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UNITED STATES COURT OF APPEALS Informal Reply Brief by JMODICA

VIEWS: 713 PAGES: 20

									No. 09-6446 ________________________________________________________________ IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT ____________________ JULIEN DILKS a/k/a Julien Modica and THE JMA FOUNDATION, INC.
Appellants/Defendants, v.

JULIA C. DUDLEY, UNITED STATES ATTORNEY AND THOMAS LINN ECKERT, ASSISTANT UNITED STATES ATTORNEY, WESTERN DISTRICT OF VIRGINIA,
Appellee/Plaintiff. _______________________

ON APPEAL FROM A FINAL ORDER AND MEMORANDUM OPINION OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, ROANOKE DIVISION
___________________________________________________________________________

REPLY BRIEF OF APPELLANTS, THE JMA FOUNDATION, INC AND JULIEN DILKS
___________________________________________________________________________

Julien Modica, MPH, MPP Pro Se 4870 Sadler Rd Suite 300 Glen Allen, Virginia 23060 Office: 804-205-5199 Cell: 202-276-1174

TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………..…...iii STATEMENT OF SUBJECT MATTER JURISDICTION AND APPELATE JURISDICTION.……………………………………..…...v STATEMENT OF ISSUE...……………………………………..……..…..…vi STATEMENT OF CASE…………………………………………………..….1 SUMMARY OF ARGUMENT…………..…………………………………....2 ARGUMENT I. BECAUSE THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ORDER ARGUABLY VIOLATES THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, THIS COURT MAY CONDUCT AN INDEPENDENT REVIEW OF THE RECORD……………...……………………………………….....…3 THE LANGUAGE USED IN THE STATUTE TO LIMIT THE COURT’S DISCRETION IS INCAPABLE OF OBJECTIVE DEFINITION AND PROVIDES ONLY THE ILLUSION OF A LIMITATION.……………………………..…………………….…4 A STRICT ADHERENCE TO THE STATUTE PERMITTING A SUCCESSFUL CONVICTION DOES NOT PROVIDE ANY GUIDANCE AS TO WHAT IS ACCEPTABLE UNDER THE STANDARD.……………………………….………………..….…8

II.

III.

CONCLUSION…………………………………………….……….………………....11 CERTIFICATE OF SERVICE……………………..………………………...12 ATTACHMENT A Spiegel, et al v. Shinseki, et al……………………………………………....13

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TABLE OF AUTHORITIES Cases Page

City of Houston v. Hill, 482 U.S. 451, 458, n.6 (1987)…………………………………….………….3 Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)………………………………………………….....4 Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)…………………….…….v Julien Modica v. Fairfax County Public Schools CN-L2005-2312/2005……………………………………………..…………7 Julien Modica v. Fairfax/Falls Church Community Services Board CL-2005-0007205/2006………………………...……………………………7 NAACP v. Button, 371 U.S. 415, 433 (1962)…………………………………………………….4 NAACP v. Claiborne Hardware, 458 U.S. 886, 915-16, n.50 (1982)…………………………………..……….3 Papachristou v. City of Jacksonville, 405 U.S. 156, 166-7 (1972)……………………………………………..……5 People v. Richetti, 302 NY 290, 298, 97 NE2d 908, 912 (1951)………………………………...v United States v. Dilks, 7:93-cr-00091-jct-1(W.D.Va)………………………………………...…1, 7, 9 Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)…………………………………………….…….4, 7 Weddle v. Director, Patuxent Institution (November 11, 1970)…………………………………………………………v

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Statutes and Regulations

Page

28 U.S.C. § 2255……………………………………………………………..…3 28 U.S.C. § 1331………………………………………………………………..v 28 U.S.C. § 1291……………………………………………………………….vi 18 U.S.C. § 1344…………………………………………………………….vi, 8 28 U.S.C.A. § 1343(3)………………………………………………………….v

Other Authorities

Page

Stanley Rappapart, Paralysis No Bar to Dilks, D1 Washington Post, May 21, 1976……………………………………………6

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STATEMENT OF SUBJECT MATTER JURISDICTION AND APPELLATE JURISDICTION

Appellants claim a violation of their rights guaranteed under the Fifth and Fourteenth Amendments of the Constitution of the United States, made applicable to the Appellants through a Writ of Error Coram Nobis.1 Subject matter jurisdiction in the United States District Court for the Western District of Virginia was authorized by 28 U.S.C. § 1331 and 28 U.S.C.A. § 1343(3).2 Final judgment by that court was entered on February 27, 2009. A notice of appeal to the United States Court of Appeals for the Fourth Circuit was filed March 9, 2009. Appellate jurisdiction is authorized by 28 U.S.C. § 1291.3

“We do not think that the presumption of regularity can serve to settle, without trial, what otherwise would be a plain dispute of fact. A presumption of regularity exists only until contrary substantial evidence appears. It forces the opposing party ([Appellant] here) to go forward with proof but, once he does go forward, the presumption is out of the case. It could not conceivably be used to prevent defendant from proving his allegations. There must be a trial, as we have indicated and it will be for the Trial Judge to pass on all questions of fact, including the credibility of [Appellant] and of any other witnesses on either side.” See People v. Richetti, 302 NY 290, 298, 97 NE2d 908, 912 (1951). 2 Quoting from the opinion of U.S. Court of Appeals for the 4th Circuit, No. 14498, Weddle v. Director, Patuxent Institution (November 11, 1970), “Using the rationale advanced by Mr. Justice Stone in his separate opinion, concurred in by two other Justices, in Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), in which there was no majority opinion. The formulation of Mr. Justice Stone was that 1343(3) applied 'whenever the right or immunity is one of personal liberty…’” 3 The courts of appeals have jurisdiction over appeals from "final decisions" of the district courts.
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STATEMENT OF ISSUE May an Assistant U.S. Attorney from the Department of Justice, under the authority of a federal statute that grants significant discretion to the U.S. Attorney, prosecute a survivor of brain injury (GCS<4) for bank fraud in violation of 18 U.S.C. § 1344 using information about the brain injury rehabilitation process disseminated to him by the Department of Justice without allowing Appellant to review and correct (if needed) said information?

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No. 09-6446

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

JULIEN DILKS a/k/a Julien Modica and THE JMA FOUNDATION, INC.
Appellants/Defendants, v.

JULIA C. DUDLEY, UNITED STATES ATTORNEY AND THOMAS LINN ECKERT, ASSISTANT UNITED STATES ATTORNEY, WESTERN DISTRICT OF VIRGINIA,
Appellee/Plaintiff _______________________ ON APPEAL FROM A FINAL ORDER AND MEMORANDUM OPINION OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, ROANOKE DIVISION ___________________________________________________________________________ REPLY BRIEF OF APPELLANTS THE JMA FOUNDATION, INC AND JULIEN DILKS ___________________________________________________________________________

STATEMENT OF CASE A Statement of Case is included in Appellants’ informal brief filed previously in this matter. That statement is merely a condensed version of the findings of fact contained in United States v.Dilks, 7:93-cr-00091-jct1(W.D.Va), docket entries dated 7/18/1994. The DOJ full IQA correction
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process also at issue is expected to be part of the trial record and Appellants will subsequently make a motion to have it displayed at oral argument. SUMMARY OF ARGUMENT The function of a reply brief is not to repeat the arguments made in the Appellant’s informal brief, but to briefly respond to particular issues raised in the Appellee’s informal brief. In keeping with that purpose, this brief will make only the following three arguments. First, because this case involves a constitutional issue, the “abuse of discretion” standard does not apply to this Court’s review of the case. Second, although Appellee is correct that Jefferson National Bank and First Union Bank collectively lost $22,508.37, Jefferson National Bank was the only bank to testify at trial and, therefore, the scheme of check kiting4 is illusory and in fact, describes the Appellants actions very little, if at all. Third, a strict adherence to the bank fraud statute contained in the conviction does not provide any guidance as to what is acceptable and what is not regarding defendants who suffer the affects of neurological injury.

4

Whoever knowingly executes, or attempts to execute, a scheme or artifice— (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;…
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I.

BECAUSE THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ORDER ARGUABLY VIOLATES THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, THIS COURT MAY CONDUCT AN INDEPENDENT REVIEW OF THE RECORD. Appellants do not dispute the lower court’s finding that a writ of error

coram nobis, as opposed to 28 U.S.C. § 2255 because Julien Dilks is not in custody, must be applied to this case. However, Appellants do dispute Appellee’s assertion that this Court apply an “abuse of discretion” standard of review to the lower court’s findings. Appellee fails to note that the abuse of discretion standard does not apply when “the activity in question is arguably protected by the Constitution.” City of Houston v. Hill. 482 U.S. 451, 458, n.6 (1987) (citing NAACP v. Claiborne Hardware, 458 U.S. 886, 915-16, n.50 (1982)). Appellant is asserting that the district court’s order violates the due process rights of the Fifth and Fourteenth Amendments of the United States Constitution. As such, this Court should conduct an independent review of the lower court record, including the full IQA correction process regarding brain injury information disseminated to the Appellee that will be displayed at oral argument, to determine whether Appellant’s Fifth and Fourteenth Amendment rights have been violated.

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II.

THE LANGUAGE USED IN THE STANDARD TO LIMIT THE COURT’S DISCRETION IS INCAPABLE OF OBJECTIVE DEFINITION AND PROVIDES ONLY THE ILLUSION OF A LIMITATION. Appellee argues that the district court’s dismissal of a petition for a Writ

of Error CoramNobis is reviewed using an abuse of discretion standard with only the degree of flexibility necessary for the district court to make decisions on the variety of applications that come before it. In making this argument, Appellee urges flexibility over substance, justifying the standard even though its application in any particular case is very difficult, if not impossible, to predict. While mathematical certainty is not required, it should nonetheless be reasonably clear what a [standard] as a whole prohibits. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). The catch-all terms of the abuse of discretion standard are incapable of objective definition. The fact that the purported limitations are expressly listed only provides the illusion of a real standard. In practice, the language provides little guidance as to what is acceptable. Of course, one cannot expect perfect clarity. Ward v. Rock Against Racism. 491 U.S. 781, 794 (1989). But we can and do expect standards “with narrow specificity.” NAACP v. Button. 371 U.S. 415, 433 (1962). “Standards of permissible statutory vagueness are strict.” Id. At 432.

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The abuse of discretion standard is analogous to penal statutes that formerly gave police broad authority to arrest vagrants and loiterers. Such statutes often contained lengthy descriptions of the conduct to be sanctioned, but in terms so “all-inclusive and generalized” as to permit punishment for virtually any behavior. Papachristou v. City of Jacksonville. 405 U.S. 156, 1667 (1972). In finding one such statute invalid on vagueness grounds, the Supreme Court observed that its elusive terms provided a ready cloak for official action that would otherwise violate the Constitution. Id. At 169. The district court’s “abuse of discretion” standard permits the court to disapprove petitions that are not wrong, but the decisions/behaviors display the affect of neurological injury, and it further reserves to the court the power to deny a petition on grounds not defined. Mental health issues are not easily defined5 by a statute or by a U.S. District Court and this language provides no practical guidance and could serve as a means to justify decisions made on unconstitutional grounds. Indeed, in the Appellee’s Informal Brief no reference is made to the standard of the district court’s order that is affected by Julien Dilks’ 1976

5

The signature wound of the Iraq and Afghanistan war is brain injury, PTSD, and/or Depression and the effects of this injury are not going away just because the Appellee tries to ignore the effects.
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traumatic brain injury (GCS<4).6 7 Instead, the Appellee created new grounds for the district court’s dismissal by stating, “[i]n the years subsequent to his brain injury, [Julien Dilks] has achieved notable professional and academic success… all of which speak to [Julien Dilks’] high degree of mental acuity.”8 9 The constitutional flaw is made more obvious by the fact that the evidence shows it reasonably possible to be more specific. The Appellants have identified objective decision/behavior standards in the Neurological Injury Protection Act of 200510 as well as providing other documents that would illustrate clear guidance to the district court,11 yet it has refused to consistently integrate those decisions/behaviors into its orders. Even if the terms of a standard are vague, it may be possible to justify it by appeal to limiting See “Paralysis No bar to Dilks,” Stanley Rappapart, Washington Post page D1 May 21, 1976. 7 Brain injuries with a GCS<4 are the most severe and the expected morbidity (or quality of life) post injury is poor. 8 Julien Dilks’ MPH was granted in 2003 and his MPP was granted in 2005, ten years after Appellants bank fraud indictment. 9 The fact that Appellee cites Julien Dilks’ academic and professional achievements to bolster their argument is evidence Appellee has no understanding of the pathology associated with brain injury rehabilitation. Brain injury is not a developmental disability, but an acquired disability, and the associated sequela are very different (prior to his brain injury Julien Dilks was a straight “A” student). 10 The Act provides a Clear and Convincing Evidence standard for what is necessary to be a guardian of people with neurological injury. 11 In a Supreme Court of Virginia Petition, Appellants made the argument that the Supreme Court of Virginia's personal moral convictions should suffice to overcome the strong, constitutionally based presumption in favor of the statute of limitations when the facts pertain to a person with neurological injury.
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enforcement practices. Ward, 491 U.S. at 795-96. The record indicates that, in the first instance, the district court approved the use of Coram Nobis because it is clear that the testimony from Ken Dilks12 13 has raised more questions than it has answered. United States v.Dilks, 7:93-cr-00091-jct-1(W.D.Va), docket entries dated 7/18/1994. But nothing in the record indicates the district court has applied the skepticism Ken Dilks’ testimony deserves when considering either Appellants’ first or second Coram Nobis petition. The inference is that the Julien Dilks’ stepfather and person at the center of an on-going controversy between Julien Dilks and the Fairfax County School Board. Julien Dilks’ polevaulting injury happened when a Herndon High School (in Fairfax Virginia) “homemade” pole-vaulting box broke while Julien Dilks was pole-vaulting causing Julien Dilks to fall 14 feet on to his head. Because Julien Dilks had reported Ken Dilks to Fairfax County School authorities for giving alcohol to minors, four months earlier, Ken Dilks ignored the statute of limitatons and Fairfax County’s gross negligence was never questioned. See Julien Modica v. Fairfax County Public Schools, CN-L2005-2312/2005. Further, on September 13, 2005, Julien Dilks was hospitalized at Fairfax Hospital with knife wounds on his left arm caused by an unknown assailant (but assumed to have some relationship to Kenneth R. Dilks). See Julien Modica v. Fairfax/Falls Church Community Services Board, CL-2005-0007205/2006. 13 In the summer of 1980, the Fairfax County Circuit Court arbitrated whether the accusation, by Kenneth R. Dilks, that Julien Dilks should be committed to a psychiatric ward was accurate. The Julien Dilks had given documentation to Irene Dilks (Julien Dilks’ mother) proving Kenneth Dilks did not graduate from college. Ken Dilks was outraged and used the fact that Julien Dilks had suffered a brain injury in 1976 to call the Julien mentally ill. Further, Kenneth Dilks contacted the Fairfax County police; contrived a fictitious scenario; and had Julien Dilks detained overnight in the psychiatric ward at Fairfax Hospital. Julien Dilks was released the following morning. Over the following two weeks Julien Dilks had to prove to the appropriate authorities that the accusation by Ken Dilks was false, which Julien did. This dispute has shown its ugly head as recently as March 8, 2007 in a letter from Calvin Dilks to Julien Dilks (See Appellants’ 2007 Writ of Error Coram Nobis).
12

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district court does not want to be limited by such information if it happens to favor the Appellant. Such subjective discretion is not tolerated under the Fifth and Fourteenth Amendments. If judicial preservation is the goal, then the cost must be to make felons of all veterans affected by neurological injury, accused of check kiting, regardless of severity of disability and community outrage, and regardless of the role brain injury played in the crime when it furthers that goal.

III.

A STRICT ADHERENCE TO THE STATUTE PERMITTING A SUCCESSFUL CONVICTION DOES NOT PROVIDE ANY GUIDANCE AS TO WHAT IS ACCEPTABLE UNDER THE STANDARD. Appellee correctly observes that the lower court placed particular reliance

on the fact that the bank fraud statute 18 U.S.C. § 1344 requires the Appellants to have “knowingly [executed], or [attempted] to execute, a scheme or artifice (1) to defraud a financial institution; or…”14 Further, that the bank fraud statute establishes a process for an informal pre-indictment review of the proposed conviction. Appellee then implies that because Appellants withdraw their “inflated” Jefferson National Bank account monies before examining their

The fact that Appellants’ (JMA Foundation, Inc and Julien Dilks) never gained one penny as a result of their crime has never been disputed by the district court or the Appellee. Therefore, part (2) of the bank fraud statute – “to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;…” – is not at issue.
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account balances and did not seek formal bank approval (short of submitting a properly completed withdrawal slip), Appellants “intentionally defrauded a financial institution.” Examination of the trial record demonstrates this argument is without merit. The lower court record indicates that when told of the overdrawn account at Jefferson National Bank, the Appellants communicated with their First Union, Washington, DC bank and their Franklin National, Washington, DC Bank.15 16 The bank managers explained what check kiting was and said, “not to worry, because [in their opinion] nothing was done intentionally.” This appeal is based on the district court’s dismissal of Appellants’ Writ of Error Coram Nobis petition and, therefore, the fact that Appellee reserves half of its informal brief to dispute Appellants’ long held belief17 that the Appellants’ did not commit bank fraud is irrelevant to this proceeding.

15

Julien Dilks wanted to be closer to his new born twin girls and The JMA Foundation, Inc. was opening an office in Charlottesville, Virginia (Julien Dilks’ hometown). All, but a $500 “Journal of Head Injury” advertisement check from the “Lake Erie Institute of Rehabilitation” (a prominent Lake Erie, Pennsylvania brain injury rehabilitation facility) had come from JMA’s Washington, DC First Union Bank account and Franklin National Bank account. 16 Although part of Appellee’s check kiting theory, First Union Bank and Franklin National Bank refused Appellee’s invitation to appear at Appellants’ July, 1994 bank fraud trial. 17 See United States v.Dilks, 7:93-cr-00091-jct-1(W.D.Va), docket entries dated 7/18/1994
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One can only speculate, however, as to what guidance upper management at Jefferson National Bank would have given the Appellants if they had sought formal bank approval. The analysis the Appellee gave in its Informal Brief suggests that guidance by upper management at Jefferson National Bank would have provided very little help. In plain English, the district court’s decision states “fails to state a claim upon which relief can be granted.” Does “fails to state a claim” mean Julien Dilks’ brain injury is not severe enough? What severity of brain injury would “state a claim?’ These questions demonstrate the frailty of Appellee’s argument that reference to the bank fraud statute provides guidance for the district court. Appellee is essentially arguing that a future case could find guidance as to what is acceptable by examining the instant case. As the Court can see by reviewing the district court’s dismissal or the Appellee’s Informal Brief, nothing is stated regarding Julien Dilks’ 1976 brain injury. Further, as discussed above, the reasons contained in the final decision offer little guidance. Similarly, the trial record demonstrates that the files maintained by the court are not particularly well-organized or clear. On March 13 2009, a colloquy between Judge Turk, Tom Eckert, and Appellants indicates confusion on Tom Eckert’s part over subpoenas requested for the March 10, 2009 trial. If trained legal counsel is confused over why information is requested, it is not

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difficult to assume that so too would anyone involved in the representation of an injured veteran18 in a future case when asked to provide the important details of a particular point. This is not to argue that the Fifth and Fourteenth Amendments of the Constitution require the district court to specifically write out the basis of its decision relative to the effect of brain injury. Rather, it is to demonstrate that the vague language of the abuse of discretion standard cannot be saved by reference to the bank fraud statute. Indeed, such a standard merely indicates the uncertainty of predicting what the district court will not dismiss. CONCLUSION For the reasons contained in this Reply Brief and the Appellants informal brief, Appellants request that the decision of the United States District Court for the Western District of Virginia, Roanoke Division, be reversed.

See Allan M. Spiegel, MD, Julien Modica, MPH, MPP, and The Healing Heroes Network United States District Court for the District of Columbia, Case No: 1:2009cv00845, Filed May 7, 2009 (Attachment A).
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Respectfully submitted,

_________________________ Julien Modica, MPH, MPP Pro Se 4870 Sadler Rd Suite 300 Glen Allen, Virginia 23060 Office: 804-205-5199 Cell: 202-276-1174

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CERTIFICATE OF SERVICE Julien Modica, MPH, MPP states that on May 19, 2009 he served the within Reply Brief of the Appellant by U.S. Mail, postage prepaid, a true copy of the same to the following: Mr. Thomas Linn Eckert Office of the UNITED STATES ATTORNEY Western District of Virginia P.O. Box 1709 Room 906 Roanoke, VA 24008-1709 Kenneth R. Dilks 18 Stocker Drive Charleston, SC 29407 Phone: 843-763-1591 Mobile: 843-814-5600 Penelope H. Cralle, DDS 18 Stocker Drive Charleston, SC 29407 Phone: 843-763-1591 Crystal G. Lowery 2735 Four Winds Place Mt Pleasant, S.C. 29466 Phone: 843-388-0488 John Modica (Appellants Father) The Old House 3 West Street South Petherton, Somerset TA135DQ United Kingdom Phone: 011-44-146-024-0652

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_________________________ Julien Modica, MPH, MPP Pro Se 4870 Sadler Rd Suite 300 Glen Allen, Virginia 23060 Office: 804-205-5199 Cell: 202-276-1174

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