Claim Of Error

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS,

URBANA DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) Case no: CR 06-20023 ) ) vs. ) ) CLAIM OF ERROR ) AND RECORD OF OBJECTIONS KENTON W. TYLMAN, ) BRENT WINTERS, ) DEBRA J. HILLS ) ) Defendants. )

CLAIM OF ERROR AND RECORD OF OBJECTIONS —Pursuant to Rule 51 (b) and 52 (b)

Of the Federal Rules of Criminal Procedure—

COMES NOW, Brent Winters (“Winters”), in respect of this Honorable Court and

makes this Claim of Error and Record of Objections, and grounds for making

them, regarding the Hearing on 23 August 2006 concerning the above captioned

case (the “Hearing”) before the Honorable Chief Judge Michael P. McCuskey (the

“Honorable Judge”) and states:

1. This Claim of Error and Record of Objection (“Record”) is made in the

interest of the integrity of this Court and is necessary to preserve—among other

rightsWinters’ right to be free from vindictive and selective prosecution; his

rights to due process of law under the Fifth Amendment; his civil and

fundamental rights to a speedy trial under the Sixth Amendment and the Speedy

Trial Act; his rights to freedom from unlawful searches and seizures under the

E-FILED Thursday, 21 September, 2006 04:25:25 PM

Clerk, U.S. District Court, ILCD

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Fourth Amendment; his right to petition the government1 and the Court for

redress of grievances on behalf of his clients and now for himself under the First

Amendment; his duty, right, and responsibility to exercise independent

judgment, advise his clients based on his independent judgment and refer them

to competent counsel;2 his rights to public pretrial proceedings and a public trial

under the Sixth Amendment; and his rights to privacy.

2. Winters has not and does not waive any of his rights and asserts that he

has been unjustifiably, vindictively and selectively prosecuted; and irreparably

prejudiced by the Court’s and the prosecutor’s failure to disclose judicial and

prosecutorial bias and prejudice resulting in Winters’ indictment and irreparable,

plain error violations of the law and Winters’ fundamental rights.

3. Winters makes this Record of Objections with all respect due to this

Honorable Court and under his duty, as an officer of this Court, to be candid

concerning his good faith position and understanding.

4. Winters’ objections are motivated by his contentions, founded upon the

record, that the Honorable Judge’s insistence for and persistent prosecution of

Winters is vindictive and, therefore, selective. Winters, further, contends that

Assistant U.S. Attorney Frooman (“Frooman”) and her instructing IRS agent

1 See infra app. 1, for the background record concerning vindictive and selective

prosecution aimed at chilling of Winters’ willingness to petition the government in exercise of his sworn duty in to assert his clients’ rights, by attempting to instill fear of retaliatory prosecution against Winters’ clients and against Winters.

2 During the past six years, clients targeted civilly and criminally by the IRS have pressed Winters to represent them. In some cases Winters, acknowledging his inability to provide the best civil or criminal tax counsel tax counsel, has referred these clients to counsel competent in such matters, as is his duty under the Code of Professional Responsibility. Performing this duty, however, now forms part of Winters’ indictment. See Superceding Indictment of 3 August 2006, para. 32. Winters objects to this prosecutorial practice as frivolous.

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Bernard Coleman (“Coleman”) have knowingly, willfully, and impermissibly

exploited the Honorable Judge’s bias by unlawfully concealing it. Winters makes

this Record of Objections in light of the evidentiary rule that bias is always

relevant.

BACKGROUND

5. Over six years ago, on 31 March 2000, seeds of Winters’ vindictive

prosecution likely sprouted with his fortuitous on-the-spot legal representation in

defense of the rights of Kenton Tylman (“Tylman”), James McNutt (“McNutt”),

Harry Woolen (“Woolen”), and Debra Hills (“Hills”) in the presence of eleven

armed, bullet-proofed jacketed, and insubordinate federal agents over which

supervising agent Coleman could exercise only a limited supervision. See In Re

Matter of the Search of 913 17th Street, Charleston, Illinois 245 F. 3d 978

(argued 13 February 2001; decided 5 April 2001).

4. On 15 May 2006 Winters was initially arraigned. On 31 May 2006, in

violation of Winters’ due process rights, the Honorable Judge denied Winters’

modest request for a bill of particulars (see Winters’ Motion for Bill of Particulars

of 14 May 2006, dkt. # 11) stating for his reason that discovery would be

comprehensive. The Honorable Judge later required filing of pre-trial motions

while Frooman continued to withhold all discovery.3

5. On 11 August 2006, Winters filed a motion to dismiss for—among other

reasons—vindictive and selective prosecution. See dkt. # 47.

3 Due to the confusion and delay caused by the Court’s and Frooman’s failure to disclose bias

and the Court’s unexpected dismissal of Debra Hill’s counsel, on 7 August 2006, Winters filed a Request for Clarification of filing dates for pretrial motions to which the Honorable Judge did not respond. As of 16 September 2006 Frooman has provided no discovery. See dkt. # 42.

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6. On 17 August 2006, Frooman filed her Informational Notice admitting

that the Honorable Judge Michel P. McCuskey initiated Winters’ prosecution

with the United State’s Attorney’s office; and that United States Attorneys’ Jan

Paul Miller (“Miller”) and Assistant U.S. Attorney Frooman reported back to the

Honorable Judge, upon his demand, concerning the progress of their

investigation and prosecution of Winters. See dkt. # 59.

7. On 18 August 2006, the Honorable Judge recused himself from the instant

case following Frooman’s admissions of judicial bias and her knowledge of that

bias by her Informational Notice and by emerging appearances of judicial and

prosecutorial collusion and misconduct reaching back to 31 March 2000 with an

unwarranted search (the “Search”) of Winters’ office, his client’s files, papers,

effects, and documents, and seizure of these.

8. On 23 August 2006, due to unnecessary delay caused by the Court’s and

Frooman’s failure to disclose bias and the Honorable Judge’s belated recusal, the

Court continued Winters’ trial on its own motion, thereby continuing violations

of Winters’ rights under the Speedy Trial Act.

9. The record further indicates that vindictive animus toward Winters has

overtaken public defender John Taylor (“Taylor”), former United States Attorney

Jan Paul Miller, Assistant U. S. Attorney Hilary Frooman, her instructing agent

Bernard Coleman (“Coleman”), and other government attorneys, agents,

supervisors, and auditors known and unknown to Winters.

10. During the Hearing, the Honorable Judge affirmed that he moved Miller

and Frooman to investigate Winters. Frooman obeyed and knowingly, selectively,

and vindictively concealed and took advantage of the Honorable Judges’ bias

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toward Winters.4

11. In her Informational Notice of 17 August 2006, Frooman confesses her

response to the insistence of the Honorable Judge for an updated “report,”5

concerning the progress of the Justice Department’s investigation of Winters,

which intensified upon the Honorable Judge’s insistence.6

12. By her Informational Notice Frooman further confesses that the U.S.

Attorney’s office found no criminal behavior of Winters to report to the

Honorable Judge. This admission would necessarily include the operative facts of

the present indictment against Winters because at the time of Frooman’s report

to the Honorable Judge, the government had gathered the evidence purportedly

relied upon for its prosecution of Winters.

13. During Winters’ reluctant but necessary duty to represent tax clients

civilly and criminally over the past six years before the IRS and before the Courts,

Winters discerned a growing determination among Frooman, Coleman, and

other IRS agents to retaliate for the exercise of fundamental rights by exacting

retribution against his clients and him.

4 On 0r about 2 August 2004, in an attempt to intimidate Winters, Frooman’s

instructing IRS agent, Coleman, stated to Winters’ attorney at that time, Donald “Mac” MacPherson, that Winters better cooperate because once indicted Winters will have to face Judge McCuskey and, Coleman continued, Judge McCuskey does not like Winters and thinks he is a liar.

5 See Frooman’s Informational Notice filed 17 August 2006. 6 Upon Winters’ advice to Patridge to invoke his right to remain silent under the Fifth

Amendment—and Patridge’s acting on Winters’ advice—the U.S. Attorney’s office stepped up their resolve to indict Winters, Frooman informing Winters at a meeting with he and Patridge at the Unbana Federal Courthouse in that with respect to him, “things had changed.” On 13 February 2003 while Patridge and Winters were in conference with Frooman and Coleman a few minutes prior to Winters appearing on behalf of Patridge before the then Chief Judge of the Central Illinois Federal District Court, the Honorable Judge McDade, Frooman firmly assured Winters: “Your client has no constitutional rights.”

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14. Winters, although disappointed in the willfully irregular habits of

Frooman and Coleman and other IRS agents, remained confident in his

representation of his clients and cooperative with the system recognizing two

things: that prosecutors and law enforcement officials often fall prey to over

zealousness, but the courts should serve as a buffer; and Winters was confident in

the lawfulness of his practice and representation of his clients.

15. Winters, however, is now disappointed to learn that the Honorable

Judge—without justifiable provocation—has, for years, participated in seeking

Winters’ indictment and having obtained it, persisted in sitting in judgment over

Winters’ pretrial proceedings with apparent intent to sit in judgment of Winters’

liberty at trial, thereby undermining Winters’ confidence in the good faith of the

Court and Winters’ perception of justice.

16. Additionally, Winters learned, again to his disappointment, that public

defender Taylor was colluding with prosecutor Frooman to deny the rights of his

clients, Williams and Tylman (and thereby Winters), to a speedy trial by

scheduling William’s and Tylman’s trials to commence on the same day, before

the same judge (the Honorable Judge McCuskey) and, presumably, in the same

courtroom, against the expressed instructions of his client Tylman.7

17. Taylor, when kindly confronted by Tylman, promised that Winters,

Tylman, and Hills were “going down,” and then, only minutes later and in

7 Winters takes notice that federal judges often stack trial dates because experience

demonstrates that defendants will often move for a continuance. In this case, however, Taylor, against Tylman’s express instructions moved for a continuance apparently to assist the Court in alleviating its congestion, to satisfy Frooman, and to maintain both Williams and Tylman as clients. Further, the Court failed to provide the reasons for the continuance as required by 18 U.S.C.A. 3161 (h) (8) (B) i–iv. Congestion of the Court’s schedule is insufficient justification for a continuance under the Speedy Trial Act. See id.

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apparent determination to make good on his promise against Winters (and his

client, Tylman, and Hills), entered open court and pled with the Honorable Judge

to allow him to continue his representation of Tylman. See Affidavit of Kenton

Tylman attached to Pro Se Motion to Remove Counsel of 14 August 2006, dkt. #

56.

18. In addition to these revelations, Winters is further disappointed to learn

from the record that during Winters’ representation of Denny Patridge

(“Patridge”), Frooman and Coleman conspired to alter evidence and corruptly

influence the Grand Jury, undermining Winters’ confidence in the good faith of

the United States Attorney’s office.

19. From Frooman’s conduct in the instant case and during Winters’

representation of his client, Patridge (see United States v. Denny Patridge 04-

20031 [2005]), emerges a pattern of suspect behavior including the filing of false

and frivolous documents with knowledge of their falsity and frivolity, two poorly

pleaded indictments against Winters,8 a continual lulling resulting in failure to

provide discovery in violation of Winters’ fundamental due process rights, and

the altering of evidence before a grand jury.

20. Grand Jury and Trial transcripts establish that Frooman and her

instructing IRS agent, Bernard Coleman,—in order to indict Winters’ client

8 In the federal courts, the Fed. R. Civ. Procedure require that complaints of fraud

be pled with particularity sufficient to enable an adequate and informed defense, i.e., a particular defense. How much more ought particularity be required in criminal actions for fraud where men and women are put in jeopardy of losing their personal liberty. At the outset of this case, Winters requested a modest bill of particulars to Frooman’s poorly pleaded indictment. The Court summarily denied Winters’ request stating that Frooman had assured the Court that discovery would be under an “open policy” and would suffice. See the Court’s Memorandum ruling of 31 May 2006 dkt. #22. Winters objects.

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Patridge—conspired with grand jury witness Larry Phillips of J.K. Harris

Company (“Phillips”) to alter exonerating evidence and did alter it, thereby

influencing with intent to corruptly mislead the Grand Jury.

21. Winters had gathered this evidence and provided it to Frooman and

Coleman in order to exonerate his client, Patridge.9 This exonerating evidence

was a telephone conversation between Phillips and Winters. Winters recorded

Phillips’ statements exonerating Patridge.

22. In addition, Winters has since learned from friends who were forced to

appear before grand juries, that Winters’ prosecutors have maliciously reached

back at least twelve years into his personal past, his family life, his church life, his

professional associations, and his lawful political involvement.

23. Winters has not sought to uncover the wrongs cited above and recounted

below: Winters did not ferret them out. Rather, Frooman, Taylor, and the

Honorable Judge have brought to light their failure to disclose known bias by

express and tacit admissions. Winters has merely watched and considered what

he has observed.

24. In summary of the foregoing Background, Winters’ prosecution has now

festered into confusion and delay with three unexpected and related occurrences:

(1) the Honorable Judge’s belated recusal in the face of Frooman’s unexpected

revelations of known judicial misconduct; (2) Frooman’s admissions by her

9 On 8 August 2006, during a telephone conversation with Frooman—Coleman was present on the speaker phone with Frooman—Winters made demand for required discovery. Frooman refused, stating for her reason that she did not trust Winters and, therefore, needed to protect herself. Winters reminded Frooman and Coleman that during Winters representation of Patridge they did indeed conspire with Phillips to alter evidence and to mislead the Grand Jury, and then did so. Both Frooman and Coleman remained silent and refused to deny.

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Informational Notice that she and Miller took instruction from the Honorable

Judge and cooperated with the Court to investigate Winters without requisite

probable cause, while—at the same time—obliging themselves to report back to

the Honorable Judge respecting Winters’ prosecution; and (3) public defender

Taylor’s unlawful collusion with the Court and the Prosecution to deny Tylman’s

and, therefore Winters’, rights.10

25. Therefore, in consideration of his rights—and in light of the foregoing less-

then-normal events creating more-than-suspect appearances—Winters makes the

following Record of Objections.

OBJECTIONS

26. Winters objects to the Honorable Judge presiding over the Hearing for two

reasons: because the Honorable Judge was without authority to preside, having

recused himself five days before on 18 August 2006; and because the Honorable

Judge bears prejudice against Winters under admission of longstanding bias11

reaching back for an unknown time, but for at least more than four years, and

probably more than six years.12

27. By presiding over the Hearing, entering his negative opinions and

comments concerning Winters into the record, and making rulings, the

Honorable Judge continued violations of Winters’ due process rights.

28. Lacking jurisdiction, the Honorable Judge made impermissible judgments

10 See affidavits of Kenton Tylman and Debra Hills attached to Tylman’s Pro Se Motion to Remove Counsel of 14 August 2007, dkt. #56.

11 See infra app. 2. 12 See id., for background concerning the Honorable Judge’s initiation of and

ongoing involvement in Winters’ indictment and prosecution for more than six years past and for points of authority concerning judges’ bias and prosecutorial acts from the bench.

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of opinion from the Bench concerning Winters; Winters respectfully objects.

“[T]he Supreme Court has made clear that, when the presiding judge is not

impartial, ‘there is a structural defect . . . that defies analysis by ‘harmless error’

standards.” See Harrison v. McBride, 428 F.3d 652, 668 (7th Cir. 2005).

29. Nonetheless, the Honorable Judge conducted the Hearing, devoting more

than one half of the twenty-five minute Hearing to making a record in

justification of two non-judicial acts: his pressing United States Attorney Miller

and Frooman for Winters’ indictment and his failure to timely disclose his

personal bias against Winters, while at the same time entering depreciating

comments into the record concerning Winters.13

30. The Supreme Court continued its finding stating: “Due process may . . . be

offended if a judge uses a proceeding to give vent to personal spleen or respond to

a personal grievance . . . .” Id. quoting Offutt v. United States, 348 U.S. 1114, 75

S.Ct. 11 (1954).

31. “[T]he appearance of justice,” the Supreme Court has repeatedly said, “is

as important as the reality of justice . . . its absence violates due process.

Delvecchio v. Illinois Department of Corrections, 8 F.3d 509, 515 (7th Cir. 1993).

Therefore, mere “[s]uggestions of judicial impropriety always receive our [the

Court’s] highest attention because they undermine respect for the law.” Id. at 514.

Any appearance of bias or negative animus creates an unrebuttable legal

conclusion of bias and violation of due process. With respect to judicial bias,

perception is reality.

13 The Honorable Judge initially scheduled this Hearing to determine Hills’ progress in her search for new counsel.

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32. Because perception of bias is deemed bias, Winters bears no burden to

prove the bias of the Honorable Judge: “To require a criminal defendant to prove

actual bias would insure that no one could ever succeed in showing that their

Fourteenth [or Fifth] Amendment rights have been transgressed by a partial

judge.” Delvecchio v. Illinois Department of Corrections, 8 F.3d 509, 515 (7th

Cir. 1993).

33. Winters further objects because in making extended record in his defense

for his failure to disclose his bias against Winters, the Honorable Judge placed

into the record errors of fact and law.

34. 28 U.S.C. § 455 (a) (1) not only forbids the Honorable Judge from

presiding over any proceeding in this case because “he has a personal bias or

prejudice concerning” Winters, but also because “he has personal knowledge of

disputed evidentiary facts” concerning the government’s case against Winters.

See id.

35. The Honorable Judge has personal knowledge of disputed evidentiary

facts in this case in that his magistrate participated in the issuance of the three

constitutionally insufficient warrants and by his having sat in judgment over the

constitutionality of the Search.14 These alleged warrants remain sealed by the

Honorable Judge’s order.15

36. Winters further objects to the Honorable Judge’s misrepresentation of the

14 See infra app. 3, for a recounting of the suspect issuance, service, and execution

of the warrants that began Frooman’s, Coleman’s, and the Honorable Judge’s acquaintance with Winters.

15 See in addition infra app. 2, concerning background and personal knowledge of the Honorable Judge in the above referenced evidentiary dispute over an unwarranted search of an office and seizure of papers, effects, and items of which Winters continues to hold a proprietary interest for his clients under confidential attorney-client relationship.

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Seventh Circuit Federal Court of Appeals’ (the “Appellate Court”) opinion

concerning the Honorable Judge’s Order of 13 July 2000 In the Matter of the

Search of the Office of Ken Tylman, Worldwide Financial Services, 913 17th

Street, Charleston, Illinois 61920.

37. The Honorable Judge stated in the Hearing on 23 August 2006 that the

Appellate Court ruled on the Appeal from his Order to Suppress the Search

Warrants, affirming his (the Honorable Judge’s) ruling.

38. The Honorable Judge’s comments concerning the Appellate Court’s ruling

are error16 because contrary to the Honorable Judge’s assertion at the Hearing,

the Appellate Court refrained from ruling on the suppression issue and expressly

reserved it for a later time because no indictment had yet been obtained, stating:

Had an indictment been filed, a motion to suppress evidence, pursuant to Rule 12 of the Federal Rules of Criminal Procedure, would be the appropriate vehicle to not only secure the return of seized property, but also to challenge the constitutionality of the search itself.

See In Re Matter of the Search of 913 17th Street, Charleston, Illinois 245 F. 3d

978 (argued 13 February 2001; decided 5 April 2001).

38. The indictment against Winters, however, would not be filed for over six

years after the unwarranted Search. But now, an indictment has been filed, and

according to the Seventh Circuit Court of Appeals, a motion to suppress the

evidence, to secure the return of seized property, and to challenge the

constitutionality of the Search is appropriate and available.

39. However, because the Honorable Judge has sealed these alleged warrants

16 See infra app. 5, for the Appellate Court’s judgment concerning the three

attempted warrants, Coleman’s belated attempt to cure, and a discussion of the effect of entering the premises without authority of a valid warrant and securing the premises while two more warrants were sought.

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any inspection of them remains impossible. See id.17

40. Winters objects to this sealing and the sealing of any other documents in

this case because all such sealings—thus far—are contrary to the Supreme Court’s

finding in In Press Enterprise Co. v. Superior Court, 464 U.S. 501 at 510, 104

S.Ct. at 819 at 824, 78 L.Ed. 2d 629, at 683 (1984), enforcing the Sixth

Amendment right to a public trial by including pretrial proceedings in that

right.18

41. Winters further objects to the Honorable Judge’s assertion at the Hearing

that the Appellate Court affirmed the Honorable Judge’s vitriolic comments in

his Order concerning Winters. See Order of United States District Judge Michael

P. McCuskey of 13 July 2000, In the Matter of the Search of the Office of Ken

Tylman, Worldwide Financial Services, 913 17th Street, Charleston, Illinois

61920, para. 10, Case # 00-U-13, 00-U-14, 00-U-15.

42. The Appellate Court, however, did not affirm the Honorable Judge’s

comments. Rather, the Appellate Court mentioned Winters only once in its

opinion, stating that Winters was an attorney present at the Search. See In Re

Matter of the Search of 913 17th Street, Charleston, Illinois 245 F. 3d 978

(argued 13 February 2001; decided 5 April 2001).

43. In In Re Matter of the Search of 913 17th Street, Charleston, Illinois 245 F.

17 The record reveals that by affidavit of 19 April 2000, Coleman misrepresented to

the Court that he had included with the first warrant a list of items to be seized; Coleman’s sworn testimony states otherwise. The record reveals other inconsistencies and irregularities in the warrants, attachments, affidavits, and accompanying filings.

18 See infra app. 4, for the Supreme Court’s finding that the Sixth Amendment right to a public trial applies to pretrial proceedings. Winters surmises that the fourteen documents sealed in the case of his client, Patridge, could pertain to Winters, and if to Winters, then possibly to the defense of Patridge, Winters’ client. See United States v. Denny Patridge 04-20031 (2005).

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3d 978 (argued 13 February 2001; decided 5 April 2001), Tylman, Woolen,

McNutt, and Hills sought to overturn the Honorable Judge’s order of 13 July

2000 by challenging Coleman’s unconstitutional warrants, and search and

seizure, and moved the Appellate Court to order Frooman to return all

documents and items seized—and now assumed to constitute nearly all of the

evidence (over 38,000 and possibly up to 50,000 documents according to the

government) to be used against defendants in the instant case.

44. Winters contends that this appellate challenge of the Search, coupled with

Winters’ persistent objections made to supervising agent, Coleman, throughout

the long day of Coleman’s unwarranted seizure and Search of the building at 913

17th Street—arguing that all three warrants were unconstitutional and that the

conduct of Coleman’s Search and Seizure was also unconstitutional—have

hatched a vindictive intent against Winters in those individuals concerned with

the warrants’ unconstitutionality.

45. Contrary to the Honorable Judges’ comments aimed at justification of

non-disclosure of bias, Winters contends that the Honorable Judge’s insistence

for and persistent prosecution of Winters is vindictive and, therefore, selective.

See Levenstein v. Salafsky 164 F.3d 345, 352–53 (7th Cir. 1998); U.S. v.

Armstrong et al. 517 U.S. 456 (1996); 116 S.Ct. 1480 (holding that selective

prosecution is violation of the Equal Protection Clause).

46. In addition, Winters objects maintaining that in pressing for Winters’

investigation and prosecution, the Honorable Judge acted outside the scope of

his judicial authority, i.e., his actions against Winters were non-judicial in

function. Because Winters was neither a party before the Court nor did Winters

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in any way impede the Honorable Judge’s ability to make independent minded

judicial judgments concerning any matter, the Honorable Judge’s prosecution of

Winters is personal, not judicial. See Forrester v. White, 792 F.2d 647, 659-60

(7th Cir. 1986)(Posner, J., dissenting); rev’d, 484 U.S. 219, 230 (1988).19

47. Winters further objects, stating that law required the Honorable Judge,

Miller, and Frooman20 to disclose the Honorable Judge’s bias as soon as the

Honorable Judge initiated the Justice Department’s investigation of Winters.21

48. Winters further objects contending that law requires that the Honorable

Judge’s bias and involvement in Winters’ prosecution to be fully disclosed to any

grand jury convened to consider Winters.

49. Neither throughout the years during the investigation of Winters, nor at

Winters’ arraignment on 15 May 2006, nor again at the arraignment on 7 August

2006 of the superceding indictment did the Honorable Judge, Miller, Roger

Heaton (“Heaton”), or Frooman disclose the offending bias to either Winters or

19 See infra app. 9, for a brief and memorandum of authorities concerning distinctions

between judicial and non-judicial acts. 20 Miller, Frooman, and Roger Heaton, by their failure to disclose the Honorable

Judge’s bias against Winters, have committed prosecutorial misconduct under the Code of Professional Conduct and have violated Rule 8.4(7) which states that a lawyer must not “assist a judge or judicial officer in conduct that the lawyer knows is a violation of the Code of Professional Conduct.” Any omission or commission of Miller, or Heaton, or Frooman in this regard is independent of the Honorable Judge’s memory or lack thereof concerning Winters. Miller’s, Frooman’s, and Heaton’s failure to immediately disclose judicial bias against Winters constitutes prosecutorial misconduct.

21 In stating that the law required the Honorable Judge to timely disclose his bias against Winters, Winters does not mean to suggest that by doing so the Honorable Judge would have fulfilled his responsibility to the law. The law requires that the Honorable Judge zealously maintain not only the reality but also the appearance of neutrality by zealously guarding against the mere appearance of bias on the Federal Bench. Mere appearances of bias undermine the perception of justice. Therefore, it was a breach of standards for the Honorable Judge to initiate prosecution against Winters and an exacerbation of that breach to continue participation in it. Even so, once the Honorable Judge had done so, he remained under an affirmative duty to immediately disclose the breach and his bias, and to forthwith recuse himself.

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any grand jury.

50. In In re Murchison, the trial judge had been the prosecutor seeking the

defendant’s conviction. In re Murchison the Supreme Court held: “Having been

part of that process [of a person’s indictment] a judge cannot be, in the very

nature of things, wholly disinterested in the conviction or acquittal of those

accused.” 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

51. Winters’ case is analogous in that the Honorable Judge initiated Winters’

investigation, sought for, provided background information pertaining to,

required updates from Frooman concerning Winters’ indictment, and obtained

them. See Frooman’s Informational Notice of 17 August 2006.

52. The Honorable Judge, therefore, “having been part of that process” of

Winters’ indictment, “cannot be, in the very nature of things wholly disinterested

in [Winters’] conviction or acquittal.” According to Murchison, given the

Honorable Judge’s participation in Winters’ prosecution his neutrality is not

possible.

53. In addition, Winters contends that the law required disclosure of two facts

admitted by Frooman in her Informational Notice and undenied by the

Honorable Judge. First, that the Honorable Judge expected from Frooman a

progress report concerning his demand for an investigation of Winters and,

second, that Frooman submitted to the Honorable Judges’ demand by

“inform[ing] the Court that she had no information to provide at that time.”22

22 See Frooman’s Informational Notice, para. 1. Frooman also states: “Chief Judge

Michael P. McCuskey had provided him [former United States Attorney Jan Paul Miller] background information regarding Defendant Brent A. Winters, and recommended an investigation of Winters’ alleged criminal conduct.” The Honorable

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54. Winters objects, asserting that these errors are not harmless; the

relationship revealed by the two forgoing admissions gives, at the least, an

impermissible appearance of impropriety. Such an appearance constitutes an

unrebuttable presumption of bias. See Harrison v. McBride, 428 F.3d 652, 668

(7th Cir. 2005).

55. Winters further contends that this required disclosure includes any and all

ex parte communications between the Honorable Judge and Frooman, Miller, or

her instructing agent Coleman concerning investigation of Winters, his

indictment, and his prosecution; and encompasses any and all comments the

Honorable Judge, Miller, Frooman, Coleman or any other person conveyed to

any member(s) of any Grand Jury considering Winters’ case. For, by virtue of the

perceived dignity of the Court, any comments of the Court spoken from a biased

inclination can effect biased consequences and is, therefore, irreversible error.

56. The Honorable Judge’s failure to disclose and the ensuing delay has

resulted in the violation of Winters’ civil rights affecting Winters’ civil liberties.

57. Winters further objects to the Honorable Judge’s allegations of fact and

legal conclusions at the Hearing that Winters had violated the attorneys’ Code of

Professional Conduct. Winters observes a discrepancy between these allegations

Judge revealed during the Hearing that this background information concerned Winters’ alleged violation of the Code of Professional responsibility, stating that Winters “certainly” had violated the Code of Ethics.

The Honorable Judge, however, did not report Winters’ alleged violations of the Code of Ethics to the Attorney Registration and Disciplinary Committee (“ARDC”). Further, upon the Honorable Judge’s request for a report concerning the investigation of Winters, neither Frooman nor Miller found ethical violations or criminal activity of Winters to report to the Honorable Judge. See id. para. 2. At that time, however, Frooman and Coleman had had in their possession for well over two years the 38,000+ documents that they now claim form the basis of Winters’ present prosecution.

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and conclusions by the Honorable Judge during the Hearing and Frooman’s

Informational Notice of 17 August 2006.

58. During the Hearing, the Honorable Judge stated that Winters had

certainly violated the Code of Professional Responsibility and that the Honorable

Judge had spoken with former United States Attorney, Miller, about Winters’

alleged unethical behavior.23

59. The Supreme Court held in Supreme Court of Virginia v. Consumers

Union of United States, Inc., 466 U.S. 719 (1980), “that judges acting to enforce

the Bar Code would be treated like prosecutors . . . .” Id., at 734–37. See also,

Forrester v. White 792 F.2d 647, 659-60 (7th Cir. 1986)(Posner, J., dissenting);

rev’d, 484 U.S. 219, 229 (1988).

60. The nature of the Honorable Judge’s actions against Winters were

personal, aggressive, and prosecutorial—not judicial, neutral, and adjudicative—

and indistinguishable in any meaningful way from a prosecutor or other

executive branch official.

61. Winters further objects to the Honorable Judge placing depreciating

allegations and conclusions of law concerning Winters on the record of the

instant case because the Honorable Judge had already recused himself for bias

against Winters. Consequently, being under taint of bias the Honorable Judge

was without authority to place any comments on the record concerning Winters

or his case.

62. In addition, the record reveals the Honorable Judge’s comments to be

23 The Honorable Judge states that he spoke to the former United States

Attorney, Miller, during the Paul E. Palmer trial, case # 01-20041 in May 2002. See Frooman’s Informational Notice of 17 August 2006.

19

objectively unreasonable for the following reasons:

63. Neither the Honorable Judge, nor former United States Attorney Miller,

nor Frooman have filed any complaint with the Illinois Attorney Registration and

Disciplinary Committee (“ARDC”) or, much less, made any accusations of

criminal behavior concerning the alleged activities of Winters cited by the

Honorable Judge during the Hearing as unethical and used by the Honorable

Judge and Miller on or about May 2002 as cause to initiate investigation of

Winters.24

64. Winters objects to the Honorable Judge’s reason for recusal at the Hearing

in that the reason given—memory loss—is an error of fact. 25

65. During the Hearing the Honorable Judge repeatedly emphasized that he

lacked any recollection of Winters from the time of the Palmer trial in May 2002

until 17 August 2006 when Frooman filed her Informational Notice. The record,

however, belies this.26

66. The record shows that during the pretrial proceedings and the trial of

Patridge during June 2005 (see United States v. Patridge, Case # 04-20031

Central District of Illinois), the Honorable Judge made at least three references to

24 But see infra app. 6, for the Honorable Judge’s direct admonition to attorneys

Frooman and Taylor, Barringer and Winters concerning their affirmative, mandatory duty to report another attorney’s unethical behavior to the ARDC under the Himmel doctrine. See In re James H. Himmel, 125 Ill. 2d 531; 533 N.E. 2d 790.

25 During the Hearing the Honorable Judge, however, recited the statements of a witness concerning Winters of over four years ago at the Paul E. Palmer trial. See Paul E. Palmer Trial, case # 01–20041 (May 2002). But the Honorable Judge stated in the Hearing that he could not possibly have remembered the Defendants. Ms. Frooman refreshed my recollection of Winters and, as a result of that, I have recused myself.

26 See infra app. 7, for indication from the record that the Honorable Judge retained Winters in his thoughts at least throughout 2005 and until Winters’ first arraignment of 15 May 2006.

20

Winters revealing his present conscious bias against Winters:

67. He advised Patridge’s Attorney, Barringer, during pretrial proceedings,

that Winters was untruthful; he commented during a mid-trial hearing that if

Winters takes the stand on behalf of Patridge and invokes the Fifth, Winters can

be taken out the back door, i.e., jailed for contempt; and further stated to

Winters that Winters may soon be tried before the Honorable Judge, just as

Barringer’s client, Patridge, is now being tried. See Transcript of Hearing Before

the Honorable Judge of 24 June 2005. See infra app. 7

68. In response to Winters’ Motion for Dismissal for Selective and Vindictive

Prosecution of 11 August 2007, Frooman filed an Informational Notice on 17

August outlining the Honorable Judges’ bias toward Winters.

69. During the Hearing the Honorable Judge repeatedly emphasized two

things: that no thought of Winters had crossed his mind since the summer of

2002 and that Frooman’s Notice of Information refreshed his memory of

Winters.

70. Winters further objects to the Honorable Judge’s reference at the Hearing

to the case of Paul Palmer (see U.S. v. Palmer 01-20041 ) as though relevant to

Winters’ case. The Honorable Judge’s conclusion is error as a matter of law.

There is no relevance; the operative facts associated with the two cases are

distinct and unmentioned in either indictment against Winters.

71. The comments of the Honorable Judge, made during the Hearing in

justification of his bias toward Winters, further confirm the Honorable Judge’s

vindictive, selective, and persistent demand for Winters’ prosecution. After citing

what he considered negative testimony concerning Winters in the Paul Palmer

21

trial, the Honorable Judge stated that he certainly found those witnesses in Paul

E. Palmer’s case to be credible. See Hearing Before the Honorable Judge of 23

August 2006.

72. The Honorable Judge’s opinion comments placed on the public record,

however, are prejudicial. Moreover, the Honorable Judge’s personal opinions of

the witnesses’ credibility in the Palmer trial are the exclusive domain of the jury

as a matter of law. Any comments of the Honorable Judge’s opinions concerning

the credibility of witnesses’ comments concerning Winters constitute non-judicial

acts in unnecessary derogation of Winters’ credibility and as such are violations

of Winters’ rights of due process. Therefore, Winters respectfully objects to the

Honorable Judge’s comments being place on the record.

73. Winters further objects to the Honorable Judge placing his opinion of legal

conclusion on the record that the Appellate Court will deny Winters’ appeal—filed

on 22 August 2006—concerning the Court’s violation of Winters’ right to a

speedy trial under the Speedy Trial Act.

74. Winters further objects to the Honorable Judge’s ruling to continue the

case, for the Honorable Judge lacked authority to make any rulings respecting

Winters’ case and especially rulings concerning continuance, affecting Winters’

fundamental rights, i.e., rights of due process and rights under the Speedy Trial

Act. Indeed, any ruling made by the Honorable Judge would violate Winters’

rights of due process.

75. Winters further objects to the Honorable Judge’s stated reasons for the

22

continuance delay—i.e., that Hills’ had not yet retained counsel27 and that another

judge had not yet been assigned to Winters’ case since the Honorable Judge’s

recusal28—because these reasons are in error as a matter of fact and do not meet

the requirements of the Speedy Trial Act as a matter of law.29

76. These reasons are error of fact because the cause of the continuance and

the delay resulted from the Honorable Judge’s decision to preside over Winter’s

case after unjustifiably insisting upon Winters’ investigation and pressing for

Winters’ indictment; Frooman’s failure to disclose the Honorable Judge’s bias

against Winters; the Honorable Judge’s knowledge of evidentiary facts in dispute;

and the Honorable Judge’s failure to timely disclose bias and disqualify himself

as required by 28 U.S.C. § 455 (a) (1).

77. Given the facts, no other reasons are possible. Any delay and continuance

was not the result of any action of any defendant in this case. No defendant

moved for or, otherwise, by their actions necessitated the Court’s continuance of

23 August 2006.30

78. The Honorable Judge’s continuance on the Court’s own motion and the

resulting delay has further exacerbated violations of Winters’ rights under the

27 On 7 August 2006, the Honorable Judge disqualified Hills’ defense counsel,

attorney Jerold Barringer, upon Frooman’s motion made on behalf of public defender John Taylor and over the objections of attorney Barringer and attorney Winters. See Frooman’s Affirmative Motion in Limine and Motion for Emergency Hearing 31 July 2006. Taylor joined Frooman’s motion made on Taylor’s behalf. Winters objects in that Frooman lacked standing to make this motion.

28 Frooman filed her Informational Notice on 17 August 2006; the Honorable Judge recused himself on 18 August 2006.

29 See 18 U.S.C.A. 3161 (h) (8) (B) i–iv. 30 Whether the failure to disclose bias and the resulting delay was intentional or

unintentional is of no concern for purposes of the Speedy Trial Act because the controlling factor in this instance is that the delay in violation of the Speedy Trial Act is not attributable to any act or conduct of Winters, or Tylman, or Hills. See infra app. 8.

23

Speedy Trial Act.

79. Winters further objects to the Honorable Judge’s continuance, on his own

motion, because it extended his continuance that he had granted on 14 July 2006

due to congestion of the Court’s calendar, as unjustifiable under the Speedy Trial

Act.

80. On 14 July 2006, the Court stated the following but provided no reasons as

justification for the continuance granted that day: that the continuance serves the

ends of justice, and that the government has a right to a speedy trial also.31 At the

Hearing (23 August) the Honorable Judge stated the ends of justice findings are

served which outweigh the best interests of the public and the defendants, all in

violation of the Speedy Trial Act resulting in a violation of all Defendant’s rights

to due process and equal protection of the law.

81. Winters further objects stating the Honorable Judge erred as a matter of

law by making the ruling on the continuance at the hearing because the

Honorable Judge lacked authority—having previously recused himself for bias.

82. The Honorable Judge errs, however, because the ends of justice do not

override defendants’ rights as a rule but instead are served by observing

fundamental rights; and because the Court failed to place on the record a precise

statement defining the ends of justice that were served by the Court’s ruling as

required by 18 U.S.C.A. 3161 (h) (8) (B) i–iv. See Hearing Before the Honorable

31 Winters fails to understand the rationale for this reason except to observe that the Honorable Judge may have been claiming a right for the government to try the case of United States of America v. Barry L. Williams, 2:06 CR 20018. The Honorable Judge had, on 26 May 2006, scheduled to commence the Williams case on the same date, 24 July 2006, as the case herein before the Honorable Judge, with defendants in both cases represented by the same public defender. See for specific facts, Jurisdiction Memorandum of Appellant Brent Winters, United States of America v. Brent A. Winters, case # 06-3256 (7th cir.).

24

Judge McCuskey of 23 August 2006.

83. According to the statute, the Court, in making an ends of justice finding,

can only take into consideration the defendant’s rights and the public good; the

statute does not mention the government’s rights as a permissible consideration.

The defendant’s rights, however, outweigh the public good where the two conflict.

See U.S. v. Zedner 126 S. Ct. 1976; 164 L. Ed. 2d 749; 2006.32

70. Winters further objects because in considering whether a continuance

should have been granted because the Speedy Trial Act requires that reasons for

any continuance must be precisely set forth in the record or the continuance will

not be so exempted from calculations for purposes of the Act. Court congestion

does not qualify as a reason under the Act. See 18 U.S.C.A. 3161 (h) (8) (B) i–iv.

[The Court must determine w]hether the continuance was granted for an “inappropriate” reason, such as general congestion of the court’s calendar or lack of diligent preparation or failure to obtain witnesses on the part of the government’s attorney. No continuance granted on such grounds will qualify as excludable.33

71. Failure to comply with the time limit requirements of the Speedy Trial Act

demands dismissal of Winters’ prosecution. See 18 U.S.C.A. §3162. Courts have

held there is a presumption in favor of dismissal with prejudice. See United

States v. Angelini 553 F.Supp. 367 (D. Mass., 1982), affirming on other grounds

32 In granting public defender Taylor’s Motion to Continue of 22 July 2006—in

derogation of Winters’ rights of due process and his right to a speedy trial under the Speedy Trial Act—the Honorable Judge misstated the applicable law at Hearing on Taylor’s Motion, holding that the Motion is granted in favor of the ends of justice, based upon the government’s rights. Winters respectfully objected then, and continues his objection now. See Hearing on Taylor’s Motion to Continue of 24 June 2006.

33 CHARLES H. WHITEBREAD AND CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE 565 (1986).

25

678 F.2d 380 (1st cir. 1982).34

72. Winters further objects to the Honorable Judge’s declared intention

during the Hearing that he would talk to all of the judges of Illinois’ Central

Federal District before assigning one as his replacement, because to do so is a

violation of 28 U.S.C. rule 40.1 (a).

73. Winters further objects to the Honorable Judge’s participation in

assigning any judge to Winters’ case following the Honorable Judge’s recusal,35

because federal law requires that, “after recusal or disqualification of a judge to

whom a case has been assigned, the case shall be assigned (or reassigned)

forthwith to a judge at random.” 28 U.S.C. rule 40.1 (a) (emphasis added).

74. Therefore, Winters objects to any communication concerning Winters’

case that the Honorable Judge may have had with other prospective judges to be

34 According to Whitebread and Slobogin:

The preferable approach would be to dismiss with prejudice all cases involving statutory violations which are not clearly the product of defense caused delay. When non-excludable delay is not defense-produced, the government should bear the cost. Given the large number of exemptions to which the prosecution can resort, this approach would not unfairly burden the government: rather, it would encourage the diligence and efficiency necessary to insure defendants are not detained or made to wait in the community for prolonged periods of time prior to having their case resolved.

CHARLES H. WHITEBREAD AND CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE 565 (1986). No delay in this case has been defense-caused. On the contrary, all delays have been caused by collusion between the prosecutor and court appointed defense counsel to continue and failure of the Honorable Judge and the prosecutor to disclose bias.

35 During the Hearing the Honorable Judge stated that he hoped that when he returned from his vacation he would have talked to all of the judges of the Central District (Judge Mihm, Judge McDade and Judge Scott) and discussed their schedules with them since twenty days have been allotted for Winters’ trial. The Honorable Judge went on to opine that Winters’ trial is not a short run of the mill trial regularly in federal court. Consequently, as Chief Judge he did not want to assign it to anyone after his recusal until he had talked to all the judges about their schedules. The Honorable Judge then said he would soon talk to all the Judges and reassign the case. See Hearing Before the Honorable Judge McCuskey of 23 August 2006.

26

assigned to Winters’ case as impermissible error.

75. During the Hearing the Honorable Judge, however, belabored his

intention to speak to the individual judges, thereby creating the appearance of a

desire to predispose and influence the succeeding judge rather than letting the

case be reassigned “forthwith . . . at random,” i.e., without the Honorable Judge’s

involvement.

76. By emphasizing for the record that he (the Honorable Judge) will

interview the three available Judges and take cognizance of their schedules; and

by stating that he had not yet assigned a judge because he, as well as the

Honorable Judge Baker and the Honorable Judge Mihm, had been on vacation, it

appears that the Honorable Judge was attempting to justify his intent to speak to

all the judges by relying on 28 U.S.C. Rule 40.1 (b) or (c).

77. Winters, however, respectfully objects, because 28 U.S.C. rule 40.1 (b) and

(c) do not apply to cases of judge disqualification and recusal. See 28 U.S.C. rule

40.1 (a).

CONCLUSION

WHEREFORE, due to the above noted errors, which are not harmless,36 Winters

objects and states that he has been permanently prejudiced. Winters files this

Claim of Error and Record of Objections with all respect due to and in the

interest of the integrity of this Honorable Court.

36 See Harrison v. McBride, 428 F.3d 652, 668 (7th Cir. 2005).

27

APPENDICIES

APPENDIX—1 —Appended to Footnote 1—

During the past six years or more years Winters has referred those pressing

him for tax advice to competent counsel. In some instances, circumstances,

practicality, and duty required that Winters assist those targeted or otherwise

pursued by the IRS.

On 5 January 2004 and 15 January 2004, during Winters’ representation of

Denny Patridge (“Patridge”), Winters petitioned the IRS due process hearings

officer, David P. Schermann (“Schermann”), for a stay of proceedings pending

conclusion of IRS agent Bernard Coleman’s (“Coleman”) criminal investigation of

Patridge; because the government had placed Patridge in real, appreciable

accusatory danger, entitling Patridge—according to the findings of the Supreme

Court—to Fifth Amendment protection. See, e.g., Schmerber v. California, 384

U.S. 757 (1966).

During the course of the Patridge trial, evidence emerged showing collusion

between the IRS hearing officer, Schermann, and IRS agent Coleman aimed at

using Schermann’s administrative IRS court to extract additional information

from Patridge to use against him in a criminal prosecution; thereby unlawfully

circumventing Patridge’s Fifth Amendment rights.

Winters objected to this abuse of civil process by letter to hearing officer

Schermann. Officer Schermann then consulted with agent Coleman, and he and

agent Coleman backed down: officer Schermann granted Patridge’s request for a

stay of his due process hearing pending the outcome of any criminal

investigation, stating that Coleman gave him permission to grant the stay.

In retaliation, AUSA Frooman and agent Coleman sought and obtained an

indictment against Mr. Patridge—by less than Honorable means—basing charges

of obstruction of justice upon Patridge’s lawful request for a due process hearing.

See supra paras. 19–21 and accompanying notes.

28

On behalf of four other clients (two sets of husband and wife), Winters had

exhausted, without success, every possible avenue to arrive at a reasonable

agreement with IRS auditors. Knowing that the IRS had used their whipsaw tax

as an excuse to unlawfully double and triple or quadruple the tax on his clients,37

Winters petitioned Congressman John Shimkis on behalf of his first set of clients

and petitioned Congressman Timothy Johnson on behalf of his second set of

clients. After independent investigation, both Congressmen, acknowledging that

Winters’ clients’ disputes were in good faith, invoked the federal Taxpayer

Advocate Board to assist them in resolving their constituents’ problems.

With these Congressmen’s assistance, the IRS’s tax assessment on one set of

clients was corrected and resolved decidedly in Winters’ client’s favor, i.e.,

according to law. The IRS’s assessment on Winters’ other set of clients, however,

was not resolved until 5 September 2006, in the government’s favor, i.e., Winters’

clients paid at least ten times the amount that they could have possibly owed—

according to Winters’ clients and depending upon which accountant Winters

consulted.

IRS agent-auditor Mark Miller remarked to Winters following Winters’ and his

clients’ petition to Congressman Timothy Johnson, “We’ve never had a taxpayer

request assistance from a congressman before.” Winters believes that the

government’s investigation and indictment was motivated, in substantial part, in

vindictive retaliation for exercising the right of petition on behalf of his clients.

37 See generally Post Trial Hearing in the case of Denny Patridge of 8 May 2006, during which the Honorable Judge acknowledges at least five times that IRS auditor Mark Miller’s (“Miller”) testimony revealed that the whipsaw tax assessment is a grossly exaggerated assessment levied against taxpayers personally. It unlawfully calculated as the sum of the following: the assessment that the IRS has levied against all closely held corporations, trusteeships, and partnerships of which the taxpayer holds any control or an interest plus that same income assessed against the taxpayer personally. Federal law forbids assessment or collection of a tax that is not due and owing.

As was established by government testimony at the Patridge trial, the whipsaw assessment is unauthorized under any statute, regulation, or court finding. Further, the Honorable Judge firmly stated that that he will not permit the government to use the whipsaw tax amounts against Patridge as a basis for sentencing and as unlawfully proposed by AUSA Frooman. Because no regulation or law authorizes the whipsaw assessment and because no IRS agent or clerk is authorized to act outside of precise regulatory language, the whipsaw assessment is unlawful.

29

See U.S. CONSTI. amend. 1; Schneider v. Smith, 390 U.S. 17, 88 S.Ct. 682 (1968).

Included in the right of every person to petition for redress of grievances, is the

right of one person to refer another to legal counsel. See United Mine Workers v.

Illinois State Bar Ass’n, 389 U.S. 217, 88 S.Ct 353 (1967). See also Ohralik v.

State Bar, 436 U.S. 447, 98 S.Ct. 1893. The Supreme Court has found the right to

petition for redress of grievances to be a lawful defense to criminal actions and to

not be restricted. See DeJonge v. Oregon, 229 U.S. 353, 57 S.Ct. 255 (1937);

Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct 680 (1963).

Winters contends that the foregoing joint prosecutorial acts initiated and

maintained by the Honorable Judge, Miller, Frooman, and other IRS agents and

employees known and unknown were aimed at chilling Winters’ sworn duty as an

attorney zealously represent the interest of his client by freely petitioning the

government for redress of grievances.


The Honorable Judge ruled in the still disputed evidentiary hearing

concerning the search of the office of Ken Tylman and Worldwide Financial

Services. See In the Matter of the Search of the Office of Ken Tylman, Worldwide

Financial Services, 913 17th Street, Charleston, Illinois 61920, Case # 00-U-13,

00-U-14, 00-U-15 (“Search”).

The Search was authorized by the Honorable Judge’s magistrate, in which

agents under color of warrant and under the loose supervision of Coleman,

searched38—even beyond the scope of the color of warrant—several separate

offices and businesses; and seized, without discrimination, approximately

38 Coleman’s supervision was loose at best because even though supervising agent, he

was absent, at various times from the place to be searched for at least five or more hours during the day of the Search in search of a valid warrant. While Coleman was absent in search of a valid warrant, Coleman’s agents secured and held all offices on the premises; opened and labeled drawers and desks during Coleman’s presence and in his absence. Coleman filed to separate searches between invalid warrants as required by law.

30

38,000+ documents,39 including but not limited to the following items unrelated

to the alleged subject of the search and seizure: $161.00 petty cash, miscellaneous

office supplies, photographs and pictures, five computers (one of which has never

been returned), blank videos from Vidpro Productions, blank State of Illinois

forms and blank insurance forms. Also seized were attorney Winters’ clients’ files

and documents in drawers and on computer hard drives. Winters or his client’s

files were not the objects of or referred to because the warrants contained no

attachment of list of items to be seized.

When the agents departed at approximately 10:30 p.m. the night of the Search,

the offices and drawers of the building at 913 17th Street were as barren—said one

of the proprietors—as the inside of Betty Lou Who’s house after the Grinch stole

Christmas. See In Re Matter of the Search of 913 17th Street, Charleston, Illinois

245 F. 3d 978 (argued 13 February 2001; decided 5 April 2001).

On appeal of the Honorable Judge’s Order, the Seventh Circuit Court of

Appeals reserved judgment on the suppression of evidence concerning this

Search and seizure, holding that Defendants’ retain the right to post indictment

motions for suppression “pursuant to Rule 12 of The Federal Rules of Criminal

Procedure . . . to not only secure the return of the seized property, but also to

challenge the constitutionality of the search itself.” See id. Winters does not waive

this right.

Winters has a proprietary interest in the Search because Winters’ office was in

the building searched, agents entered Winters’ private office, Winters’ clients’

files were searched and seized, the computer belonging to Winters’ part time

secretary (Hills), which contained confidential documents belonging to Winters’

clients and unrelated to anything referenced by any of the three attempted

warrants,40 was seized and taken from her office. Neither attorney Winters’ name,

office, papers, files or effects nor Hills’ name, office, papers, files or effects were

39 The government affirms at least 38,000 documents, but defendants estimate that the number of documents taken is closer to 50,000. It is impossible for defendants to be precise because the government has not returned paper copies. 40 See Disc # 171 of documents taken during the Search from the private office and computer of attorney Winters’ part time secretary, Hill’s, copied by the government, and returned to Tylman in November 2000. The documents copied on disc are small an sometimes difficult to read. Only recently, after more than six years, have Winters’ clients’ documents been uncovered.

31

listed on the warrants, because the warrants contained no list of items to be

seized. See id. By the ruling of the Appellate Court, the suppression issue is now

appropriate because it remains in dispute. See id.

APPENDIX—3

—Appended to Footnote 15—

Because Coleman and his agents broke and entered Street unexpectedly,

circumstances necessitated that upon Tylman’s on-the-spot request for

immediate counsel Winters acquiesced to assist, and acted as Tylman’s attorney

concerning the Search throughout the remainder of the day of the three

attempted warrants, the Search, and execution of a general seizure. Throughout

the day-long securing of the building at 913 17th, much of it in the absence of

supervising agent Coleman, Tylman and Winters objected to persistent attempts

of warrantless searches.

Upon Coleman’s presentment of each of the three alleged warrants to Tylman

(the third warrant was verbal), Winters respectfully objected to their

constitutional insufficiency. Coleman’s alleged third warrant, late in the day, was

merely verbal by telephone through his agent on the scene, for Coleman was

absent, claiming he had the warrant at another location.

Now late in the day, Coleman and his agents felt pressed to commence the

Search because federal and constitutional law limits Searches to daytime. The

agents, therefore, forfeited the legal niceties of searching for any particular items

(they had no list of items to be seized as required by law) and began seizing and

boxing items indiscriminately without supervising agent Coleman’s presence and

without presenting a written warrant.

Moreover, in order to fulfill his duty to preserve Tylman’s, McNutt’s, Woolen’s,

and Hills’ rights under the Fourth Amendment, Winters persistently and politely,

but firmly demanded that Coleman remove himself and his agents from the

premises in that they were trespassing without a valid warrant. Winters kindly,

respectfully, and persistently reminded Coleman that by seeking two more

warrants, Coleman had admitted that his earlier warrants were unconstitutional.

32

Further, having admitted that the warrant Coleman had depended on to break

and enter the premises was invalid, Coleman and his agents were trespassing

and, therefore, while Coleman sought a valid warrant all agents must leave the

premises, but Coleman would not.

Not only were the three warrants unconstitutional on their face but none of the

warrants mentioned or otherwise authorized any search of the offices of McNutt,

Woolen, Hills, Vidpro Productions, WFLA, or attorney Winters.

Although Winters persisted in reminding Coleman that he not search office

spaces of those persons and businesses not drawn on Coleman’s nearly year-old

diagram or listed on the face of the warrant, Coleman insisted in relying upon his

stale diagram to conduct and direct his Search. Winters admonished Coleman

repeatedly throughout the day of the Search that the offices in the building are

separate offices for separate businesses not alluded to in any of the three

purported warrants.

Winters also appealed to Coleman reminding him that if stayed out of the

offices and files of McNutt, Woolen, Hills, and Winters it could only help him

achieve his goals, but if he violated these other offices, it could create potential

difficulties for his search and seizure. Coleman chose to ignore Winters’

information and violated the proprietary interests of McNutt, Woolen, Hills,

Winters, and Tylman (Vidpro and WFLA), by entering and searching their

separate offices and businesses and seizing their papers and effects without

constitutional warrant.

The Seventh Circuit Court of Appeals substantiated Winters’ warning to

Coleman that his warrants were constitutionally wanting. The Appellate Court

referred to Coleman’s presentment of the first warrant without any attachments

as a naked warrant, his presentment of the second insufficient warrant was as

good as naked because the attached list of items to be seized was copied from a

search approximately two-hundred miles away. See In Re Matter of the Search of

913 17th Street, Charleston, Illinois 245 F. 3d 978 (argued 13 February 2001;

decided 5 April 2001).

Frooman was the supervising government attorney responsible for Coleman’s

actions before, during, and after preparation and execution of the constitutionally

33

insufficient warrants.

APPENDIX—4


In Harrison, the Court confirmed the Indiana Supreme Court’s “view that the

abuse of discretion . . . occurs when the trial court ‘expresse[s] an opinion on the

merits of the controversy.’ ” The Honorable Judge’s comments made while

presiding over the Hearing, are now part of the public record and available for all

to view, while other documents evidencing ex parte communication between the

United States Attorney’s office, Frooman, and the Honorable Judge remain

sealed and unavailable to the public, to Winters, and to the other defendants in

violation of fundamental due process and the right to a public trial, including

pretrial proceedings.

“Litigation is a public exercise; it consumes public resources. It follows that in

all but the most extraordinary cases—perhaps those involving weighty matters of

national security—complaints [briefs and motions and responses] must be

public.” Levenstein v. Salafsky et al 164 F. 3d 345, 1998; See U.S. CONSTI. art. 6.

By no stretch of logic or reason can the instant case be made to fall into the

category “involving weighty matters of national security.” Id.

In In Press Enterprise Co. v. Superior Court, 464 U.S. 501 at 510, 104 S.Ct. at

819, at 824, 78 L.Ed. 2d 629, at 683 (1984), the court held that the right to a

public trial applies to pretrial proceedings as well as the trial itself; and that

closure of any portion of pretrial proceedings placed on the record, or the

interests that would justify hiding that specific portion of the pretrial proceedings

from public view, are not in the interest of Freedom of the Press or Freedom of

Speech. Any sealing of documents of court documents strikes at the foundation of

free speech a free press, and the indispensable feature of our adversarial

tradition. Without openness, a genuine adversarial process is prevented, keeping

truth from its best opportunity for being laid bare. See id.

The court further found that a defendant’s Sixth Amendment right to a public

trial is coextensive with the public’s First Amendment Right of their freedom to

speak and laid down a precise regiment for courts to follow before hiding any

34

portion of the record from public view.

The presumption of openness may be overcome only by an

overriding interest based on findings that closure is essential to

preserve higher values and is narrowly tailored to serve that

interest. The interest is to be articulated along with specific findings

specific enough that a reviewing court can determine whether the

closure order was properly entered.

Id. See also Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed. 2d 31

(1984). The Court has neglected this regimen in the instant case. Winters objects.


The Seventh Circuit directly comments concerning Coleman’s three sequential

attempts to compose a valid search warrant on 31 March 2000. Coleman

attempted to serve—in sequence and over more than a five-hour period—three

constitutionally insufficient search warrants with hopes that each succeeding

warrant would atone for the short fallings of the previous warrant(s), each one

referring specifically to the Office of Ken Tylman and World Wide Financial

Services. Referring to Coleman’s Search, the Seventh Circuit Court of Appeals

states:

The second warrant arrived and it contained an attachment listing

items to be seized, but, in what must have been a Keystone Cops

moment, the agents saw that the list referred to items to be seized

in a related search at a different location. The agents realized the

error and again consulted with a supervisory agent. Again, agents

went back to court for yet another warrant [the third warrant].

See In Re Search of the Office of Ken Tylman, 245 F. 3d 978; 2001.

Rightfully without confidence in the constitutionality of any of the three

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insufficient warrants, Coleman took further extraordinary steps to create the

appearance of a constitutional search by belatedly filing with the Court, on 19

April 2000, an affidavit attempting to correct the mistakes that took place on 31

March 2000. See Affidavit of Coleman Under Penalty of Perjury, executed on the

19 April 2000.

Winters continues to contend—as he persistently and politely did to Coleman

throughout the day of the Search—that because the supervising agent, Coleman,

and his armed agents entered the building at 913 17th Street under the mere color

of warrant and a constitutionally stale diagram (approximately eleven months old

during which time the entire building had been remodeled, four new offices

added with four distinct businesses occupying them) they were without authority

to remain on the premises and to secure the building inside and out for upwards

of at least seven hours while Coleman departed to fetch a second, and again

departed to seek a third warrant.

Winters also contends that because Coleman abandoned the first two warrants

as constitutionally insufficient and failed to provide a third providing only a

verbal assurance through one of the agents in his absence, the ensuing Search

was warrantless.

Moreover, Coleman’s departure to seek a second and then a third warrant were

further admissions that the first “warrant” by which Coleman and his agents

entered the building was constitutionally wanting and, therefore, without

authority. Consequently, having entered the premises without a valid warrant,

Coleman and his agents were constitutionally unjustified in securing the

premises inside and out while they sought a second and then a third warrant.

Once Coleman admitted the constitutional insufficiency of the first warrant in

word (by admitting the first warrant was constitutionally wanting) and by deed

(traveling to secure a second warrant), he was obliged to gather his agents and

retreat from the premises in respect of law. Coleman chose, however, to persist in

trespass.

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At hearing on Frooman’s Emergency Motion in Limine and Motion for

Emergency Hearing (to dismiss attorney Barringer as counsel), 7 August 2006,

Frooman stated to the Honorable Judge McCuskey that the duty to report

unethical behavior of another attorney is up to each individual attorney. The

Honorable Judge corrected Frooman’s error, then admonished attorneys

Frooman and Taylor, Winters and Barringer that an attorney’s duty to report

unethical behavior is mandatory, not discretionary. See Hearing of 7 August 2006

before the Honorable Judge McCuskey.

During the Emergency Hearing of 7 August 2006 concerning Frooman’s

allegations of Barringer’s ethical violations, the Honorable Judge inquired of

attorney Frooman, asking why she had not reported Barringer’s alleged violations

to the ARDC. Frooman responded that the decision to do so was within her

individual discretion. The Honorable Judge corrected attorney Frooman, briefly

recited the history of the Himmel doctrine (see In re James H. Himmel 125 Ill. 2d

531; 533 N.E. 2d 790), then admonished attorneys Frooman and Taylor,

Barringer and Winters, in no uncertain terms, that an attorney’s duty to report

the unethical behavior of another attorney is neither discretionary nor optional—

it must be done. Promptly, immediately following the hearing, the Honorable

Judge reported attorney Barringer to the ARDC.

The Honorable Judge, however, did not notify the ARDC of the alleged

“certainly” unethical behavior of Winters’ in May 2002. Winters, therefore,

respectfully argues that the Honorable Judge’s deprecatory comments during the

Hearing concerning Winters’ alleged unethical advice to his clients—of now more

than eight years ago—resulted from errant conclusions of law, because based on

inaccurate determination of facts.


During a pre-trial conference in the case of United States v. Patridge, Case #

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04-20031, in the Central Federal District of Illinois, during June 2005, and in

response to Patridge’s attorney’s (Barringer) disclosure to the Honorable Judge

that Patridge intended to call Winters as a witness on his behalf, the Honorable

Judge called Winters a non-credible witness.

The Honorable Judge continued stating that they (attorney Barringer and

Patridge) can go read the transcripts for themselves—referring to the transcripts

of the hearing before the Honorable Judge In the Matter of the Search of the

Office of Ken Tylman, Worldwide Financial Services, 913 17th Street,

Charleston, Illinois 61920, para. 10, during which Winters testified.

On 24 June 2005, during the Patridge trial and over the objections of

prosecutorial threats of Frooman, Winters offered to appear as a witness for his

client, Patridge, indicating to the Court that he does not believe that federal case

law affords a “blanket fifth” (see Brent Winters’ Motion For Order of Protection

of 24 June 2005, dkt. # 138). In note 1 Winters states: “As to testimony, Winters

does not intend a claim of “blanket” Fifth Amendment protection, that is to say,

Winters will listen to each and every question posed and assert the Fifth where

applicable.” Id. (underlining in original). In other words, Winters recognized that

since assertion of Fifth Amendment is on a “question-by-question basis,” as a

matter of law it can only be asserted under oath. Winters informed the Court that

he is not a recalcitrant witness, but also reserved his rights under the Fifth

Amendment. Id.

In his filing Winters sought to inform the Court “frankly” and directly of his

position. At that time, however, Winters, did not realize that the Honorable

Judge had placed Winters in a position of “real accusatory danger” by initiating

Winters’ prosecution and, further, was responsible for placing and keeping

Winters in real accusatory danger, necessitating Winters’ reservation of his rights

under the Fifth Amendment, and placing Winters in danger of incarceration for

contempt in the event that the Honorable Judge disagreed with Winters as a

matter of law concerning Winters’ invocation of Fifth Amendment protection

concerning any particular question directed to Winters. Id.

It is Winters’ sincerely held belief that he stood under real and “appreciable

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accusatory danger” as that phrase is defined and applied to the right to invoke

Fifth Amendment protection. At that time, however, Winters did not realize that

the Honorable Judge participated in the prosecution that had placed Winters in

appreciable accusatory danger. Therefore, the Honorable Judge made an error of

law by granting “blanket Fifth” Amendment protection to Winters.

In response to Winters’ reservation of Fifth Amendment protection concerning

any particular question, the Honorable Judge began by reading negative

comments into the record much as he did in the Hearing. See Transcript of

Hearing of 24 June 2005, United States v. Partridge, case # 04-20031. Then the

Honorable Judge asked Frooman that if winters took the stand for Partridge

would she take the position that the scope of questioning on cross-examination

would be unlimited? Frooman answered, “yes.” Then the Honorable Judge

commented that if Winters testifies for Patridge and decides to invoke Fifth

Amendment protection as to any particular question, we can take him out the

back door.

Still again, the same day (24 June 2005 during the trial of Patridge), the

Honorable Judge—referring to Winters’ coming indictment—stated to Winters

that Mr. Winters may soon be back before the Honorable Judge with Mr.

Barringer representing him. See id.


The continuance of 14 July 2006 was due to the Court’s congestion. In

addition, the record reveals that public defender, Taylor, scheduled two trials on

the same day: the instant case and the Barry Williams case (United States of

America v. Barry L. Williams, 2:06 CR 20018). Consequently, the Honorable

Judge and Taylor scheduled themselves to appear together in the same Court on

the same day in the same two trials with Taylor defending two different

defendants. Therefore, in order for Taylor to try both cases, one of the two trials

had to be continued. Taylor chose to file a continuance in the instant case, but

failed to say precisely why.

One could surmise a motivation, however, to maintain both cases: trying both

39

cases would generate more attorney fees.41 By filing a continuance for less than

legally justifiable reasons, not only did Taylor violate the Defendants’ rights to a

speedy trial under the Speedy Trial Act and the Sixth Amendment, Taylor also

filed his motion for continuance without consulting with other defense counsel

and against the express, written demand of his client, Tylman, to not forfeit any

of his (Tylman’s) rights.

Nevertheless, the Court granted Taylor’s motion for continuance without

justification and over the prior instructions and objections of Tylman and in

violation of the Speedy Trial Act. This Act requires that the Court place specific

justification for a continuance on the record, but Taylor provided none and the

Court did not place any on the record. See 18 U.S.C. 3161 (h)(8)(A). The Supreme

Court’s finding on this point is clear and unambiguous: the Speedy Trial Act

requires precise and express findings. The Court’s failure to place these on the

record is “not subject to harmless-error review.” See Zedner v. United States 126

S.Ct. 1976; 164 L.Ed. 2d 749; 2006 U.S.

APPENDIX—9


Judicial authority may be measured by cases proscribing the boundaries of

judicial immunity and “should ‘be confined to situations where . . . [it] is not

merely convenient but essential.’ ” Forrester v. White, 792 F.2d 647, 659-60 (7th

Cir. 1986)(Posner, J., dissenting); rev’d, 484 U.S. 219, 230 (1988). In Forrester,

the Supreme Court upheld Judge Posner’s dissent, finding that judicial immunity

should protect only adjudicative functions, i.e., judicial acts. Traditionally,

judicial acts do not extend beyond judicial rulings and acts necessary to the

unfettered performance of the judicial duty. See id. at 661.

Winters contends that in pressing for Winters’ criminal investigation and

prosecution the Honorable Judge acted without judicial authority, because

prosecutorial acts are non-judicial in function, that is, not in any way related to

41Winters intends no accusation on this point. A loyal attorney is entitled to compensation.

Winters does, however, attempt to understand the reason for Taylor’s callousness toward his client’s and Winters’ rights.

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the judicial case-deciding process. “It is unsurprising, then, that this court and

other courts have repeatedly held that . . . judges performing the purely

prosecutorial functions involved in initiating criminal prosecutions” are not

judicial acts. Barnes, 105 F.3d at 1118; Sevier v. Turner, 742 F.2d 262, 272 (6th

Cir. 1984); Lopez v. Vanderwater, 620 F.2d 1229, 1235 (7th Cir. 1980) (emphasis

added).

21 September 2006 Respectfully Submitted,

s/Brent Winters____________ BRENT WINTERS Law Office of Brent Winters 11318 Via Vista Nevada City, CA 95959 Ph. 217-549-4050 Fax 530-265-6564 E-mail: [email protected]

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CERTIFICATE OF SERVICE This is to certify that the above signed Record of Objections, dated 21 September 2006, was ECF with the court, that will send electronic notice to the following individuals: Hilary Frooman, 201 South Vine, Urbana, Illinois 61801, 217-373-5875. [email protected]. Carol Disen, Beckett & Webber PC, 508 S. Broadway, PO Box 17160, Urbana, IL 61803-7160, [email protected] Debra Hills, 913 17th Street, Charleston, Illinois 61920 s/Brent Winters____________ BRENT WINTERS Law Office of Brent Winters 11318 Via Vista Nevada City, CA 95959 Ph. 217-549-4050 Fax 530-265-6564 E-mail: [email protected]

Claim Of Error

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