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Supreme Court Petition

The following Petition for a Writ of Certiorari was submitted to the US Supreme Court. It was denied a hearing. Outrageous government conduct is covered up all the way up the chain of our Justice Department. That’s why the US Attorney’s offices are free to commit crimes to put innocent people in prison.

 

QUESTIONS FOR REVIEW

  1. Violation of petitioner’s 5th amendment rights of due process, both substantive and procedural.
  2. Violation of petitioner’s 4th amendment rights of unreasonable search and seizure.
  3. Violation of petitioner’s 6th amendment rights of trial by impartial jury and assistance of counsel for her defense.
  4. Violation of petitioner’s 14th amendment rights of loss of liberty and property without due process.
  5. Outrageous government conduct of:
    a.  Government agent perjury to grand jury.Failure to answer petitioner’s legitimate questions of law in
    b.  order to target her for prosecution.
    c.  Government incitement of petitioner’s criminally un-intended actions which they intended to then call criminal.
    d.  Creating criminal charges on actions that were not criminal
    e.  Perjury of government agent in trial testimony.
    f.  Confabulation by government of witness testimony through threats creating perjury by witnesses.
    g.  Government agents committing a criminal act of calling in a prescription for a confidential source, and then doctoring the discovery so it didn’t show as the criminal act it was.
  6. Inappropriate use by DOJ of interpretative rule in:
    a.  their denial of petitioner’s right to certification intentionally leading to their constructed criminal charges.
    b.  their use of “against public health and safety” as a catch-all phase without any concrete justification.
    c.  Their use of “outside the usual course of professional practices” without any concrete reasons or actions delineated.
  7. Collaboration with prosecution by petitioner’s attorneys and failure of those attorneys to meet their obligations to their client.
  8. Involvement of counsel for the petitioner in the action of petitioner’s communication with government witnesses after the trial.
  9. Involvement of District Court Judge in this conduct by:
    a.  Failure to respond to petitioner’s motion raising the issue of outrageous government conduct at the time of trial.
    b.  Failure to provide answer to pertinent question by jury during deliberations.
    c.  Failure to act on evidence of petitioner’s counsel’s involvement in the communications with witnesses after trial.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Fourth amendment–Unreasonable searches and seizures

Fifth amendment–Due process of law

Sixth amendment–Impartial jury; Have assistance of counsel for his defense

Fourteenth amendment—Depriving a person of liberty or property without due process

 

STATEMENT OF THE CASE AND REASONS FOR GRANTING THE PETITION

     Per U.S. v. Roth, deliberate perjury to the grand jury may result in dismissal of charges. Perjury was committed by DEA agent Steven Tomaziefski. By this perjury, the prosecutor intentionally misled the jury to assume intentional illegal activity was being committed by the defendant when it wasn’t. Mr. Tomaziefski also knowingly committed perjury during his testimony at the trial.

The grand jury testimony of the main witness of the prosecution–the doctor responsible for the prescribing for her patients, Dr. Kathleen Schultz–never made any claim of impropriety by the defendant in her grand jury testimony. It took a year or more of interrogation, probable threats, and grossly outrageous government conduct in creating Dr. Schultz’s testimony for the trial at which time, through government coercion, she perjured herself. In evidence of this, Dr. Schultz was scheduled to be a witness for the petitioner at the DEA hearing October, 2011, for the issuance of petitioner’s certificate. Because she had not yet been indoctrinated with her planted testimony by the prosecution, in preparation for the planned prosecution of the petitioner, the night before Dr. Schultz’s testimony she was given a letter informing her she was a government target. This was done by the prosecution to prevent Dr. Schultz’s truthful testimony to become public record. This is a gross miscarriage of justice, and outrageous government conduct.  If the petitioner was guilty of not Communicating with Dr. Schultz about the new patients for acceptance by her into her practice, that would have been a main point for the grand jury. But instead, because they had nothing to show the grand jury, they had to commit perjury through the government agent testimony to achieve the indictment. According to U. S. v. Black, “It is outrageous for government agents to engineer a criminal enterprise or to use excessive physical or mental coercion to convince an individual to commit a crime.

In U.S. v. Linda Sue Cheek, outrageous government conduct was rampant throughout as that was the only way to obtain a conviction because the petitioner was innocent. The government’s behavior was so outrageous that due process principles would absolutely bar the government from invoking due process to obtain a conviction. As stated in U.S. v. Russeli, the acts of the government have violated the consensus and exceeded the limit of what a free society can tolerate.

Due process represents a profound attitude of fairness between man and man and more particularly between the individual and government. Due process underlies all of the criminal-related provisions of the Bill of Rights. Due process embodies both the petitioner’s procedural and substantive rights. If the substantive rights of a defendant are removed or altered in a corrupt or evil manner, the perfection of process will ratify a corrupt result.

The substantive rights of the petitioner were violated by the withholding of the certificate by DEA agent Steven Tomaziefski. In Linder v. U. S., “Direct control of medical practice in the states is beyond the power of the Federal government. Congress therefore, cannot directly restrict the professional judgment of the physician or interfere with its free exercise in the treatment of disease. Federal power is delegated, and its prescribed limits must not be transcended even though the end seems desirable.” And in this case, the end is simply an abuse of Federal power in their attempt to stop even the legitimate treatment of pain in this country. In Hayman v. Galveston, “the right of a duly licensed physician to practice his profession is liberty and property within the meaning of the 14th Amendment to the Constitution.” Without a DEA certificate, a physician will not be approved by insurance companies, cannot work for the Veterans Administration, medical facilities on Indian reservations, cruise ships, or even volunteer organizations like Doctors Without Borders. According to Minnesota ex rel Whipple v. Martinson, “the statute exceeds the authority of the state in the exertion of its police power, in that it undertakes to regulate a lawful business in the manner prescribed in the statute, in violation of the 14th Amendment. By refusing to issue petitioner a DEA certificate, the Federal government attempted to prevent her from practicing medicine, therefore violating petitioner’s 14th Amendment rights.

In S. Rep No. 93-192 (1973), practitioners and pharmacies are automatically entitled to registration to handle drugs in Schedules II-V if they are authorized to dispense under the law of the state in which they practice. The House report [HR Rep No 91-1444 p. 23  (1970)] states “practitioners would be required to be registered, but registration would be as a matter of right where the individual is engaged in activities involving these drugs which are authorized or permitted under state law.”

According to U. S. v. Moore, registration of physicians is mandatory if the applicant is authorized to dispense drugs under the law of the state in which he practices. In the case of a physician this scheme contemplates that he is authorized by the state to practice medicine and to dispense drugs in connection with his professional practice. The federal registration, which follows automatically, extends no farther.

The CSA (1) in 21 U.S.C.S. §822 (a)(2) requires that physicians, to be allowed to issue prescriptions for Schedule II drugs, must register with the Attorney General.  (2) In 21 U.S.C.S. § 824 (a)(4), authorizes the Attorney General to deny, suspend, or revoke a registration that would be inconsistent with the public interest.  (3) 21 U.S.C.S. § 823 (f) requires the Attorney General, in determining consistency with the public interest, to consider five factors including a) a state’s recommendation  b) compliance with state, federal and local law regarding controlled substances, and c) public health and safety.  (4) in 21 U.S.C.S. §903, explicitly contemplates a role for the states in regulating controlled substances. There was no evidence presented to the DEA during the hearing or otherwise, that the medical care offered by the petitioner in 15 years of practice was inconsistent with public health and safety. On the other hand, as a consequence of the closure of the petitioner’s practice, 15 persons are known to be deceased, and there might be more that are unknown. It is petitioner’s charge that government action against petitioner was against public health and safety, not the petitioner. The indiscriminant involvement of the Federal government in medical care designated to the states causing the death of its citizens cannot be tolerated.

In 1971, the Attorney General promulgated a regulation [21 CFR §1306-04(a)] requiring that prescriptions for Schedule II drugs be used “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice”.  In 2001, the Attorney General issued an Interpretive Rule announcing that assisting suicide is not a “legitimate medical purpose. Gonzales v. Oregon challenged the Interpretive Rule and Supreme Court affirmed. In an opinion by Kennedy, joined by Stevens, O’Conner, Souter, Ginsburg and Breyer, it was held that the CSA did not authorize the Attorney General, through the Interpretive Rule, to prohibit physicians from prescribing drugs for use in suicide, notwithstanding the Oregon law as:

1) The Supreme Court (a) accorded the rule no deference under standard of substantial judicial deference and (b) instead, according the rule deference only under the standard that entitled an agency’s interpretation to respect only to the extent that the interpretation had the power to persuade.

2) The CSA manifested no intent to regulate the practice of medicine generally.

3) The Oregon regime was an example of the state regulation of medical practice that the CSA presupposed.

(Statement of the Case and Reasons for Granting the Petition, continued)

4) When Congress wished to regulate medical practice in the given scheme, Congress did so by explicit statutory language.

5) In the face of the CSA’s silence on the practice of medicine generally and its recognition of state regulation of the medical profession, it was difficult to defend the Attorney General’s declaration that the CSA implicitly criminalized physician-assisted suicide.

6) The Attorney General was an unlikely recipient of broad authority asserted in the Interpretive Rule, given a) the primacy of the Secretary of HHS in shaping medical policy under the CSA, and b) the CSA’s otherwise careful allocation of decision-making powers.

“In deciding whether the CSA can be read as prohibiting physician-assisted suicide, we look to the statute’s text and design. The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this; however, the stature manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism.” The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the state’s police powers.

The Supreme Court has the obligation, ne the responsibility to stop the flagrant use of abuse of power to regulate the practice of medicine today. The area of pain management involves two-thirds of America’s population. This is much more impacting on American citizens than physician-assisted suicide, and this is the case to review to see the extent to which the government will reach to achieve their goal and to create case law to stop this abuse of power.  In Parlton v. U.S., “the public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our [Supreme Court] consideration and protection.”

The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the state’s police powers. The very definition of a “practitioner” eligible to prescribe includes physicians licensed in the jurisdiction in which he practices. Further cautioning against the conclusion that the CSA effectively displaces the state’s general regulation of medical practice is the Act’s pre-emption provision, which indicates that, absent a positive conflict, none of the Act’s provisions should be “construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates…to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state.” The CSA’s substantive provisions and their arrangement undermine the assertion of an expansive federal authority to regulate medicine.

  1. R. Rep No 93-884, p. 6 preserves the distinctions found in the CSA between the functions of the Attorney General and the Secretary…All decisions of a medical nature are to be made by the Secretary…Law enforcement decisions are to be made by the Attorney General. Post enactment congressional commentary on the CSA’s regulation of medical practice is also at odds with the Attorney General’s claimed authority to determine appropriate medical standards.  “Nothing in the convention will interfere with ethical medical practice in this country as determined by [the Secretary] on the basis of a consensus of the views of the American medical and scientific community.”

In Linder v. U.S., (1) Congress cannot, under the pretext of executing delegated powers, pass laws for the accomplishment of objects not entrusted to the Federal government.  (2) Any provision of an act of Congress solely to the achievement of something plainly within the power reserved to the states, is invalid and cannot be enforced. “Obviously, direct control of medical practice in the states is beyond the power of the Federal government.”

The law does not undertake to prescribe methods for medical treatment. “We cannot possibly conclude that a physician acted improperly or unwisely or for other than medical purposes solely because he has dispensed… , in the ordinary course and in good faith.  What constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances.  In U.S. v. Doremus, “of course Congress may not in the exercise of Federal power exert authority wholly reserved to the states.”

Citizens look to government to provide security and safety without impinging on democratic values. Against the petitioner in this case, acts of the government or its prosecuting agents have violated the consensus and exceeded the limit of what a free society will tolerate.

In Sorrells v. U.S., the criminal acts were a “creature of the agent’s purpose”. The Court called the action a gross abuse of authority. Chief Justice Hughes concluded that to provide the opportunity to commit the crime is beyond reproach.  The government may not incite or create crime for the purpose of punishing it. “It is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offence of the like of which he had never been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it.” If the acts of the prosecutor offend the tribunal, the defendant may not be prosecuted. The Courts must be closed to the trial of a crime instigated by the government’s own agents. No other issue, no comparison of the equities as between the guilty official and the guilty defendant has any place in the enforcement of this overruling principle of public policy.

Pertinent to this case, the DEA instructs physicians to present any questions of law to the local DEA agent. Questions by the petitioner, while awaiting her DEA certificate that was supposed to be issued within 4-6 weeks of application, were stonewalled by Mr. Tomaziefski. The petitioner even went up the ladder through the DEA organization to Walter Staples, all the way to Washington, and her questions remained unanswered. In desperation, the petitioner finally wrote to Mr. Tomaziefski (letter on record), expressing her frustration at being stonewalled by the agency, not comprehending that she was being targeted and set up. In that letter the petitioner pointed out the truth–that she was attempting to do all things according to the law, and that if anything was being done that the government could possibly interpret as being against the law, it was the DEA agent and therefore the government responsible for any illegal action.

In VA, Pharmacy Bd. v. VA. Consumer Council, “information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Mr. Tomaziefski, in conspiracy with the U.S. Attorney’s office, withheld the information requested by the petitioner, knowing that by providing that information, the petitioner would not have engaged in the conduct under question. According to U. S. v. Twigg, when government agents sow the seeds of the crime to lure the defendant to commit the crime, the Outrageous Conduct defense is available. Also in U. S. v. Barrera-Moreno, government agents deliberately orchestrated the elements of the crime.

Per U. S. v. Jannotti, “A society cannot long remain free if we permit the law enforcer to offer more than an opportunity for transgression. A free society cannot and will not endure if it permits law enforcers to select people arbitrarily and then to proceed by deception to persuade, cajole, entice and implant a law-breaking disposition that was not theretofore present. When the defendant had absolutely no predisposition to commit a criminal act and, but for the inducement of the government agents, the criminal act would not have been committed, the acts of the government are improper and the judge should so rule.  A person corrupt by a process which only the authorities are licensed to use has been made into a criminal by his own government.” Such is the case in U.S. v. Linda Sue Cheek.

Throughout the trial, the prosecutor threw out the phrase “outside the course of professional practice” without any evidence, only opinion. This conduct prejudiced the jury, as planned by the prosecution. It appears to be common practice now for prosecutors to use this phase against physicians regardless of the fact that they have no evidence. It automatically reeks of “Bad Doctor”. In HR Rep No 91-1444, p. 14 Congress pointed out that “criminal prosecutors” in the past had turned on the opinions of federal prosecutors. Under the new Act, “those physicians who comply with the recommendations made by the Secretary will no longer jeopardize their professional careers”. In U. S. v. Moore, Dr. Moore was given the chance to change the practices considered “outside usual professional practice.” He admitted he failed to do so.  In Boyd v. U. S., the disputed question is whether the defendant issued the scripts in good faith in the course of his professional practice. The court instructed the jury that if they were issued in good faith “for the purpose of curing disease or relieving suffering”, the defendant should be acquitted. In the case of U.S. v. Linda Sue Cheek, the patients that the prosecution used to testify against the petitioner had been discharged from the practice–one based on a pill count and one based on a drug screen showing unprescribed drugs–showing good faith in her practice.

The use of Interpretive Rule declaring standard medical practice as “outside the course of professional practice” in the courtroom has to be stopped. By using Interpretive Rule this way, the Attorney General claims extraordinary authority. His power would include the greater power to criminalize even the actions of registered physicians whenever they engage in conduct he deems illegitimate. This power to criminalize–unlike his power over registration which must be exercised only after considering the five express statutory factors–would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority to deregister a single physician but to have given him, just by implication, authority to declare an entire class of activity outside “the course of professional practice”, and therefore a criminal violation of the CSA.  The problem with the design of the Interpretive Rule here is that it cannot, and does not, explain why the Attorney General has the authority to decide what constitutes an underlying violation of the CSA in the first place. The explanation the government seems to advance is that the Attorney General’s authority to decide whether a physician’s actions are inconsistent with the “public interest” provides the basis for the Interpretive Rule.

In Minnesota ex rel. Whipple v. Martinson, a physician, in order to be exempt to Harrison Narcotics Act, must dispense drugs to none but patients under medical or professional treatment, and keep records for two years. If these provisions are complied with, the physician has shown his desire to comply with the provisions of the law, and his good faith in the dispensing of drugs. In practically every jurisdiction, the Federal Courts have stressed and made the deciding factor in all cases against physicians the question of the good faith of the physician.  Did he dispense the drug to a bona fide patient, in the course of professional treatment? If that was the case in the 1920’s and no laws have been designed to the contrary, why is this not the case today?  The phrase “outside the course of professional practice” is being used by prosecutors without warrant or evidence, and with the “anti-opiate” beliefs today, becomes prejudicial against any physician in a courtroom.  This has become so commonplace and accepted among this pro-prosecutorial federal policy that prosecutors are even bragging in the media about turning away from prosecuting street drug pushers and going after physicians.  As a former U. S. Attorney explains in her presentation to physicians taking the pain management course offered at Case Western University in Cincinnati, “because that’s where the money is and the guns aren’t”.  That is no way to run our system of justice in this country, to base prosecution on confiscating physician income and assets.

In Jin Fuey Moy v. U. S., “manifestly the phrases ‘to a patient’ and ‘in the course of his professional practice only’ are intended to confine the immunity of a registered physician in dispensing narcotic drugs strictly within the appropriate bounds of professional practice, and not to extend it to include a sale to a dealer or a distribution intended to cater to the craving of an addict.”

All prescriptions charged to the defendant as “using another doctor’s DEA number” had been ordered by Dr. Schultz based on phone presentation of the patient, a practice done throughout the medical profession. The oral evaluation of a patient by one physician from presentation by another in their practice is not “outside the usual course of professional practice”.

According to the definition of a “doctor-patient relationship” in the Commonwealth of Virginia, a doctor has a relationship with a patient of another doctor in her practice or a consulting physician. It is through that definition that doctors on call can treat patients they have not personally seen, or doctors that treat new admissions to facilities by phone contact. So by the definition Dr. Schultz had the doctor-patient relationship necessary to order medications to prevent bodily harm to patients until she could see them personally.

In U. S. v. Nations, if the defendant was a passive actor in the crime who has been pre-Twigg, the indictment will be dismissed.  The petitioner was a passive actor, as she was following orders of the doctor in charge, under the incitement of the government agents.

Notwithstanding the legality of their actions, the petitioner still queried the Attorney General’s agency but received no response. Without knowledge of even the possibility of it being considered wrongdoing, and without the chance to correct the action, the petitioner cannot be charged with criminal conduct. This is especially true in light of the petitioner’s own action changing the behavior of which she was charged, twice on her own, first telling Dr. Schultz she had to see all patients, (as Dr. Schultz’s instructions were that she would only see those patients being prescribed Schedule II drugs), and finally that she would have to call in the prescriptions herself. It was at that point that the U. S. Attorney’s office brought charges against the petitioner–when the actions they were considering criminal had been voluntarily stopped by the petitioner on her own. By that action, and one further action to be described later, the prosecution shows itself to be interested in only accumulating charges for the purpose of media attention, promotion, or some other self-advancing motive, rather than protecting citizens from being victimized by a criminal. There are no victims here except for the petitioner herself.

It was in total disregard for the law and abuse of power that the government, through its prosecutorial misconduct and illegal direction of Mr. Tomaziefski that he responded to Dr. Schultz’s direct question of whether we should continue or stop the protocols and procedures we were using, or stop what we were doing, and Mr. Tomaziefski stated on tape for us to “continue what we were doing”. By that statement and his failure to respond to the defendant’s questions by phone, in person, and by letter that the government must take full responsibility for any illegal conduct in the evaluation of Dr. Schultz’s patients by the petitioner.

In Sherman v. U.S., the Federal Courts have an “obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice.” At stake is the integrity of the process. It is the responsibility of the Court to protect our citizenry from such prostitution of the law. To do otherwise would undermine the Court’s standing as administrators of justice. If the acts of the authorities are so reprehensible, the problem transcends the individual defendant. The Courts would become corrupted by a process that is the fruit of corrupt government methodology.

As stated in U.S. v. Russeli, by Justice Rehnquist, “we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction. Such is the case in U. S. v. Linda Sue Cheek. Having never had success with sending in an informant to receive controlled substances in at least six tries, the government took the responsibility on themselves of calling in a prescription of controlled substances for one of their confidential sources, and a charge in this case.  Since no one in the U.S. Attorney’s office had an order from a physician to do this, it was an illegal act of the level of Outrageous Government Conduct. Again, this action on the prosecution’s part demonstrates pure disregard for the laws of the land, and an abuse of power in thinking they can break the law without punishment.

In Greene v. U.S., government involvement in the operation of an illegal act precludes conviction. In Olmstead v. U.S., decency, security and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen. So for inciting what the prosecution considers illegal action, and by committing the illegal act of calling in a prescription under a doctor’s name, the investigation agents and prosecution should be held accountable and charged with criminal conduct. Government teaches by example. If the government becomes a lawbreaker it breeds contempt for the law. It breeds anarchy. To declare that the government may commit crimes in order to secure a conviction would bring terrible retribution.

According to Hampton v. U. S., if the government acts are of greater offensiveness than those of the defendant, the defense of Outrageous Government Conduct is available. In the case of U. S. v. Linda Sue Cheek, the only criminal act–the calling in of a prescription not ordered by a physician with the authority to do so, was committed by a government agent working under the orders of the U. S. Attorney.

As to Burden of Proof, the “evidence developed” against a defendant must come from the witness stand. There was no evidence whatsoever from any witness or documents that the petitioner knowingly and willingly wrote prescriptions of controlled substances without a DEA certificate. In fact, evidence shows that two of the prescriptions charged against the petitioner were stopped by the petitioner once the mistake was identified, and they were never filled. According to U. S. C. 21, there must be an exchange of script for pills, and that never happened. The location of the witness to a third prescription charged to the petitioner was withheld by the prosecution during discovery, so his testimony for the defendant telling him not to fill the prescription was also intentionally withheld by the prosecution. As to the fourth prescription, the prosecution’s own witness, a pharmacist trained in the nature and schedules of medications, stated on the witness stand that he did not know the schedule of Lortab, a very commonly prescribed opiate. But the prosecution stated in closing (purely opinion, but knowing that the jury would consider it as fact) that the petitioner must have known that the medication in question (Lyrica) was controlled simply because she was a physician. But there was no proof offered during testimony.

The last prescription was accidentally signed simply because of the number of prescriptions issued to the patient, and it was mistakenly printed and simply caught up in the batch. The petitioner did not even know about it until after the charges had been filed.

Another question for the Supreme Court to review is the wiring of one physician for conversations with another physician during the course of their practice. Boyd v. U.S. questions this in the area of search or seizure compelling a defendant to be a “witness against herself”. Also, in the area of medical treatment, confidentiality is paramount. In order to provide the best medicine for the patient, a doctor needs to be confident that their professional communications are confidential. Does the action of wiring associates in practice cross the bounds of invading professional conversation that could alter possible patient care in the future if doctors do not consider their conversations to be confidential with their peers?  This is especially relevant when, by this case, it is obvious that the government does not understand the mechanics of coverage of patients by temporary personnel such as locum tenens physicians.

In the course of Court review of this case, the petitioner also wants to present under Outrageous Government Conduct the collaborating conduct of her two public defenders, both for the trial and for the appeal to the Circuit Court. Not having the benefit of an attorney for this petition however, and not having access to the necessary case law, the case studies for defense attorney collaboration with prosecution is lacking. However, Strickland v. Washington does say that the 6th Amendment right to counsel is violated if the trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission. An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform research on that point is a quintessential example of unreasonable performance under the Strickland rule. The selection of an expert witness is a paradigmatic example of the type of strategic choice that, when made after thorough investigation of the law and facts, is virtually unchallengeable. Collaborating conduct of the trial attorney includes lies about use of expert witnesses, recommendation that the petitioner not testify, refusal to show evidence of petitioner’s phone records showing communication with Dr. Schultz about prescriptions that would have refuted the only testimony against the defendant, and then recommendation of attorney to contact Dr. Schultz and April Yopp after the trial but before sentencing.

The conduct of both the trial and the appeals lawyers shows collusion with the prosecution in that both lawyers were made aware of the illegal activity of the prosecution, as well as the Outrageous Government Conduct, and they did nothing. This would have been a matter to go straight to the Supreme Court, bypassing Circuit, because of the far-reaching potential this case has on future prosecution of innocent civilians, in particular, physicians. Instead, both defense attorneys worked toward a guilty verdict for an innocent citizen. It is petitioner’s charge that the system of defense in this country is warped. No one in the Justice System is interested in justice, but only making money now and in future cases. The prosecution of doctors has become big business, for law enforcement, prosecutors, and defense attorneys. No one is honest enough or with enough conviction to stop the gravy train. Being a victim of this, I even question the conviction of administering justice at the Supreme Court level. I invoke you to apply the actual innocence standard as in Schulp v. Delo, where evidence shows “it is more likely than not that no reasonable juror would have convicted the petitioner based on the “clear and convincing evidence available. The clear and convincing evidence is in the possession of the U. S. Attorney. The Supreme Court needs to impound all of the evidence from the trial for review for the criminal activity committed by the government and its agents. Evidence about this on the testimony of Mr. Tomaziefski will also incriminate him for perjury.

Petitioner also charges the prosecution with jury tampering. The week before the petitioner’s trial, the petitioner charges the prosecution with involvement in the “timely” broadcast of 2 15 minute

segments on 2 different nights on the local area Channel 7 news that incriminated doctors in the cause of drug abuse in Southwest Virginia and West Virginia. This could easily have swayed the jury decision in this case, because there was no direct evidence of any criminal activity by the petitioner during the trial. And in the end, the jury even found the petitioner innocent of committing a criminal act in her office, even though they found her guilty of all of the drug charges. That would demonstrate prejudice simply against doctors who use opiates for pain. Although the petitioner was not the doctor of record for the prescriptions, and there was no evidence she was responsible, she was found guilty.

Prosecutors should not be allowed to fabricate and lie on a request for a search warrant. The information presented to the magistrate should be fact. In this case, the entire search warrant was bogus, as to the charges levied against the petitioner. This is a violation of petitioner’s 4th Amendment rights. By this flagrant abuse of authority, the government can invade the private domain of anyone in this country that they choose. This has to be stopped. Government is supposed to be of the people, by the people, and for the people, not for the government’s own monetary interests. This breeds anarchy. Per Walder v. U.S., “the government cannot violate the 4th Amendment…namely through its agents…and use the fruits of such unlawful conduct to secure a conviction.” “All these methods are outlawed, and convictions obtained by means of them are invalidated, because they encourage the kind of society that is obnoxious to free men.”

Also, the conduct of Judge Conrad should be reviewed in this matter, as he sustained attorney objection to the evidence of her involvement in the communication with the witnesses after the trial, possibly also incriminating himself in the collaboration with the prosecution.  Petitioner also asks the Court to review the decision of Judge Conrad to not give the jury a definition of the word “intent” when the jury asked for a definition during deliberation.

Finally, the petitioner would like to address the breech of her constitutional rights to have an attorney in this matter before the Supreme Court. It is outrageous that an innocent citizen should have to prepare something as important as a petition for a Writ of Certiorari for Supreme Court review of a case of this magnitude with such reaching proportion of government abuse and outrageous conduct without the benefit of counsel. This needs to be addressed by the Supreme Court, as I am sure there are large numbers of innocent prisoners that simply did not have the personal ability to do something like this on their own and therefore suffered at the hand of government misconduct.

CITATIONS                                                                                                 

 Boyd v. U. S., 70 L. Ed. 857, 271 U.S.104                                                                                                 

Gonzales v. Oregon, 163 L. Ed. 2d 748, 546 U. S. 243

Greene v. U.S., 454 F. 2d 783 (9th Cir. 1971)

Hampton v. U.S., 425 U. S. 484, 96 S. Ct. 1646 48 L. Ed. 2d 113 (1976)

Hayman v. Galveston, 71 L. Ed. 714, 273 U. S. 414

Jin Fuey Moy v. U. S., 254 U. S. 65 L. Ed. 214

Linder v. U. S., 69 L. Ed 819, 268 U. S. 5

Linder v. U.S, 268 U. S. 5, 18, 69 L. Ed. 819

Minnesota ex rel Whipple v. Martinson, 65 L. Ed. 819, 256 U. S. 40

Olmstead v. U.S., 486 F. 2d 674-5

Parlton v. U. S., 64 App. DC 169, 75 F (2d) 772

Schulp v. Delo, 513 U. S. 329 115 S. St. 851, 130 L. Ed. 2d 808

Sherman v. U. S., 356 U. S. 369, 785 Ct. 819, 2. L. Ed. 2d 898 (1957)

Sorrells v. U.S., 287 U. S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932)                                                      

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed 2d, 674

U. S. v. Barrera-Moreno, 951 F. 2d. 1089 (9th Cir. 1996)

U. S. v. Black, 733 F. 3d 294 (9th Cir. 2013)

 U. S. v. Doremus, 63 L. Ed. 493, 249 U. S. 86

U. S. v. Jannotti, 673 F. 2d 578 (3rd Cir.) 815

U. S. v. Moore, 46 L. Ed. 2d 333, 423 U. S. 122

U. S. v. Nations, 764 F. 2d 1073 (5th Cir 1985)

U.S. v. Roth, 777 F. 2d 1200 (7th Cir., 1985)

U. S. v. Russeli, 411 U. S. 423, 93 S. Ct. 1637, 36 L. Ed 2d 366 (1973)

 U. S. v. Russeli, 411 U. S. 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366

U. S. v. Twigg, 588 F. 2d 378, 379 (3rd Cir, 1978)

VA. Pharmacy Bd v. VA. Consumer Council, 425 U. S., 770, 96 S. Ct. 1817, 48 L. Ed. 2d 346

Walder v. U.S., 347 U. S. 62, 98 L. Ed. 503, 74 S. Ct. 354

 

 

 

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