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Coram Nobis Response

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					                          IN THE UNITED STATES DISTRICT COURT
                         FOR THE WESTERN DISTRICT OF VIRGINIA
                                   ROANOKE DIVISION


UNITED STATES OF AMERICA,                           :
     Plaintiff/Respondent                           :
                                                    :
        v.                                          :        Criminal No. 7:93-cr-00091
                                                    :
JULIEN MODICA, MPH, MPP,                            :
(aka: JULIEN K. DILKS)                              :
       Defendant/Petitioner,                        :


    MODICA’S RESPONSE TO UNITED STATES’ RESPONSE TO JULIEN K. DILKS’
    A/K/A JULIEN MODICA’S FOURTH PETITION FOR A WRIT OF ERROR CORAM
                                  NOBIS


        COMES NOW, Julien Modica, pro se, and states the following as its response to this,

United States’ Response to Julien K. Dilks’ a/k/a Julien Modica’s Fourth Petition for a Writ of

Error Coram Nobis.1

                                              BACKGROUND

        The Coram Nobis Writ is not limited to persons serving under a sentence of conviction,

but is also used in order to vacate a judgment of conviction where the sentence has already been

served either by incarceration or by suspended sentence and the defendant wishes to expunge the

conviction from the record. The current practice in federal court is to proceed by notice of

motion together with accompanying petition setting forth the judgment of conviction together

with facts relied on, the errors contained, and a prayer that the judgment of conviction be

vacated. It should be noted that a motion for Coram Nobis is always heard by the sentencing

judge. In the instant case, this would be, The Honorable Judge James C. Turk (Senior Judge).


1
 Sanction for the use of Coram Nobis can be found in the all-writs section of the Judicial Code (28 USCA §
1651(a)) United States v. Morgan, 346 US 502, 511 (1954) pp 506-507.
           The Court of Appeals has stated the rule that a motion for Coram Nobis will lie only in

the court where the original judgment of conviction was rendered. The fact that a conviction has

been reviewed and affirmed by a higher court, either by appeal of writ of error, does not

preclude a subsequent Coram Nobis proceeding which is properly founded (Emphasis).

           The Court of Appeals held that when the defendant had raised an issue within the scope

of Coram Nobis and his contention had not been conclusively shown to be false by opposing

affidavits and documents, a hearing on the disputed issue should be ordered.2 The governments

attempt to describe Modica’s fourth Coram Nobis petition as a repeat of the previous three

petitions is absolute nonsense. Counsel misreads the Coram Nobis statute with regard to “newly

discovered” evidence. It makes absolutely no difference what so-called “alleged errors” had been

previously raised; each Coram Nobis petition is evaluated entirely on its own merits (Again, the

Court of Appeals has stated: “The fact that a conviction has been reviewed and affirmed by a

higher court, either by appeal of writ of error, does not preclude a subsequent Coram Nobis

proceeding which is properly founded”). Modica’s fourth Coram Nobis petition is in no way

similar to any previous filing. The government’s request for a prefiling injunction must be

summarily denied.

           The previous three Coram Nobis petitions – which are in no way similar, at all, to the

instant petition - have provided Modica with a stage in which to use the Judiciary as a public

policy making instrument. Simply put federal courts have the authority to declare both state and

federal legislation unconstitutional. Courts reach constitutional issues, however, only if they feel

it necessary. Modica wanted and still wants to encourage courts to feel this necessity.

Consequently, in Modica’s last Coram Nobis petition he tried to develop a legal standard in


2
    People v. Richetti, 276 AppDiv 1091, 1092, 96 NYS2d 355, 356 (1950).



                                                        2
which to evaluate a courts decision making process with regard to brain injury. In fact, in his

October 19th, 2010 United States Court of Appeals for the Fourth District - Petition For

Rehearing, Modica introduced “[t]he standard for the instant case and future cases involving

veterans with TBI/PTSD/Depression must involve two questions: (1.) is there an existing

treatment modality for the mental health condition affecting the defendant? (2.) is there an

appropriate guardian associated with the veteran with TBI/PTSD/Depression and if so, what is

their opinion? If the answer to the first and second question is no as is the case with Julien

Modica the court must make all determinations in a light most favorable to the veteran with

TBI/PTSD/Depression.”

       Here’s the point, final determinations of constitutional law are made by the Supreme

Court. Lower courts, by deciding federal constitutional questions, may force the Supreme Court

to exercise its appellate authority to either ratify or nullify the action that has already been taken.

Unfortunately, the cost to prepare and defend a U.S. Supreme Court petition is prohibitive and

Modica did not have the financial backing to take the next step. The instant Coram Nobis

petition purely argues the facts and has nothing, at all, to do with the formation of a legal

standard and the development of public policy.

       In 1994, Modica was improperly and illegally found guilty of Title 18, United States

Code, § 1344. However, Modica used this unfortunate circumstance to make positive changes in

American society with regard to how people with brain injury were treated, because, unlike

anyone he had ever met, he knew society’s responsibility for individuals with

TBI/PTSD/Depression would only increase in the very near future. Modica had recently met Dr.

George Zitnay (a long-time member of Senator Ted Kennedy’s staff and then President of NHIF)

and learned very quickly how the proper public policy surrounding the brain injury community




                                                   3
could make a positive difference. Gulf War I had just occurred and 9/11 would happen nine

years in the future.

        Unfortunately, Modica’s premonition has come true. Proof can be seen in Sunday’s

October 3rd, 2010 Washington Post article titled, “Erratic behavior is a telling sign of severe

TBI” the subtitle, “[i]t changes who we are” begins to describe how society and consequently the

U.S. courts will also have to change. Starting in 1994, Modica took it upon himself to formally

learn everything he could about medicine, public health, public policy, government and the law,

over a ten year period, before attempting to formally file any Coram Nobis petition. The U.S.

Attorney may be annoyed that Modica’s fourth Coram Nobis petition – completely unrelated to

the previous three petitions - exposes the shady internal workings of the U.S. Attorney’s office,

but it is not repetitive and it certainly is not meritless.

        In Brow, the court stated “[t]hus, a judge should not in any way limit a litigant's access to

the courts absent “exigent circumstances, such as a litigant's continuous abuse of the judicial

process by filing meritless and repetitive actions.” Brow v. Farrelly, 994 F.2d 1027, 1038 (3d

Cir.1993). Indeed, in Pavilonis, the court stated, “use of such measures against a pro se litigant

should be approached with particular caution” and should “remain very much the exception to

the general rule of free access to the courts.” Pavilonis v. King, 626 F.2d 1075, 1079 (1st

Cir.1980)

        Further, the courts have stated, “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 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,




                                                     4
as we have indicated and it will be for the trial judge to pass on all questions of fact, including

the credibility of the [defendant/petitioner] and of any other witnesses on either side.” People v.

Richetti 302 NY 290, 298, 97 NE2d, 908, 912 (1951).

        A mere claim of newly discovered evidence, however, in itself is not a basis for relief

under Coram Nobis; the petitioner must show that a fundamental error occurred, such that the

facts as alleged as grounds for its issuance are such that there is a reasonable probability that the

judgment of conviction would not have been rendered or would have been prevented had the

exculpatory evidence been disclosed at trial.3

                                                     DISCUSSION

        Contrary to United States Attorney Timothy J. Heaphy’s claim in his October 8th, 2010

Response, Modica does NOT repeat any of the arguments previously made. Quite simply, Mr.

Heaphy is overworked and, in fact, did not read any of Modica’s 2010 Coram Nobis Petition. For

instance, in defendant’s September 27th 2010 Coram Nobis pleading, Modica emphatically states

that, at trial, Mr. Eckert argued only one of two entirely different standards for prosecuting bank

fraud in violation of Title 18, United States Code, § 1344. When a member of the U.S. House of

Representatives violates Title 18, United States Code, § 1344, the government chuckles, smirks

and claims little harm was done to society and, therefore, their actions warrant no government

interference. When a naturalized American, U.S. Navy veteran, violates Title 18, United States

Code, § 1344, he is imprisoned for ninety days in a federal jail and branded a felon without the

right to vote or to hold public office.




3
 Coram Nobis has been discussed as a vehicle to bring certain matters to the attention of the court which, if known
at trial, would have prevented the rendition of the verdict.


                                                         5
         This double standard is true even when Dave Lesher and Glenn F. Bunting report in their

March 13, 1992 Los Angeles Times article,4 “Dannemeyer, Boxer Admit Kiting Checks” that,

“[s]o far, at least 10 California House members have admitted kiting checks, including Rep.

Duncan L. Hunter (R-Coronado), who said that in the last three years his account lacked funds to

cover at least 160 checks. Hunter is unrepentant, insisting that, in effect, he had paid for

overdraft protection at the House bank by putting $147 per month from his paycheck into a

scholarship fund for needy students.” Hunter said, “he averaged three to five overdrafts a month

at the House bank and had a similar overdraft rate for his personal account at the Bank of

Coronado.” Rep. Hunter’s own words are a contradiction. Hunter was kiting checks between the

Bank of Coronado and the House bank roughly every three to four weekdays for three years.

Rep. Hunter has been charged with no crime associated with the House Bank scandal. In fact,

Congressman Duncan Hunter still, in 2010, represents the same 52nd District of California as he

did in 1992 (See: http://hunter.house.gov/).

         Further, the thirteen worst offenders, those with 213 or more bad checks, were reelected

to their House Seats except for Sikorski (D-MN) with 697 bad checks and Oaker (D-OH) with

213 bad checks. “The worst offender among sitting members of the U.S. House was Robert

Mrazek (D-NY) who overdrew his House account 920 times [over a twelve month period],”5

kiting untold numbers of checks. Mrazek served on the House Appropriations Committee from

1983 (as a freshman member of Congress with special permission from the Speaker) to 1993

when he retired. Mrazek never faced charges for his criminal activities.



4
  This article and many just like it were written and published three to four months prior to Julien K. Dilks’ original
indictment; enough time had elapsed such that Mr. Eckert and the United States Attorney’s office was well aware of
what was going on in the U.S. House of Representatives.
5
  Cited in Charles Stewart III’s article, “Lets Go Fly a Kite: Correlates of Involvement in the House Banking
Scandal.” Published in Legislative Studies Quarterly, Vol. 19, No. 4 pp 521-535.


                                                           6
         According to Mr. Heaphy, the events described in the latter two paragraphs are

acceptable. Here lies the problem: a United States Attorney who has the Chutzpah to have these

beliefs - reminiscent of North Korea under the thunderous leadership of Kim Jong-il - is why

Thomas Eckert, Assistant United States Attorney, has managed to “get away with” his

aggressive prosecutorial style. In the instant case, the U.S. Attorney’s office demanded Mr.

Eckert prosecute Julien Modica. The fact remains that the government was embarrassed by the

“House Banking Scandal” and believed that because Modica’s, non-profit, JMA Foundation was

located at 1730 M Street, NW; Suite 903 in Washington, DC 20036, Modica represented the so-

called “Washington, DC mentality” just like sixty percent of the members of the U.S. House who

were involved in the House Bank scandal. However, Mr. Modica, in fact, despised and despises

this notion of the so-called “Washington, DC mentality” and was not part of it. Modica did not

have the money to mount an aggressive defense and, in fact, relied on court appointed counsel.

The Department of Justice recognized this weakness and ordered Tom Eckert to “do whatever it

takes” to get a conviction. Yet, as has been stated, “Republican” Rep. Hunter6 was kiting checks

between the Bank of Coronado and the House bank roughly every three to four weekdays for

three years without so much as a warning from the Department of Justice. Tom Eckert, therefore,

“knowingly submitted false information [and knowingly failed to submit accurate information]

to the [District Court]… that had a material affect on the [District Court’s] decision”.7

         Under immense pressure from the U.S. Attorney’s office, Tom Eckert violated the Fifth

Amendment to the United States Constitution, which is part of the Bill of Rights that protect

against abuse of government authority in a legal procedure. Thomas Eckert was forced to

commit a crime just so the U.S. Department of Justice did not look impotent. Julien Modica is

6
  Julien Modica was a declared candidate for the U.S. House of Representatives in 2010 (Virginia’s 10 th
Congressional District) on the Democratic ticket.
7
  Korematsu v. United States, 323 US 214 (1944)


                                                         7
the casualty. Julien Modica, MPH, MPP has been deprived of his liberty without due process of

law. And, that this interpretation of due process - the interpretation all Americans want to accept

- is expressed as a command that the government shall not be unfair to the people.

       The legislative branch of government - specifically, sixty percent of the United States

House of Representatives - should not be allowed to break the exact same law plaintiff has

accused the defendant of breaking and punish defendant, but not each relevant member of the

United States House of Representatives. This is a gross injustice, but this is precisely what Tom

Eckert did in 1994 on both July 17th and July 18th. Mr. Eckert argued that sixty percent of the

U.S. House of Representatives is able to kit checks at a rate of 40+ every work day over a twelve

month period without fear of becoming a felon; yet, the defendant is accused of kiting no more

than five checks over a twelve month period, but is punished with the full force of the law. There

is no question that defendant was not protected against the abuse of government authority in this

legal proceeding.

                                             CONCLUSION

       Therefore, the undersigned will move this Court at a Motion Term thereof, to be held at

Room No 2, in the United States Court House, Poff Building, in the City of Roanoke, States of

Virginia, on Wednesday October 20th, 2010 at 1:30PM for an order vacating and setting aside the

judgment of conviction entered the 17th day of October, 1994 and for such other and further

relief as may be just and proper.

       In the instant matter, the only relief possible for Julien Modica, after having his life

destroyed for nearly twenty years, is monetary relief. Hundreds of generous citizens in Virginia

and the surrounding Washington, DC Metropolitan area have helped Mr. Modica in one way or

another. They need to be repaid. Mr. Modica’s two young daughters, who have suffered




                                                 8
repeatedly for what their father had been accused, must be compensated. Finally, Mr. Modica,

himself, who has wanted all along to do just one thing and that is to give survivors and military

veterans diagnosed with brain injury a second chance at life, must be compensated for his lose. A

negotiated amount of 2.5 Million Dollars to compensate Julien Modica $150,000 for each of the

nearly twenty years he has been forced to live with a felony conviction is acceptable to all of the

above parties.

       Dated: October 14, 2010.

                                                     Respectfully submitted,

                                                     Julien Modica, MPH, MPP
                                                     Pro Se


                                                     _______________________________
                                                     President
                                                     Veteran HealthCare, Inc
                                                     1101 Connecticut Ave., NW
                                                     Suite 805
                                                     Washington, DC 20036
                                                     202-223-3572 (office)
                                                     202-223-3575 (fax)




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                                  CERTIFICATE OF SERVICE

       I hereby certify that on October 14th, 2010 I filed this response to Modica’s response to

United States’ response to Julien K. Dilks’ a/k/a Julien Modica’s fourth petition for a writ of

error Coram Nobis pursuant to the CM/ECF system and, as well, mailed a true copy of this

response, first class postage, to Tom Eckert at: P.O. Box 1709; Roanoke, VA 24008.



                                                             ________________________
                                                             Julien Modica, MPH, MPP




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Description: Here lies the problem: a United States Attorney who has the Chutzpah to have these beliefs - reminiscent of North Korea under the thunderous leadership of Kim Jong-il