Malicious & Vindictive Prosecution

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One of the most frustrating issues with this case is that the District Attorney’s office continually changed the false charge against me at will and leisure.  The following is a chronological order of how the charge did continually change as three (3) Public Defenders quit my case and I fought for my sanity and life against this bad-faith investigation, malicious prosecution, vindictive prosecution and repeated violations to my civil rights.  The following person’s “under color of state” did actively, maliciously and vindictively participate in my prosecution:

1) Don Quick, former District Attorney Adams County, Colorado                                         (http://www.quickforcolorado.com/)

2) Daniel T Brechbuhl, former Senior Deputy District Attorney

3) Stacy Moore, former Deputy District Attorney

A.   Legal Standard

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.  (see e.g., People v Walker, 180 Colo 84, 504 P2d 1098 (1972) in re “A prosecutors duty is to seek justice, not merely convict”; People v Drake, 841 P2d 364 (Colo App 1992); see also, People v Elliston, 181 Colo 118, 508 P2d 379 (1973) in re “A prosecutor must be careful in his conduct to ensure that the jury tries a case solely on the basis of the facts presented to it.”)

Specifically in the CRPC Rule 3.8 the prosecutor in a criminal case shall (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause (http://www.cobar.org/index.cfm/ID/22193)

A vindictive prosecution – one in which the prosecutor seeks to punish the defendant for exercising a protected statutory and constitutional right – violates a defendants Fifth Amendment right to Due Process (see United States v Jenkins, 537 F3d 1,3 (1st Cir 2008)).  Indeed, courts have long abided the “uncontroversial principle” that “to punish a person because he has done what the law plainly allows him to do is a Due Process violation ‘of the most basic sort’” (see United States v Goodwin, 457 US 368, 372, 102 S Ct 2485, 73 L Ed 2d 74 (1982) quoting Bordenkircher v Hayes, 434 US 357, 363, 98 S Ct 663, 54 L Ed 2d 604 (1978)).  Of course, “The very purpose of instituting criminal proceedings against an individual is to punish; therefore the mere presence of a punitive motivation behind prosecutorial action does not render such action constitutionally volatile” (see United States v Goodwin, 576 F Supp 2d 235, 237 (D.P.R. 2008)).  Thus, a defendant may be penalized for violating the law, but not punished for exercising his rights (see Goodwin, supra, 457 US at 372; United States vs Tobin, 598 F Supp 2d 125, 02/18/2009)).

MOTION FILED Pro Se:  The prosecutions charge in 10CR3690 has been amended, manipulated and transformed and is obviously and clearly inconsistent with the peoples earlier position resulting in an unfair advantage and prejudice to defendant if not estopped.  The defendant hereby invokes the doctrine of Judicial Estoppel in effort to protect the integrity of the judiciary prohibiting the prosecution from deliberately changing positions according to the exigencies of the moment.  See Syayesteh v Cent Bank, 2010 US Dist Lexis 7842 (2010) (quoting Bradford v Wiggins, 516 F3d 1189, 1994 (10 Cir 2008); Shayesteh v Raty 2010 US APP Lexis 25246 (2010); New Hampshire v Maine, 532 US 742, 750-51 121 S Ct 1808, 149 L Ed 2d 968 (2001).

B.  Facts

11/29/2010:  Defendant via the telephone, from Las Vegas, Nevada, filed a formal complaint with the Colorado Supreme Court Attorney Regulation Counsel (ARC), #2010-3798, against Westminster Municipal Magistrate John Stipech.

C.R.S 18-9-111(1)(e) – HARASSMENT/THREAT – Misdemeanor

12/01/2010:  (20802) Maimone, Philip A, WPD (Westminster Police Department, Colorado) CRN 2010:20293 created an “Incident Information” Page 1 of 10 at 11:07.  The “Charges Description” is reported:

Charge Type:  State

Description:  Harassment by phone or computer or damage threat

Statute:  18-9-111(1)(e) – Misdemeanor

12/02/2010:  Sergeant Doug Sgambelluri, WPD (Westminster Police Department, Colorado), author’s an email to the following: Birk, Lee; Cressman, Mike; Carlson, Tim; Jones, Jeff; Beren, Kevin;  Clark, Timothy; Barnhardt, Carol; Wollack, Jim; Pepper Vaughn; Lindberg, Mark.

Subject:  “I have spoken to an Adams County DDA and she is researching the case law.”

12/03/2010: Sergeant Doug Sgambelluri, WPD, author’s an email to the following: Birk, Lee; Cressman, Mike; Carlson, Tim; Jones, Jeff; Beren, Kevin; Clark, Timothy; Barnhardt, Carol; Wollack, Jim; Pepper Vaughn; Lindberg, Mark.

Subject:  “I heard from Adams County DDA Stacey Moore and she believes that this case may be fileable under CRS 18-8-615:  Retaliation Against a Judge (F4).  I’ve assigned Rich Infranca.

C.R.S. 18-8-615(1)(b) – THREAT – Felony

12/23/2010:  (20897) Infranca, Richard, WPD files Affidavit and Application for Arrest Warrant in re WPD CRN 2010-20293.

On page five (5) Infranca stated, “The affiant feels that because [Defendant] THREATENED to “blow up” Westminster Municipal Court Judge John Stipech there is sufficient probable cause to believe that the offense of Retaliation Against a Judge, as that offense is described in C.R.S. 18-8-615(1)(b), was committed and that [Defendant] committed that offense.

**C.R.S. 18-9-615(1)(b) is defined as “An individual commits retaliation against a judge by means of a ‘CREDIBLE THREAT’ (see also “True Threat”) as described in paragraph (a) of this subsection (1) if the individual knowingly makes the credible threat [as defined in section 18-3-602(2)(b) “Stalking”].

  1. Directly to the judge
  2. To another person

a)   If the individual intended that the communication would be relayed to the judge;

b)   If the other person is required by statute or ethical rule to report the communication

C.R.S. 18-3-602(2)(b) “Credible Threat” means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person’s safety or the safety of his or her immediate family or of someone with whom that person has or has had continuing relationship.  The threat may not be directly expressed if the totality of the conduct would cause a reasonable person such fear.”

C.R.S. 18-18-615 (Does NOT exist)

12/23/2010:  County Court, Adams County, Colorado Case No. 10CR3690 reads “A complaint in writing, under oath, has been made, and it appears that there are reasonable grounds for believing that on November, 29, 2010, in Adams County and State of Colorado, one [Defendant] did then and there:

“commit the crime of Retaliation Against a Judge, as that crime is defined by C.R.S. 18-18-615, and as further set forth in the complaint attached hereto and made part hereof.

C.R.S 18-8-615 – Act of HARASSMENT – Felony

12/23/2010:  County Court, Adams County, Colorado Case No. 10CR3690, Complaint and Information reads:

Don Quick, District Attorney for the Seventeenth Judicial District, of the State of Colorado, in the name and by the authority of the People of the State of Colorado, informs the court of the following offenses committed, or triable, in the county of Adams:

COUNT 1 – Retaliation Against A Judge (F4)

On or about November 29, 2010, [Defendant] unlawfully, feloniously, and knowingly**, as retaliation or retribution against John Stipech, a judge*** who has served or is serving in a legal matter assigned to the judge involving the defendant or a person on whose behalf the defendant is acting, committed an act of harassment**** against or upon John Stipech, the judge; in violation of section 18-8-615, C.R.S.

**Both the terms “Retribution” and “Retaliation” by definition require SPECIFIC INTENTIONAL conduct.  See 18-1-503(4); 18-1-501(5); citing Adams County District Court No 02CR3167, People v McIntier, 134 P3d 467 (Colo App 2005); Supreme Court of Colorado No 05SC203 People v Manzo, 10/02/06; People v Hickman, 988 P2d 628, 644-45 (Colo 1999); see also United States v Houlihan, 937 F Supp 75,76 (D Mass 1996) in re “intent to retaliate” in 18 USCS 1513 requires proof either of “sole or abiding purpose” or “purpose mixed in with other purposes”); see also Welhsler, The Challenge of a Model Penal Code, 65 Harv L Rev 1097 (1952).

***John Anthony Stipech is NOT a Judge. In his public capacity, John Stipech is an attorney appointed as an officer of a municipality; albeit he has many duties involving the enforcement of law (see Colorado Court Rules for Magistrates, Chapter 35 C.R.M. 3, Rule 3. Definitions (a) “Magistrate: Any person other than a judge authorized by statute or by these rules to enter orders or judgments in judicial proceedings.”)

****Whereas the phrase “ACT OF HARASSMENT” is unconstitutionally vague and overbroad failing to charge defendant with a crime (see People v Hickman, 988 P2d 628, 11/9/1999 in re “that the phrase ‘act of harassment’ in the statute [CRS 18-8-706] is unconstitutionally over-broad and strike it from the statute,” see Id at 643)

12/23/2010:  Sergeant Doug Sgambelluri, WPD, author’s an email to the following:  Birk Lee; Cressman, Mike; Carlson, Tim; PD Patrol; Jones, Jeff; Clark, Timothy; Beren, Kevin; Infranca, Richard; Barnhardt, Carol; Wollack, Jim

Subject:  “Billy Bob”

“Rich Infranca just called me from the Court House.  He filed the case against [Defendant] and walked the warrant through.  The standard bond for this F-4 felony was $5,000.00.  The judge deviated the bond to $75,000[.]  The warrant should be entered sometime this evening.  Next, we have to find out where “Billy Bob” is spending his holidays.”

NOTE:  By the judge “deviating” from the standard bond this violated the equal protection clause as guaranteed by the Fourteenth Amendment United States Federal Constitution.

12/29/2010:  Sergeant Doug Sgambelluri, WPD, author’s an email to the following:  Barnhardt, Carol

Subject:  RE:  “Billy Bob”

“Hi Carol,

The felony charge filed was “Retaliation Against a Judge.”  It does [not] get used too much, but the DA’s office accepted it.”

01/04/2011:  I was in Las Vegas, Nevada, I was proactively sought by LVPD and sum six (6) undercover officers arrested me at my weekly rental in the morning.  The arresting officer made the statement, “I do not know who you pissed-off but you pissed somebody off big-time.”

01/11/2011:  John Anthony Stipech completed a victim impact statement reporting the impact of [Defendants] “Behavior, comments, THREATS, etc. have a PROFESSIONAL impact versus a Personal impact on my staff and other city employees.  Votel has harassed, annoyed, disrupted, put in fear and upset several of the city and court staff.”

NOTE:  If there was no “Personal Impact” their was no crime (see conclusion)

In addition to Stipech’s limited statement, “Information from the court administrator” Carol J Barnhardt, is included although she was never listed as a victim and irrelevant to the single act conduct in question in this case as set forth in the complaint & information filed against the defendant, Barnhardt complains “Starting November of 2009 thru December of 2010, [Defendant] sent numerous emails to the City’s Mayor, City Manager Staff and the Municipal Court Administrator, which were very disruptive, annoying, harassing, and concerning.”  Barnhardt completes her slanderous and liable rant requesting “That a protection order be put in place to restrain [Defendant] from contacting in any way (email, phone calls, etc) ALL CITY EMPLOYEES.”

06/01/2011:  Defendant via the telephone filed a second formal complaint with the Colorado Supreme Court Attorney Regulation Counsel (ARC), #2011-1728, against Westminster Municipal Judge John Anthony Stipech.

Matthew A. Samuelson, Assistant Regulation Counsel, responds in part, “Specifically, you allege that the criminal charge was filed against you in retaliation for the fact that you filed a request for investigation with this office in 2010 against Judge Stipech asserting that he violated your constitutional rights.”

06/24/2011:  Cathlin M Matson, No 39320 – Public Defender “Motion to Withdraw Certificate of Service”

C.R.S. 18-8-615 via 18-9-111(1)(e) – THREAT

07/05/2011:  Transcript of Preliminary Hearing and Daniel T. Brechbuhl, Senior Deputy District Attorney makes the following statements during the course of the preceding:

1)   “Your…  Your Honor, I would just state that in terms of the first argument from Defense as to the harassment and it is 18-9-111 subsection 1-E is specifically on point because it says if…if a THREAT is made via telephone and that’s EXACTLY WHAT HAPPENED HERE.  So I…I’d ask the Court based at thi…this point taking the evidence in the light most favorable to People finding that we have met our burden and to bind over the charge.  Thank you.”

08/12/2011:  “COMES NOW, DON QUICK, District Attorney for the Seventeenth Judicial District and County of Adams, State of Colorado, by Daniel T. Brechbuhl, Senior Deputy District Attorney files:

“People’s notice of intent to use Res Gestae Evidence or in the Alternative Evidence of other Transactions under C.R.E. 404(b)”

On page twelve (12) of the motion Brechbuhl testifies to the court the following:

1)   “The evidence is logically relevant to a material fact because it makes it more probable that the defendant intended** the consequences of his actions.”

**Specific Intent vs Knowingly

2)   “Here, establishing that the Defendant was the person who had threatened Judge Stipech is material to proving the charge of Retaliation against a Judge.”

“The Defendant’s weapon is words.  He seeks to destroy those who he feels has wronged him by using his weapon of choice to threaten people with his goal of getting people fired from their jobs.”

NOTE:  The right to criticize public officials (see New York Times Co v Sullivan, 376 US 254, 273, II L Ed 2d 686, 84 S Ct 710 (1964)) and to petition the government for a redress of grievances (see United Mine Workers v Illinois State Bar Ass’n, 389 US 217, 222, 19 L Ed 2d 426, 88 S Ct 353 (1967)) are protected activities.

08/25/11:  Richard A Hernandez, No 30627 – Alternative Defense Counsel “Motion to Withdraw Certificate of Service”

C.R.S 18-8-615 – ACT OF HARASSMENT

10/13/2011:  Fran E Simonet, #32649 filed Motion to Dismiss Based Upon Lack of Jurisdiction and Lack of Specifity in Complaint and Information:

“[Defendant], by and through his attorney, Fran E. Simonet, hereby moves this Court for an Order dismissing the above captioned case for lack of jurisdiction as well as lack of specifity in the complaint and information.  As grounds for this specific request the following is stated:

  1. [Defendant] is currently charged with one count of Retaliation Against a Judge pursuant to C.R.S. 18-8-615.  The Complaint and information does not specify which section of the statute the prosecution believes [Defendant] violated and without this additional information [Defendant] cannot effectively prepare his defense.  See People v. William, 1999, 984, P2d 56, People v Moore, 1980, 615 P2d 726, 200 Colo 481; People v Chavez, 1986, 730 P2d 321; People v Gnout, 1973, 517 P2d 394, 183 Colo 366; People v Flanders, 1973, 516 P2d 418, 183 Colo 268; People v Joseph, App 1995, 920 P2d 850.

Additionally, it is uncontroverted that [Defendant] was not within the state of Colorado when this act is alleged to have occurred.  Therefore, the Court has no jurisdiction over him and the case should be dismissed.”

C.R.S. 18-8-615 via 18-9-111(1)(e),(3) – ACT OF HARASSMENT

10/21/2011: Transcript of Motions Hearing held by Chief Judge Vincent Phelps, and the following dialogue takes place:

Mr Brechbuhl:  “In reviewing counsel’s motion [in re specifity], she – I mean, the statute that we have here is 18-8-615.  The retaliation with the Judge.  And as part of that, it indicates that if the act of harassment refers back to 18-9-111(1) – and in terms of that statute, subsection (3) states that – and this is an 18-9-111.  Subsection (3) says that if an act prohibited by paragraph (e) of the harassment statute – which is what happened here in terms of the telephone call, because what’s alleged is that [Defendant] called the City of Westminster and made a – a THREAT to blow up the courthouse, the judge, Judge Stipech, S-t-i-p-e-c-h, and the Probation department.”  Page 4, Lines 13-24

Mr Brechbuhl:  “And so the information that we have here is that the [alleged] phone call did originate in Las Vegas, but the call was taken in the City of Westminster, Adams County, Colorado.”  Page 5, Lines 2-5

Ms Simonet:  “Your Honor, and I – I don’t really understand the – jurisdictional or venue position of the District Attorney’s Office.  However, it – the other issue that I discussed in my motion briefly and referred the Court to a whole string of cases, basically is that we’re entitled to notice as to what the – actual complaint and information is alleging, and the section of the statute that applies because, obviously, [Defendant] is entitled to notice of that so that he can prepare a defense in this case.  And so I think, at minimum, the people have to elect which section of the statute they’re proceeding under, and – and I don’t believe that that’s been done in comport with the statute.  So that is another reason why we filed this motion to dismiss, because I don’t believe that proper notice has been given so that we can adequately prepare a defense in this case.”  Page 5, Lines 11-25

Mr Brechbuhl:  “It’s 18-9-111(1).”  Page 5, Line 7

Chief Judge Phelps:  “I think they’re proceeding under 18-9-111(1)(e).”  Page 5, Lines 18-19

Chief Judge Phelps:  “Correct me if I’m wrong, Mr. Brechbuhl.”  Page 5, Line 22

Mr Brechbuhl:  “No, that’s correct.”  Page 5, Line 22

Ms Simonet:  “And if that’s the theory they’re proceeding under, then I would like an order from the Court saying that they can’t change their mind.”  Page 7, Lines 14-16

Chief Judge Phelps:  Well, based upon the – based upon the information that I’ve seen in the file, I think that’s the only basis they can proceed under, on 18-9-111; and the only basis available, I believe is, indeed, (1)(e) and subparagraph (3).  That’s the only thing I can see here that — that would possibly fit.  So I can’t imagine that they would try to — to move it to another section here, because it — they — I – I – can’t imagine that the – that the evidence is gonna be under anything other than those, based upon what I’ve reviewed in the file…”  Page 7-8, Lines 24-8

Ms Simonet:  “It’s just the way this complaint and information was filed with the Court is, in my opinion, is unusual.  And I handle a lot of cases here in Adams County, but it doesn’t specifically state which section of the statute applies.”  Page 8, Lines 12-17

Mr Brechbuhl:  “Counsel stated that there’s some requirement of the Court to do some analysis as to the arrest warrant, as to the validity of a credible threat.  Well, nowhere in the statute or anything that was filed, in the information under 18-8-615 – WE’RE NOT ALLEGING A CREDIBLE THREAT.  What we’re alleging is an ACT OF HARASSMENT.  So when counsel says that the Court has to analyze the potential of a credible threat, that’s not even a part of what we’re doing here.  I – I just wanted to clarify that.”  Page 17, Lines 6-15

NOTE:  Infranca on the arrest warrant, under color of state and oath, makes the statement [Defendant] committed 18-8-615(1)(b) which is defined using “credible threat”

Chief Judge Phelps:  “No, I understand.”  Page 17, Line 16

Chief Judge Phelps:  “I think what – I think what they have to prove is just what it says in 18-8-615(1)(a) and sub Roman I, II, III, IV – IV, and then subparagraph (b) talks about CREDIBLE THREATS, which does not apply.”  Page 18, Lines 21-24

Ms Simonet:  “And, Your Honor, I understand that today, now that the people have informed me of the election that they’re talking with regards to the statute.  But when I was preparing this motion, I didn’t know because  –“  Page 17-18, Lines 25-4

Ms Simonet:  “And, your Honor, then my argument would be at that point, because now they elected this particular subsection, is that they would still — in the affidavit, there would have to be information provided to the judicial officer that indicated that Mr. Votel communicated in a manner which intended to harass or threaten bodily injury or property damage.  And – and I don’t believe that that was adequately done in the affidavit.”  Page 20, Lines 1-8

Chief Judge Phelps:  “…because in the harassment statute it doesn’t talk about with the intent to act on; it simply says:  Making a THREAT or statement with the intent to harass, annoy or alarm.”  Page 21, Lines 19-20

11/07/2011:  Fran E Simonet, No 32649 – Alternative Defense Counsel “Motion to Withdraw Certificate of Service”

11/16/2011:  Defendant is forced to proceed as own attorney (pro se)

01/30/2012:  Trial started ending on February 6, 2012 and as my own lawyer (pro se) I was found “NOT GUILTY” by a jury of my peers. At this time, I was charged with C.R.S. 18-8-615 via 18-9-111(1)(e) and the mens rea was changed to “Specific Intent” instead of “Knowing” as incorrectly alleged for over thirteen (13) months…

In my jury trial, the Defendant’s Theory of Defense, provided to the Jury:

“It is the Defendant’s theory of defense that the prosecution of this case was based upon retaliation by the City of Westminster. The Defendant contends that he was exercising his First Amendment rights of free speech and to redress grievances he had with the City of Westminster and that this prosecution is based on bad faith investigation, legal harassment and retaliation against him Defendant for exercising his First Amendment Rights.”

C. Conclusion

There is no question that speech critical of the exercise of the state’s power lies at the very center of the First Amendment and this case involves punishment of pure speech in the political forum.  (see e.g., Butterworth v Smith, 494 US 624, 632, 108 L Ed 2d 572, 110 S Ct 1376 (1990) in re the dissemination of information relating to alleged governmental misconduct is “Speech which has traditionally been recognized as lying at the core of the First Amendment”;  Sheppard v Maxwell, 384 US 333, 350, 16 L Ed 2d 600, 86 S Ct 1507 (1966) in re “The Press… guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial process to extensive public scrutiny and criticism”; Nebraska Press Assn v Stuart, 427 US 539, 606, 49 L Ed 2d 683, 96 S Ct 2791 (1976) in re “Public awareness and criticism have even greater importance where, as  here, they concern allegations of police corruption”;  Whitney v California, 274 US 357, 378-379, 71 L Ed 1095, 47 S Ct 641 (1927) in re “Whenever the fundamental rights of free speech… are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restrictions interposed by the legislature’;  Landmark Communications, Inc v Virginia, 435 US, 56 L Ed 2d 1, 98 S Ct 1535 (1978) in re “A major purpose of the First Amendment protects the free discussion of governmental affairs”).

The right of an American citizen to criticize public officials and policies and to advocate peacefully ideas for change is “The central meaning of the First Amendment” (see New York Times v Sullivan, 376 US 254, 273, 84 S Ct 710, 11 L Ed 2d 686 (1964); see e.g., Weise v Casper, 593 F3d 1163, 1175 (10th Cir 2010) in re Halloway, J., dissenting, “Official reprisal for protected speech ‘offends the constitution because it threatens to inhibit exercise of the protected right,’ and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions… for speaking out”;  Members of City Council of City of Los Angeles v Taxpayers for Vincent, 466 US 789, 804, 104 S Ct 2118, 80 L Ed 2d 772 (1984) in re “The general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others”; Mesa v White, 197 F3d 1041 (10th Cir 1999) in re “Public comment period of public meeting”;  Kingsley Int’l Pictures Corp v Regents of the Univ of the State of N.Y., 360 US 684, 79 S Ct 1362, 3 L Ed 2d 1512 (1959) in re “Government cannot engage in viewpoint discrimination”; Glasson v City of Louisville, 518 F2d 899 (6th Cir 1975) in re “Protesting in public forum”; Hope v Pelzer, 536 US 730, 740 122 S Ct 2508, 153 L Ed 2d 666 (2002) in re “[City of Westminster/Westminster Police Department/Adams County District Attorney’s/Public Defenders/Alternative Defense Counsel/Judges/Westminster Municipal Court] violated [Defendants] rights on a pretext so flimsy that the violation was obvious”).

~BbB~

Billy bob Bramscher

http://www.facebook.com/BlueDakini

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