“Loyalty to country ALWAYS. Loyalty to government, when it deserves it.”
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~Theodore Roosevelt, 26th President of The United States of America EARTH
STORYLINE: Within the next few days the following motion will be submitted to the Denver Municipal Court and the Colorado Supreme Court as I continue to fight and protect our constitutional freedoms…
The City and County of Denver
BRAMSCHER, William R
Municipal Case Number: 14GS000200
District Court Case Number: 2014CV030627
Colorado Supreme Court Case Number: 2014SA318
***Motion to Dismiss for Want of Due Prosecution Part I***
TABLE OF CONTENTS
I. STATEMENT OF FACTS
II. STATEMENT OF CASE
III. STANDARD OF REVIEW
- Substantive Due Process
- Case or Controversy
TABLE OF AUTHORITIES
People v. Donachy, 196 Colo. 289, 292-93, 586 P.2d 14, 16-17 (1978)
People v. Broncucia, 189 Colo. 334, 336-37, 540 P.2d 1101, 1103 (1975)
People v. Fueston I, 717 P.2d at 982-82 (Colo. App. 1985)
People v. Westendorf, 37 Colo. App. 111, 112-03, 542 P.2d 1300, 1301 (1975)
Grimsley v United States (1931, CA5 FLA) 50 F2d 509
People v. Joseph, 920 P2d 850 (Colo. APP 1995)
People v. Steiner, 640 P2d 250 (05/20/81)
Asgill v. United States (1932, CA4 Va) 60 F2d 780)
Spence v Dowd (194, CA7 IND) 145 F2d 451
People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 (1978)
People v. Moreno, 176 Colo. 488, 496, 491 P.2d 575, 580 (1971)
Gallegos v. People, 166 Colo. 409, 413, 444 P.2d 267, 269 (1968)
People v. Melillo, 25 P3d 769, 777 (Colo. 2001)
People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980)
Fourth Amendment, USC
Sixth Amendment, USC
Fifth Amendment, USC
Fourteenth Amendment, USC
Colo. R Crim. P 12(b)(2)
I. STATEMENT OF FACTS
The false allegations in this case are/were that on December 23, 2013, Defendant William Robert “Billy bob” Bramscher was terminated by his employer and that after leaving the building, Bramscher repeatedly called River Rock Dispensary harassing the employees by using foul language and threatening them. The General Sessions Summons and Complaint was issued and signed by Denver Police Detective D. Diaz Deleon #P04405 who is currently on paid leave as reported by The Denver Channel.
On February 11, 2014, Judge Johnny C. Barajas DISMISSED 14GS000200 ruling, “Okay, well it does say it has to be a brief description, so that suggests to me that there has to be more than just the boxes being checked off. So I am going to go ahead and dismiss it without prejudice” (pg. 14, 5-9) TRANSCRIPT.
II. STATEMENT OF CASE
Defendant Bramscher was charged with violating the Denver Revised Municipal Code, Section 38-91 (Disturbance by Use of Telephone) and 38-92(a) (Threats). The Complaint 14GS000200 is defective in form and fatally fails to invoke the jurisdiction of this court absent the required “probable cause” statement and “victim’s full name” as required in the Fourth Amendment. See also Crim. P. 203(a); Crim. P. 204(b)(4).
III. STANDARD OF REVIEW
Citing People v. Williams, 961 P2d 533 (Colo. App. 1997), “A substantive defect in an information may be raised at any time during the proceedings.”
Colorado has followed the modern trend of testing the sufficiency of the information based upon the fundamental objectives the information serves rather than technical pleading requirements of the common law. See Robert J. Dieter, Colorado Criminal Practice and Procedure 2.10, at 114 (1996). This functional approach mirrors the efforts of the federal criminal code and follows the lead of the Supreme Court. See Hamling v. United States, 418 U.S. 87, 117 (1974) (noting that a charging document is sufficient if it, “first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense”); Fed. R. Crim. P. 7(c) (liberalizing the technical common law pleading requirements).
We are aware that, in some cases, lack of specificity has been held to constitute a fatal defect in the charging document. But we view those cases as distinguishable because, in each case, the defect would have precluded the preparation of a meaningful defense. See, e.g., People v. Tucker, 631 P.2d 162, 164 (Colo. 1981) (indictment should have been dismissed as vague because it did not allege how the embezzlement was accomplished); People v. Donachy, 196 Colo. 289, 292-93, 586 P.2d 14, 16-17 (1978) (indictment was fatally defective because it failed to identify the money or property allegedly converted and failed to indicate how the money or property was used); People v. Broncucia, 189 Colo. 334, 336-37, 540 P.2d 1101, 1103 (1975) (perjury charge was fatally defective because it “failed to set forth with sufficient specificity the falsity of the defendant’s statements so as to enable him to prepare his defense”); People v. Fueston I, 717 P.2d at 982-82 (Colo. App. 1985) (information was fatally defective because it “failed to allege which of the many statements contained in the defendant’s 1982 liquor license renewal application were false”); People v. Westendorf, 37 Colo. App. 111, 112-03, 542 P.2d 1300, 1301 (1975) (indictment was fatally defective because it “contains no statements which are alleged to have been perjurious”).
The constitutional right to be informed of the nature and cause of an accusation, generally, is rooted in the United States Constitutions Sixth Amendment. The right to be informed of the nature and cause of the accusation is substantial and cannot be denied (quoting Grimsley v. United States (1931, CA5 FLA) 50 F2d 509) and the information must answer the questions of who, what, where, and how (quoting People v Joseph, 920 P2d 850 (Colo. App. 1995)), see also People v. Tucker, 631 P2d 162 (07/13/81); People v Steiner, 640 P2d 250, (05/20/81)). A defendant charged with a crime must be brought into court on a complaint, information, or indictment made or found according to the requirements of the law (quoting Bustamante v. People, 136 Colo. 362, 317 P2d 885 (1957)) and there can be no conviction or punishment for a crime without formal and sufficient accusation (quoting Spence v. Dowd (194, CA7 IND) 145 F2d 451).
Quoting Cornell University Law School, “The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be ‘deprived of life, liberty or property without due process of law.’ The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (‘legality’) and provide fair procedures.”
An information is a “written statement, signed by the prosecutor and filed in the court having jurisdiction over the offense charged, alleging that a person committed the criminal offense described therein.” Crim. P. 7(b)(1). Section 16-5-202(1), C.R.S. (2013), sets forth the requisites of an information:
The information is sufficient if it can be understood therefrom:
That it is presented by the person authorized by law to prosecute the offense;
That the defendant is named therein or described as a person whose name is unknown to the informant;
That the offense was committed within the jurisdiction of the court or is triable therein;
That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction.
Rule 7(b)(2) of the Colorado Rules of Criminal Procedure mirrors section 16-5-202(1). When an information satisfies each of these requirements, it invokes jurisdiction of the court. An information serves two vital interests of a constitutional dimension: (1) it provides the defendant with notice of the offense charged, as well as the factual circumstances surrounding the offense so that the defendant can adequately defend him or herself; and (2) it protects the defendant from further prosecution for the same offense. See Cervantes v. People, 715 P.2d 783, 785 (Colo. 1986); People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 (1978).
An information that fails to charge an essential element of an offense is substantively defective. See Cervantes, 715 P.2d at 786; People v. Bowen, 658 P.2d 269, 270 (Colo. 1983). This essential element requirement is satisfied if the language in the charge tracks the statutory language. See People v. Hunter, 666 P.2d 570, 573 (Colo. 1983); People v. Moreno, 176 Colo. 488, 496, 491 P.2d 575, 580 (1971); Gallegos v. People, 166 Colo. 409, 413, 444 F.2d 267, 269 (1968). “It is generally sufficient that the indictment [or information] set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.'” Hamling, 418 U.S. at 117 (quoting United States v. Carll, 105 U.S. 611, 612 (1881]).
Citing People v. Westendorf, 37 Colo App 111, 11/13/75, “An insufficient indictment does not legally charge a crime or subject defendant to the jurisdiction of the court” and an Information is sufficiently particular if it elucidates the elements of a crime, enlightens a defendant as to the nature of the charges against which he must defend and enables him to plead double jeopardy in bar of future prosecutions for the same offense (see United States v. Whiffen, 121 F3d 18, 08/29/97; United States v. Sepulveda, 15 F3d 1161, 1192 (1st Cir 1993).
William Robert Bramscher argues the Summons and Complaint charging Bramscher was constitutionally insufficient whereas Bramscher had the substantive and procedural right to be informed of the nature and cause of accusation as well as the identities of any/all victims and this right cannot be denied. See Grimsley v. United States (1931, CA5 Fla) 50 F2d 509; People v. Joseph, 920 P2d 580 (Colo. App. 1995) in re “The information must answer the questions of ‘who, what, where, how’” and “A defendant charged with a crime must be brought into court on a Complaint and Information made or found according to the requirements of law”. See Crim. P 7(b)(2); C.R.S. 16-5-202(3); Bustamante v. People, 136 Colo. 362, 317 P2d 885 (1997); People v. Melillo, 25 P3d 769, 777 (Colo. 2001) (“requirement that the information identify the essential elements of the crime, Id at 778) and “Constitutional requirements as to [Complaint and Information] cannot be obviated by statue” (Asgill v. United States (1932, CA4 Va) 60 F2d 780).
Placing defendant under the cloud of undetermined charges for an indeterminate and unreasonable period of time is violative of Due Process” (People v. Aragon, 643 P2d 43 (Colo. 1982); “Proper effectuation of the right to be informed of the nature and cause of the charge against on requires an indictment to meet the basic principles of fundamental fairness” (People v. Donachy, 196 Colo 289, 586 P2d14 (1978); “An insufficient indictment does not legally charge a crime or subject Defendant to the jurisdiction of the court” and “Lack of jurisdiction or the failure of the indictment to charge an offense shall be noticed by the court at any time during the preceding” (People v. Westendorf, 542 P.2d 1300 (Colo. App. 1975); see also Colo. R Crim. P 12(b)(2)).
Among the essential elements of what the Court considers a case or controversy is an injured plaintiff. The requirement that a plaintiff show that he or she has suffered “injury in fact” is a key requirement of the Court’s doctrine of standing. (Note: Standing is necessary to establish jurisdiction)
The standing doctrine consists of both constitutionally-derived rules and judicially-created gatekeeping (“prudential”) rules. The Court has found Article III to require that plaintiffs demonstrate injury-in-fact, that the injury in question is fairly traceable to the defendant’s challenged action, and that the injury is one that could be redressed by a favorable decision.
It is an adjudicated fact that the charges fail to identify the particular statement(s) or assertion(s) alleged to be harassing or threatening also failing to identify any alleged victims. See Fueston, 717 P.2d 978 (Fueston I) (to charge the crime of offering a false instrument for recording, the information must identify the statements alleged to be false), aff’d in part and rev’d in part on other grounds, 749 P.2d 952 (Colo. 1988) (Fueston II); cf. Westendorf, 37 Colo. App. 111, 112-03, 542 P.2d 1300, 1301 (1975) (perjury indictment must identify the statements alleged to be false). If complaint fails to charge crime, court acquires no jurisdiction. People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980). See Crim. P. 203(a), Crim. P. 204(b)(4), Fourth Amendment, Fifth Amendment, Sixth Amendment, Fourteenth Amendment, Crim. P. 7(b)(1), Section 16-5-202(1), C.R.S. (2013) Crim. P. 7(b)(2) and Fed. R. Crim. P. 7(c).
For the aforementioned reasons, William Robert “Billy bob” Bramscher, respectfully requests that this Court DISMISS with PREJUDICE 14GS000200.
By: /s/ ~BbB~
William Robert “Billy bob” Bramscher, No. 1