Wednesday, November 10, 2010


A Malicious Prosecution
By Bradford Metcalf

Definitions: Malicious Prosecution. One begun in malice without probable cause to believe the charges can be sustained...Black’s Law Dictionary, 6th Ed.
Kangaroo Court. Term descriptive of a sham legal proceeding in which a person’s rights are totally disregarded and in which the result is a foregone conclusion because of the bias of the court or other tribunal.
The following story is an example of federal prosecution. It is not an exception, but the rule, of what happens in federal courtrooms on a daily basis.
In a time of political unrest in our nation, I associated with what I thought was a group of like-minded individuals. It turned out that the only thing these people all had in common was a desire for a return of the Constitution of the United States. This group was what is called the militia by both the press and by legal definition.
I was a firearms hobbyist, having been a federally licensed firearms dealer for 6 years. I was a competitive shooter, reloader, amateur machinist and tinkerer.
I, like many other Americans, loved my country, however, didn’t like what I saw was going on with the mis-administration of our government. I understood that those misadministrators not only were a threat to our liberties but to the whole civilization. This leadership had set America up as a target for any terrorist group. These leaders had made the whole world distrust and hate America.
Though I had been a Boy Scout for only a short time, I had learned a vitally important lesson—Be Prepared. Most of the other like-minded associates had felt that preparedness was a good idea, as well. For what? Natural and man-made disasters, economic collapse and, oh yes, the old concern of our forefathers—tyranny.
So what did these like-minded individuals do? A small group of them would show up at my place to roll around in the dirt and weeds, dig holes in the ground, shoot at the target range and tell tales. I had 37 acres to play in and a good time was had by all.
Ken Carter became the commander of my group, not due to his wonderful leadership skills, but because Carter had emphysema, a heart condition, and a bad back. He didn’t work. He loved to talk on the phone and watch the news. Carter could be depended upon to call up members of the group to show up for training - a time consuming chore in itself.
Carter had an attitude about government infringement of American rights. Alot of people do - at least those that could see what has happened to those rights. No one in this group thought that having an opinion was criminal. Carter, myself and others were soon to find out otherwise.
In August, 1997, after three botched attempts, the BATF and FBI, assisted by the Michigan State Police, conducted a raid on my rural home. The State Police pulled me over for a “traffic stop”. An ATF-SRT member “detained” me at gun point. Shortly, 70+ agents were swarming over my house. I had warning that the ATF would eventually be coming, so I carefully checked over everything I had and determined I had nothing illegal. That didn’t seem to slow down the ATF, in the slightest.
My wife, and her children, were at home, during this time. My 17-year-old stepdaughter was “frisked” by a male ATF agent who, when done feeling her to his satisfaciton, pulled her waistband out and looked down into her shorts. One has to wonder what he was looking for—machine guns?
ATF “special agent” Mark Semear, told me they had found three machineguns. I told Semear that what they had found were LEGALLY purchased parts sets - that a completed right sideplate (of which I did not possess) is what constitutes a machinegun. Thirty minutes later, after calling their office, Semear led a group of agents into the house, with the battle cry, “we are going in for the sideplates!”
I asked twice for an attorney and was twice refused. ATF’s response—“you haven’t been arrested, only detained”. After eight hours of rummaging through my personal belongings, ATF secured another warrant - this time for all legal-to-own items. I watched in disgust as ATF carried my gun collection of 28 LEGAL firearms out to their cars, along with my computer, software, videos, and armloads of my personal property.
Seven months later, March, 1998, I, Carter and another man, Randy Graham. were arrested. I speculate that this was precipitated by the fact that Agent Semear knew he was about to be sued, for the return of my legal firearms.
All three defendants were arraigned and given a preliminary exam. NO indictment had yet been delivered. No bond was set, due to the defendants being “too dangerous”. One has to ask, “if they were so dangerous, why did ATF wait for 7 months to arrest them?” (On the stand, Agent Semear stated that they had to plan the arrest. But, 7 months??)
In the eight months that it took to go to trial, a number of interesting things happened. Seventeen pre-trial motions had been filed. None were answered promptly by the judge. After Graham and Carter had agreed to a plea, I was locked up in solitary confinement, unable to do any legal research, or make contact with family or legal counsel. It appears that Special Investigative Agent Weber, at Milan Federal Detention Center, had conspired with Assistant U.S. Attorney Lloyd K. Meyer, to isolate me and thereby break my will in order to force me to take a plea bargain. Meyer offered me a 3-year “bargain”, but I refused, asserting my innocence. Meyer had political aspirations, and he expected three “easy marks” that would make him a hero in the legal and political arena.
I held out and the elections passed. Graham was told that he would have to lie about me in order to get his “bargain”—a guaranteed 5 year sentence. Graham refused to lie, and for this he was sentenced to 55 years in federal prison.
Carter, on the other hand, not only “got on the bus”, but he also agreed to become an informant, “ratted” on everyone he had ever met, and would probably have, if given the chance, sell out his mother for a dime. His agreement was for a (new heart and two lungs) transplant, and back surgery. I found that Carter only received a bypass and one lung.
It came out at my trial, that Carter had been conspiring with an undercover ATF agent for months, to start a war with the federal government. Since Carter never testified, this was all hearsay evidence. At trial, Judge Richard Alan Enslen, the Chief Judge in the Western District of Michigan, chose to ignore that little fact. Before proceeding further, I should note that Judge Enslen had numerous forbidden, unethical one-sided (ex parte) communications with the investigating agents, at which time Judge Enslen was told that my group had planned on killing him and the other federal judges. Not only was this a lie, but I was never given an opportunity to rebut the accusation. This judge, obviously, was biased against me, before he ever laid eyes upon me.
Judge Enslen ignored everything that was inconvenient to getting a conviction. He ignored Graham’s affidavit about the coercion, intimidation, and subornation of perjury by Assistant U.S. Attorney Meyer, in trying to obtain a plea bargain from him. He cancelled my evidentiary hearing pertaining to Graham. When I asked what type of conspiracy charge (1,2,3, or 4 element) I had to defend against, Judge Enslen replied, “ask your attorney.” (I had appeared pro se).
Judge Enslen disallowed about 1% of Meyer’s evidence against me. My objections to hearsay and/or irrelevance went unheeded. When it came time for me to admit my evidence, Judge Enslen disallowed everything except the previously played audio tapes (that had been cut and edited) of the government telephone tap. Judge Enslen also disallowed my expert witnesses.
My evidence consisted of letters, advertisements from commercial publications, government statements, and government publications. All of it was admissable evidence—if the judge had wanted it to be. All of it was intended to show my innocence, however, none of it was allowed by Judge Enslen.
Judge Enslen told the jury a nice little story about a visit to a prison which brought him face to face with one of his previous victims. This victim was his tour guide. She explained how the six-year sentence he gave her, had given her the opportunity to get her life together, beat her drug addiction and reconcile herself with her family. This was the equivalent of saying, “go ahead and convict Metcalf—a couple of years behind bars will, once again, make him a useful member of society.” Judge Enslen didn’t care that I was a family man, had been working full time at Kellogg’s, in Battle Creek, for 10 years, prior to my arrest, or the fact that I had no prior criminal history.
I neglected to request a jury instruction, however, Judge Enslen should have included one, to inform the jury that if I had made a showing of withdrawal from the alleged conspiracy, I could be acquitted of that charge. I tried to produce evidence to support the “withdrawal defense”. The problem was, no evidence had ever been presented by the prosecutor, to prove any conspiracy by me. Judge Enslen chose to ignore that fact, as well. When I asked for a Rule 29 Motion to Dismiss (for lack of evidence), he could have dismissed the whole case, at that time—and he should have.
Judge Enslen had been shown that the alleged silencer was actually a rifle barrel extension. He had been shown the statute that stated the “destructive device” was a legal signalling device. He had also been requested by me to force the prosecution to supply video footage of the alleged machineguns. In short, Judge Enslen knew I was NOT guilty of any of the charges placed against me.
Judge Enslen, without any federal law to support him, told the jury, “something to consider here is, were Metcalf’s weapons where they were accessible to children, were they loaded, and were they on safety?” This statement was absolutely inappropriate.
When Judge Enslen was asked to give a jury instruction pertaining to the word “readily” (to readily convert into a machinegun) as used in the statutes that I supposedly had violated, Judge Enslen gave a dictionary definition without specifying a time frame. The use of the word “readily” can generally be considered to be about ONE MINUTE (see e.g. 18 U.S.C., 926A Interstate Transportations of Firearms, or 26 U.S.C., 5842 Identification of Firearms). It was obvious that I could not “readily” assemble a functional weapon from the parts sets.
Throughout trial, Judge Enslen continously attributed ALL of Carter’s statements (from the telephone tapes), to me, even though I had never even heard most of those statements. When it became apparent to me that the only law that Judge Enslen paid any attention to was “case law” (previously decided cases), I cited two Supreme Court cases that should have caused a dismissal of everything but the conspiracy charge. However, once again, Judge Enslen decided to ignore me, and these court cases.
Judge Enslen had been asked to suppress my seized gun collection as evidence, due to the firearms being ALL legally owned and configured. However, the collection was paraded in front of the jury to prejudice them. The prosecutor alleged, “why else would he have all these guns except to wage war against the government?” The jury, as I predicted, bought it.
I had asked for an expert witness, however, was told that if I had had a lawyer, I could have had an expert appointed. Continuously, through trial, Judge Enslen “begged” me to take HIS (Enslen’s) attorney.
After I examined one of my (out of two) witnesses, Prosecutor Lloyd K. Meyer started his cross examination and then called for a recess. Meyer then grabbed his friend, ATF agent Semear, and proceeded into the foyer to question and intimidate my witness. When I found out what had happened, I brought it to the attention of Judge Enslen. Judge Enslen had a “hearing” (without the jury in the courtroom), to see if any damage had been done. After listening to the witness state that he had, in fact, been intimidated, Judge Enslen declared that no harm had been done. In fact, Judge Enslen compared the sizes of the prosecutor and ATF agent, to the size of the “tampered” witness. Since the witness was much larger in physical size, Judge Enslen couldn’t understand how he could have felt intimidated by two federal law enforcement agents. So much for the obvious witness tampering and intimidation.
After my closing statement, Judge Enslen told the jury to ignore my comments regarding the Second Amendment and other constitutional issues.
Judge Enslen, twice, instructed the jury, that in order to find me guilty of conspiracy, they must unanimously find me guilty of at least one of the four offenses charged. Judge Enslen then supplied the jury with a verdict form that allowed a general verdict - leaving me without any idea of what I was convicted of, or how to appeal it.
Throughout trial, Judge Enslen made it quite clear that he hadn’t read any of my pre-trial motions. He ruled on my pre-trial motions (all 17 of them denied), with several motions challenging the sufficiency of the indictment—however, a month later, stating for the record, “I haven’t even read the indictment, I don’t know what you are charged with.”
At sentencing, Judge Enslen “over-ruled” all of my objections to the Pre-Sentence Investigation Report (PSIR). Under the sentencing Statue [F.R.Cr.P. Rule 32(c)], the judge, for each matter in controversy, MUST make either a finding on the allegation, or the matter won’t affect sentencing. Judge Enslen did neither. I objected to almost every issue in the PSIR, due to inaccuracies, irrelevance (most of the report was about conspirator Ken Carter), or unproven allegations at trial.
He sustained my argument about trust ownership of my house, but then ruled that I could sell my house in order to pay for transcripts to effect my appeal. Judge Enslen also made unsolicited psychiatric evaluations from his bench.
When I commented on Blackstone’s commentaries on the common law, Judge Enslen stated he had always disagreed with Blackstone. It is well known, Blackstone is/was the accepted defacto authority on common law.
At my sentencing hearing, (May, 1999), I argued my “use of a firearm in the commission of a violent crime” (18 U.S.C. 924(c)), according to the Sentencing Guidelines, should NOT be the mandatory 30 years (for “machineguns”), as prosecutor Lloyd Meyer had requested, nor the mandatory 10 years (for a “semiautomatic assault weapon”) as Judge Enslen eventually ruled—but a mandatory 5 years (for a “firearm”), because I was convicted of “use or carry” of a firearm. Judge Enslen told me that I should feel lucky. I had just saved 20 years of my life (sentencing me to 40 years, instead of 60 years), by successfully arguing that machineguns were not used in the “violent crime” (according to Judge Enslen, having a political opinion is a violent crime). NOW I will be released when I am 87 years old, instead of being 107 years old. In other words, Judge Enslen had sentenced me to 40 years without parole for having LEGAL firearms—a virtual sentence of life in prison!!
When I asked the court for my right to have a copy of the trial transcripts, I was refused. I didn’t find out why until after the appeal was filed. Normally a prisoner is considered indigent unless proven otherwise. However, not in this case.
I appealed.
During the several extensions of time requested by prosecutor Lloyd K. Meyer (and granted), to respond to my appeal, Meyer wrote a letter to the Sixth Circuit Court of Appeals, stating that I had been found guilty of “conspiring to murder the governor of Michigan, a federal senator, and Western District of Michigan federal judges, as well as to blow up the Federal Building in Battle Creek.” Not only were these allegations NOT proven at trial—but they were never alleged!!!
It didn’t take much for the appeals court to shoot my appeal down. The trouble is, not only did NO judge see this appeal, but a law clerk obviously wrote the opinion based solely on the brief of the prosecutor, and the “extension” letter, since both had been repeated verbatim on the opinion. Since Meyer didn’t address any of my issues head-on, NONE of my issues were addressed in the opinion, as well. NO relief was given to me, at all.
Quite obviously, NO Artcle III judge had ever seen my paperwork, so I sent a complete briefing package to one of the alleged judges on the appeal. The Honorable Martha Daughtrey in Nashville, Tennessee, had no comment, whatsoever.
I then petitioned the Supreme Court to hear my case. I was shot down on December 11, 2000—coincidently, at the exact time the election case of Bush v. Gore was being heard. I wondered how a Supreme Court could be paying attention to my case (decide it’s worthiness to be heard by them), when the Justices were tied up with chosing a president and making history. The answer was simple—The law clerks, again, had denied me.
I petitioned for a rehearing. Again, I was denied—by the law clerks, since the Justices were on “holiday recess” from the decision of Bush v. Gore. Since Justices Thomas and Scalia have practically begged for a pure Second Amendment case for years, their comments must have been either pure rhetoric
At some point after trial, I was looking through the Grand Jury transcripts. I noticed that FBI agent Robert Jones had commented to a grand juror about “briefing” Judge Enslen several times. These briefings were about my group and how we had “targeted” the judge. This is ex parte communication. It is wholly unethical and forbidden. It was also a lie. Normally, it will get a new trial or possibly a dismissal of the indictment. However, not in this case. It was a complete deprivation of my right to meet my accuser.
My family scraped together enough money to have an attorney prepare a habeas corpus petition under 28 USC, 2255.
I submitted a motion for the judge to recuse himself from this case, considering the extrajudicial source of apparent bias from the exparte communication. When confronted with the actual evidence, Judge Enslen “danced around it” by saying he could talk to marshals anytime. True to form, he slam-dunked my 2255 motion, and the Motion to Recuse, as well as denied me a Certificate of Appealability. The Sixth Circuit Court of Appeals denied me of my “right” to a certificate of appealability. It was my “right”, due to my having met the requirements specified by law.
I petitioned the Supreme Court, clearly demonstrating the miscarriage of justice and Kangaroo Court adjudications. Since petitions for certiorary are “discretionary”, I was, again, denied my day in court.
I later filed a pair of motions with the original district court. One of those motions was another motion requesting Judge Enslen to recuse himself (for the fourth time). The other motion showed fraud by the prosecutor—68 (known) ethics violations. Judge Enslen denied the recusal motion and transfered the fraud motion to the appeals court for me to request a certificate of appealability. Both the judge and I knew that the motion did not qualify as a habeas corpus petition (therefore, also not qualifying for a certificate of appealability). I appealed Judge Enslen’s decision.
I filed my notice of appeal as a matter of right, asking for a docket number and briefing schedule. I received neither. After numerous letters and phone calls, I finally, out of frustration, simply filed an appeal brief. The brief was promptly returned to me, with no explanation.
I filed a petition for a writ of mandamus with the U.S. Supreme Court. This is an “extraordinary writ”, meaning that it is rarely issued, except when all other avenues of relief have been exhausted. The mandamus is an order from a higher court to force (usually) a lower court to do it’s job. I qualified. The Supreme Court simply refused to grant me my day in court (for the fourth time). I have been before the courts 14 times, (District, Appellate, Supreme Courts), with NO adjudication on my issues.
I filed a moton for the return of my property, (approximately $50,000 worth of legal firearms), in January, 2005. Judge Enslen denied the return of those firearms in July/August, 2005, after having stated in an earlier order, that I could designate someone to receive them. This latest action represents the final deprivation of all my material possessions, by the federal government. I am currently in appeal of those denials.
In January, 2005, I filed a Petition for Clemency, (pardon request), with President Bush, via the Pardon Attorney, at the U.S. Department of Justice. I was informed that most clemency request investigations take 18-24 months. I would appreciate any reasonable letter written to the President, requesting a pardon on my behalf. Making mention of this gross miscarriage of justice, would be helpful.
Re: Bradford Metcalf, #09198-040, Pardon Petition
c/o Mr. Roger C. Adams, Pardon Attorney
U.S. Department of Justice
500 First Street, NW, 4th Floor
Washington, D.C. 20530
As of this writing, (October, 2006), I have now spent well over 8 years in a federal prison for a LEGAL gun collection and exercising my “right” to free speech, religion, association and petitioning the government for a redress of grievances. Since the beginning of this nightmare, I have lost my job, my home and property, and most of my personal possessions. I also went through a divorce, and lost custody, as well as contact, with my daughter.
Although this has been a “cornucopia of government misconduct”, these are the tactics which are used on a daily basis to ensure convictions in many, if not most, federal courtrooms. Where does it end?
Bradford Metcalf
Federal Correctional Institution
Terre Haute, Indiana
footnote : There exists a case styled 98cv95 that Bradford Metcalf filed against Judges Danny Boggs /Boyce Martin / Simpson/Heyburn for R.I.C.O. / Bivens Act claims similar to Charles Schlund III , that has been "suppressed from the public , so if you ever find yourself in any Federal Corporate Court , demand that they produce that case for your proof that there "Racketeering" like the attorney Richard I Fine exposed in Los Angeles , California and is unlawfully imprisoned for. Stay vigilant and DEMAND TILL YOUR LAST BREATH , YOUR "GOD" GIVEN RIGHTS THAT AREN'T ENUMERATED IN THE CONSTITUTION ! Amen.

1 comment:

  1. So sad, instead of going after the criminals, they go after gun owners, law abiding citizens. sad and scary