purposes of looking for warrants, thus admitting the

value of the name for investigatory purposes, but it

is not ok for the suspect to withhold his name to

protect himself from the same investigation. ‘The

respondent thus concedes that petitioner’s name

could be the beginning link in a chain of evidence to

be used against him. The respondent then claims

that since no warrants were found that there was no

reasonable possibility that the petitioner’s name

could be used against him. This implies that the

petitioner had to prove ahead of time that he needed

the Fifth Amendment, obviously contravening its

intended purpose. The Supreme Court declared that:

“The privilege afforded not only extends to

answers that would in themselves support

conviction under a federal criminal statute but

likewise embraces those which would furnish

a link in a chain of evidence needed to

prosecute the claimant for a federal

crime...../he claimant 1s not required to prove

the precise danger since by so doing he would

be forced to disclose those very facts from

which_the privilege protects. Hoffman v U.S

(CF 341 U.S. 479,486.71 CT. 814,818.95 L Ed

lIIsd

‘The (5° amendment privilege is not hmuited to

testimony, as ordinarily understood, but

extends to every means by which one may be

compelled to produce information which_may

incriminate.’ Boyd vs. U.S. Supra; Brown v

Walker, 161, U.S. 591.

9

According to the logic put forth by the

respondent, and lower courts, one only has Fifth

Amendment protection if there is absolute proof

beyond a shadow of a doubt, that there is something

incriminating with which to need its protection.

Which in turn would imply that the person bring

forth the incriminating evidence to gain the

protection of the Fifth Amendment. If this is the case

then an obstruction statue can be used to prosecute a

murder suspect for not confessing, and the original

intent of the Fifth Amendment is null and void.

3. THIS CASE PRESENTS AN OPPORTUNITY

TO BETTER UNDERSTAND MIRANDA

RIGHTS

Respondent also claims that Petitioner

complicated the stop and turned it into an eventual

arrest by refusing to give his name, knowing that his

identity would be ascertained during the booking

process (p22 RB). Here again Respondent is

assuming facts not in evidence, assuming that

Petitioner knew he would be arrested. Petitioner

assumed his refusal to give his name was legal under

his Miranda right to remain silent. Respondent also

states over and over that this was a lawful request,

and that the refusal to answer is an obstruction.

Petitioner has agreed over and over that the

policeman can ask him questions, however Petitioner

has always maintained he has no corresponding duty

to answer them, just as someone guilty of a crime

has no duty to confess, even though this obstructs

the police that are investigating that person

LO

“The Officer may ask the terry detainee a

moderate number of questions to determine

his identity and to try to obtain information

confirming or dispelling the officer's

suspicions. But the detainee is not obliged to

respond” Berkemer v. McCarty, 468 U.S. 420,

439 (1984).

“Of course, the person stopped is not obliged to

answer, answers may not be compelled and

refusal furnishes no basis for arrest, although

it may alert the officer to the need for

continued observation.” Terry v. Ohio, 394

U.S. at 34

Petitioner does not concede that this was just

a Terry Stop, as being placed facedown in the dirt,

handcuffed, and not being free to leave easily meets

the definition of an arrest. Petitioner, though not

interrogated in an interrogation cell was still asked

questions for the purpose of gaining information to

be used against him. ‘This court left the issues in

this case unanswered in Hiibel, this case presents an

opportunity to answer them

CONCLUSION

This petition presents an opportunity in which

to better understand Miranda rights, ‘lerry stops and

further define the First Fifth, Sixth and Fourteenth

Amendments of the U.S. Constitution. This case is

not sul generis as Respondent claims, as similar

situations occur everyday around this nation. The

opinion below is clearly erroneous as a matter of law,

fails to comport with reason, logic and common

sense, conflicts with the 9t Federal Circuit, intent of

Montana lawmakers, and most importantly previous

case law of this Court. So as to protect the

Constitution and laws of the United States, and

prevent a slide down the slippery slope to a police

state, Petitioner prays that this Court issue a writ of

certiorari and vacate the judgment of the Montana

State Supreme Court.

Respectfully submitted,

Josh A. Allen pro se

P.O. Box 1621

Havre, MT 59501

(406) 265-2614

(406) 399-0326