Upload
abraham-bolden
View
147
Download
0
Embed Size (px)
Citation preview
1
THE RESURRECTION OF
Dred Scott
In March of 1857, the United States Supreme Court, led by Chief
Justice Roger B. Taney, declared that all blacks -- slaves as well as free
-- were not and could never become citizens of the United States. The
court also declared the 1820 Missouri Compromise unconstitutional,
thus permitting slavery in all of the country's territories. That was 158
years ago. Since that time, African Americans have marched and cried,
fought and died, but all attempts to secure Freedom Justice and
Equality in America have proven to be unattainable. The reason is
because Dred Scott is not dead and the superiority attitudes of White
America have not been altered in the least. The only difference now is
that behind the promises of a civil rights bill, an equal employment bill,
an open occupancy bill, along with other accommodations that give the
illusion of progress, the fact of the matter is that our Judicial System,
police administrators, and correctional and prison systems operate
upon one belief and that conviction is that Blacks or African American
Americans are not and can never become true citizens of the United
States of America. I Abraham W. Bolden, Sr. bear witness before the
2
Almighty God that the disease of White superiority and the status of the
“Negro” in the American judicial system have not changed. The
opinion of the Dred Scott decision has not been abolished in our
Municipal, State, or Federal Judiciary systems.
Abraham Bolden is an African American and was born to Daniel
and Ophelia Bolden in East St. Louis, Illinois on January 19, 1935. He
attended Lincoln High School and, upon graduation, entered Lincoln
University in Jefferson City, Missouri. Later, Bolden married his long
time friend and schoolmate, Barbara L. Hardy (Bolden) to whom he
was married for 49 years prior to her death. To that marriage were
born 3 children, Ahvia Maria Bolden (Reynolds), Abraham Bolden Jr.,
and Dr. Daaim Shabazz. Bolden has two grandchildren, Ismail and
Cydni Bolden.
Bolden attended public schools in East St. Louis, Illinois and was
graduated from Lincoln High School in June, 1952. Because of his
proficiency in playing the trumpet, he received a scholarship to Lincoln
University in Jefferson City, Missouri and was graduated “cum Laude”
in June of 1956 with a BA in Music Composition.
3
After graduating from Lincoln University, Bolden decided to
enter the field of law enforcement. He subsequently became the first
African American Detective to be employed by the Pinkerton National
Detective Agency. After leaving the detective agency, he served as a
State Highway Patrolman in the State of Illinois. Continuing to advance
in the field of police work, Bolden became a member of the United
States Secret Service in October 1960.
Bolden met President John F. Kennedy in Chicago , Illinois and,
after a brief conversation with Bolden, President Kennedy was
instrumental in making Bolden the first African American to be
assigned to the Secret Service White House Detail in Washington , D.C.
Bolden traveled with the President; but he became disenchanted
with the assignment when his fellow agents used racial slurs in his
presence and engaged in a pattern of conduct that, in Bolden's
professional opinion, endangered the life of the President.
After President John F. Kennedy was assassinated and after
having previously discussed his complaints of secret service
misconduct with the Chief of the U.S. Secret Service and his immediate
superiors to no avail, Bolden threatened to divulge information
concerning the President’s lack of proper security to officials who were
4
investigating the President’s death. Bolden was whisked out of
Washington, D.C. under a pretext, returned to Chicago whereupon he
was hastily arrested by high administrators within the secret service
who charged Bolden with the commission of a federal crime.
After two incredibly unfair criminal trials, Bolden was convicted;
however, the case against Bolden began to fall apart when one of the
witnesses, Joseph Spagnoli, who testified against Bolden, confessed that
he and another witness, Frank William Jones, concocted and fabricated
the criminal case against Bolden with the help of an Assistant United
States Attorney. In spite of Spagnoli’s confession and the government’s
refusal to deny the charges levied by Spagnoli, Bolden was sent away to
the penitentiary. Bolden feared that in order to further discredit him, at
some point during his confinement, the government would attempt to
have him declared insane.
Bolden was subsequently sent to the prison camp at the
Springfield Medical Center for Federal Prisoners. Following an
argument with one of the psychiatric patients, Bolden was held in
solitary confinement in the psychiatric ward where he was forced to
ingest a psychotropic drug. Julius Nicholas, the Chief Parole Officer at
the center, was the impetus behind the governments’ attempt to have
5
Bolden declared insane. The scheme to declare Bolden insane was
unsuccessful and Bolden was paroled in September of 1969 after serving
three years and three months in federal confinement.
After being released from prison, Bolden established himself as a
master at quality control administrative procedures in various
machining and metal fabricating companies in Chicago. He retired
after serving 35 years in quality control supervisory positions.
For his tireless efforts in the pursuit of justice and equity before
the law, Bolden has been the recipient of the 2008 Scottish Hugo’s
Companion Tankard Award for Courage, the 2008 African American
Arts Alliance Award for Excellence, the 2008 Alpha Phi Alpha Award
for Courage, the 2015 Oakland Pen Award, The East St. Louis Council
of Mayors Award, The Lincoln University Distinguished Alumni
Award, and The 2016 Marion Ohio Black Heritage Award He has been
cited by the National Urban League as one of America’s Outstanding
Black Men.
6
Abraham Bolden, Sr.
7
8
STATEMENT OF THE CASE
Abraham W. Bolden, Sr., hereinafter referred to as the Petitioner in this
cause before this Honorable Court, hereby makes motion and moves
this Honorable Court to expunge the conviction of Petitioner in United
States vs. Abraham W. Bolden, 64CR324.
This motion is predicated upon extraordinarily flagrant violations of
Petitioner's constitutional rights to a fair and impartial trial and equal
protection of the laws as guaranteed by the Constitution of the United
States of America for all freeborn and accepted citizens. Moreover, this
Honorable Court, being located in the district in which the original
cause was first brought, has the power, authority, and duty to hear
evidences and to rule upon evidences of gross violations of Petitioner's
rights under the Constitution of these United States and to make
advisory or legal decisions as this Honorable Court may deem
appropriate. The Petitioner's allegations are:
(1) That the Petitioner did not receive a fair trial by a fair and impartial
jury in direct violation of the Constitution of the United States of
America;
9
(2) That the Petitioner was denied the right to be present at all stages of
a federal criminal proceeding;
(3) That the office of the United States Attorney procured, suborned
and permitted perjured testimony in Petitioner's trials in violation of
the Constitution of the United States of America;
(4) That special evidentiary rules of criminal procedure were enforced
by the Trial Court in order to facilitate the conviction of the Petitioner
in violation of the Due Process Clause of the Constitution of the United
States of America;
(5) That all of the above allegations are supported by the Official
Transcripts of United States vs. Abraham W. Bolden, 64CR324, and
United States vs. D'Antonio, 64CR300.
STATEMENT OF FACTS
This case was commenced by an indictment which was returned against
Petitioner on or about May 21, 1964 while Petitioner was a Secret
Service Agent for the United States Government. The indictment
charged Petitioner, with (a) soliciting money as a Secret Service Agent
in return for disclosing information which had come to Petitioner as an
10
agent in violation of Section 201 of Title 18 of the United States Code
(Count I); (b) with obstructing justice by disclosing information known
to Petitioner in an official capacity as a Secret Service Agent in violation
of Section 1503 of Title 18 of the United States Code (Count II); and (c)
conspiring with one Frank Jones, an unindicted coconspirator, to solicit
a thing of value in violation of Section 201 of Title 18 of the United
States Code and to obstruct justice in violation of Section 1503 of Title
18 of the United States Code, all in violation of Section 371 of Title 18 of
the United States Code (Count III).
The Petitioner graduated "cum laude" from Lincoln University in
Jefferson City, Missouri, and was the first African American Special
Agent of the Pinkerton National Detective Agency. After having served
three and one-half years as an Illinois State Police patrolman and vice
investigator, Petitioner joined the United Stated Secret Service in
October, 1960. In June 19.61, Petitioner became the first African
American Secret Service Agent assigned to the Presidential White
House Detail during the Presidency of John F. Kennedy. This
appointment arose by virtue -of a personal conversation between the
late President Kennedy and Petitioner on April 28, 1961 in which the
11
President promised to rectify the lack of an African American on the
elite White House Detail.
In 1962, Petitioner placed alleged co-conspirator Frank Jones, a twice
convicted felon, under arrest for counterfeiting United States currency.
Jones was subsequently indicted on this charge, but the indictment was
dismissed by the Office of the United States Attorney. However,
Petitioner continued to monitor Jones' actions through informants and
personal observation which culminated in Petitioner's arrest of Jones a
second time on April 5, 1963 on a charge of counterfeiting currency.
During the second arrest and in execution of a search warrant of Jones'
home, the counterfeiting printing press, counterfeiting plates, inks, and
negatives were seized by the Petitioner, Special Agent in Charge, John
Hanley, and other secret service agents conducting the search. Jones'
automobile was also seized as it had earlier been determined to have
been used in the passing of counterfeit currency.
Frank Jones was indicted by a Grand Jury a second time. Six other
persons affiliated with Jones' counterfeiting network were also indicted;
However, during the interim between April 5, 1963 and January 27,
1965, Frank Jones testified as a witness against Petitioner who was
found guilty on August 12, 1964 of charges leveled against Petitioner by-
12
Jones. The case against Jones and six co-conspirators in the Jones case
was dismissed, by motion of the Government, on January 27, 1965.
ARGUMENT
(1) The Petitioner did not receive a fair trial by a fair and impartial jury
in violation of the Constitution of the United States of America.
A. On or about July 11, 1964 after the presentation of all evidence
and-arguments were completed by both the United States Attorney and
the defense attorney at the conclusion of Petitioner's first trial, the Trial
Judge, the Honorable J. Sam Perry, read to the jury the prepared
instructions as to the law. The jury was then released to an anteroom
within the courtroom for deliberation. The jury, after deliberating for
several hours without reaching a unanimous verdict was summoned
back into the courtroom at which time the so called "Allen charge" was
read to the jury. After giving the "Allen charge," the Trial Judge stated
to the jury:
"Now, ladies and gentlemen of the jury, I will exercise a prerogative
which I have as a Judge, which I rarely exercise. I will express to you
and comment upon the evidence. In my opinion, the evidence sustains a
verdict of guilty on Counts 1, 2, and Count 3." (TR. 6, First Trial,
July11, 1964)
13
After issuing this statement as to Petitioner's guilt to the jury, the jury
was remanded to the jury room for further deliberations instructing the
jury that they could disagree with him but that they should take his
instruction as part of the juror’s deliberations.. -
It is the contention of Petitioner that any statement as to Petitioner's
guilt by the Trial Court, to a deliberating jury for the purpose of
tainting, swaying, or coaxing that jury to agree in favor of the
Government, was a violation of Petitioner's constitutional, human, and
civil rights to a trial by an impartial jury as guaranteed by the Sixth
Amendment of the Constitution of these United States of America.
Petitioner does not challenge the power of the court to overturn a
verdict not based upon the law or the evidence, or to comment upon the
evidence; However, Petitioner, with all due respect for the courts of this
land, does question the propriety of any person to draw conclusions of
what the evidence shows and then impart such conclusions to a
deliberating jury for consideration. Such prompting and coercive
conduct by the Trial Judge was in severe conflict with the constitutional
guarantee of a trial by a fair and impartial jury, which cannot legally be
denied any freeborn and accepted citizen of these United States of
America.
14
The Trial Judge's opinion was given after the evidentiary and argument
phases of the trial were completed. The Trial Judge's opinion of the
guilt of the defendant Petitioner was weighed by the jury as new
evidence of Petitioner's guilt, thereby casting the highly influential and
respected Trial Judge in the roll as a Government rebuttal witness for
the prosecution against Petitioner, and removed any likelihood that
Petitioner would be found innocent contrary to the highly regarded
Trial Judge's expressed opinion of the guilt of Petitioner.
And Petitioner further notes, and asks this Honorable Court to take due
cognizance of the fact that over the past thirty years there have been
many trials of persons accused of the most hideous of crimes.
Congressman have been tried on charges of bribery; aldermen have
been brought to trial on charges of bribery, and judges have been
brought before the bar for charges ranging from bribery to the "fixing"
of cases before the bar; Yet, in not one case before any court in this
land, that has received wide publicity, has a Trial Judge delivered an
opinion of a defendant's guilt to a deliberating jury. Why then has this
judicial prerogative only been used against an African American Secret
Service Agent over the past thirty years? The United States Constitution
or the Federal Rules of Criminal Procedure do not give any person the
15
prerogative to abrogate or to nullify the right of trial by an impartial
jury to any freeborn and accepted citizen of these United States of
America in any federal criminal proceeding. The proof of this act of a
denial of such a fundamental constitutional guarantee by a Federal
District Judge should constitute grounds for the expunging of any
conviction of the accused in the court in which such denial occurred.
(2) The Petitioner was denied the right to be present at all stages of a
federal criminal proceeding.
A. On or about August 11, 1964, a second jury was in deliberation
after having heard the presentation of the evidence and conclusion of
arguments in a second trial of Petitioner that commenced on August 3,
1964. This second trial was held in the same courtroom under the
auspices of the same Trial Judge (a change of venue was denied by the
Trial Judge) who had previously expressed his opinion of Petitioner's
guilt to the first jury. After being given the charge by the Trial Judge at
approximately 11:00 a.m., the jury was sent into the jury room for
deliberation.
At approximately 5:30 p.m. on August 11, 1964, the Trial Judge
summoned the prosecuting attorneys, Petitioner's attorney, George
Howard, and the Petitioner before the bench for a conference. The jury
16
was not a party to or represented in the conference and continued to
deliberate in the jury room unaware that a conference was in progress.
The judge stated that it had been a long day and he (the Trial Judge)
was tired and was going home for the day. The Trial Judge further
announced that he was closing the courtroom and that everyone would
have to leave the building except the jury who would continue to
deliberate under the charge of a U.S. Deputy Marshall. In event of a
verdict, the Trial Judge stated, the verdict would be sealed by the jury,
and the court would re-convene at 9:00 a.m. on August 12, 1964.
Petitioner, Petitioner's attorney, along with Petitioner's wife, brother
and several friends were all escorted, by a deputy marshal, out of the
building and the doors were securely locked behind them, as the
building was officially closed at that time. No person associated with the
prosecution including secret service agents who had offered testimony
against Petitioner were compelled to leave the Federal Building then
located at 219 South Dearborn.
At about 10:00 p.m., after having been escorted from the Federal
Building, Petitioner and his family heard a special broadcast over
WBBM all news radio station, stating that the Bolden jury had reached
17
a verdict and that the Trial Judge had released the jury until 9:00 a.m.,
August 12, 1964, at which time the sealed verdict would be read.
The Petitioner contends that to exclude Petitioner or Petitioner's
attorney from the courtroom while the jury was in active deliberation
was a gross violation of Petitioner's right to be present at all stages of a
federal criminal proceeding. This is especially so since (a) no persons
from the opposing side were excluded and (b) the Trial Judge
overseeing the jury had previously exercised a prerogative extremely
damaging to Petitioner's right to have the issues of Petitioner's trial
adjudicated by a fair and impartial jury.
Note: Below are copies of the Judge’s orders relating to the sealed
verdict and other actions to be taken by the deliberating jurors. These
orders were purportedly written by The Honorable Judge J. Sam Perry
during the active deliberation of the jury. (5:30 p.m.) There are no
records or transcripts that can be discovered as to when, how, or by
whom these “Instructions” were related to the deliberating jurors who
were not present when the decisions made by the court were discussed.
There is a “missing” page in the official transcripts between the final
official instructions in open court and the verdicts returned by the jury.
18
19
20
Since the lawfully impaneled jury was not present during the court
room conference wherein the decision was made to seal the verdict, and
according to the records and transcripts of August 11, 1964, no
instruction or mention of a sealed verdict or other instruction bearing
upon the disposition of the verdict was given by the Trial Judge in open
court in the presence of the Attorney for Petitioner or Petitioner, the
legal and constitutional questions are raised as to (1) when the jury was
advised to seal the verdict, (2) by whom was the jury advised to seal the
verdict and (3) why was it necessary to inform the jury of their legal
procedural formalities outside the presence of Petitioner and his counsel
who were locked out of the court building by order of the sitting judge?
The Trial Judge had previously acted as both prosecutor and witness
against Petitioner by urging an earlier jury to find Petitioner guilty.
With the removal of Petitioner and his counsel from the court building
and leaving a deliberating jury under the charge of a deputy marshal,
for directions as to the disposition of the verdict, is a violation of
Petitioner's constitutional right to a fair trial and due process of the
laws. Such a profound neglect of constitutional fairness as exhibited, on
the record, by a Trial Judge should move this Honorable Court to
expunge the conviction of Petitioner.
21
(3) The Office of the United States Attorney procured, induced,
suborned and permitted perjured testimony in Petitioner's trials in
violation of the Constitution of the United States of America.
A. Joseph Spagnoli and Frank Jones were the two chief Government
witnesses against Petitioner. At the time of Petitioner's trials, both Jones
and Spagnoli were under federal indictment for the counterfeiting of
United States Treasury Notes. In essence, Jones testified that Petitioner
asked him to approach Spagnoli for the purpose of inducing Spagnoli to
purchase the Spagnoli counterfeiting file of the secret service for
$50,000. According to Jones, Petitioner gave Jones an onion skin
excerpt bearing a paragraph from the Spagnoli file (no onion skin
excerpt was ever introduced into evidence by the Government
prosecutors) . Jones alleged that Petitioner also gave Jones a very poorly
typed copy of the onion skin excerpt during a conversation with
Petitioner on May 11, 1964. (Government Exhibit 6, TR. 245-284), U.S.
vs. Bolden, 64CR324.
22
Exhibit #6-Allegedly typed by Bolden and given to Jones
“Later, Zaccagnini stated that Spagnoli asked Vito Nitti in the presence of Zaccagnini, if he wanted to use a Greek name on some bonds and Vito Nitti said Yes. Spagnoli said he would have Mikey (Identified as Panteas) go with him. The next day at Spagnoli's house Joe Spagnoli told Zaccagnini that Nitti wanted to take his restaurant partner along. Spagnol said he would make up identification for Vito Nitti and Har Spagnoli gave $8,000 in bonds to Nitti according to Zaccagnini”
The above is a verbatim copy of the excerpt as appeared in the summary report. This copy was forwarded to Mr. J. Miller, Jr. Assistant Attorney General, Criminal Department of Justice by the U.S. Secret Service on June 23, 1964 as being the Paragraph labeled Exhibit #6 introduced into evidence by the government during my trials.
23
According to Jones, Petitioner gave him excerpt Exhibit #6 with the
request that Jones deliver the excerpt to Spagnoli for the purpose of
demonstrating to Spagnoli that Jones could perform his promise
(fingerprint analysis by the Government pertaining to Exhibit 6
revealed that Jones' and Spagnoli's fingerprints were clearly
identifiable while there were none identifiable that were associated with
Petitioner) . (TR. 522-534, Bolden)
Jones testified that he did go to Spagnoli and carried out the alleged
request of Petitioner. Spagnoli confirmed the testimony of Jones in that
during a meeting with Jones at Spagnoli's home, they discussed
Spagnoli's secret service file and Spagnoli was shown the alleged excerpt
which Spagnoli kept. Spagnoli further testified that he contacted the
secret service, at a later date, after Jones' departure on May
12, 1964 and gave the purported excerpt to Acting Special Agent in
Charge Maurice G. Martineau. (TR.457480, Bolden)
On January 20, 1965, Spagnoli was testifying on his own behalf in the
court of the Honorable J. Sam Perry who also was the Trial Judge in
both of Petitioners' trials. During the course of Spagnoli's testimony in
his counterfeiting trial, Spagnoli testified under oath (1) that he
committed perjury when he testified against Petitioner, at Petitioner's
24
trials and (2) that his perjured testimony against Petitioner was given at
the expressed request of Assistant U.S. Attorney Sikes, who was also the
chief prosecutor in both of Petitioners' trials. (TR. 6268, D'Antonio,
64CR300). Upon hearing this confession of perjury, the following
colloquy took place between Spagnoli and the Trial Judge:
Trial Judge:
Spagnoli: Trial Judge: Spagnoli:
"Are you telling this Court now that under oath in this Court you lied in
the Bolden Trial?"
"Yes, sir."
"You committed perjury then?" "Yes, Sir."
(TR. 6285), U.S. vs. D'Antonio, 64CR300.
Spagnoli further testified that he committed perjury concerning (a)
dates of the events leading to the arrest of Petitioner on May 18, 1964,
(b) his true source of income and (c) other things which he could not
recall at that time. (TR. 6286-6287, D'Antonio, 64CR300) . Spagnoli
further testified that the reason Assistant U.S. Attorney Sikes requested
that Spagnoli perjure himself before the Bolden jury was for the
purpose of making Spagnoli "look good" in the eyes of Petitioner's jury.
(TR. 6284, D'Antonio)
25
During the admissions of perjury by Spagnoli, Spagnoli, through his
attorney, Frank Oliver, introduced a yellow sheet of legal paper which
Spagnoli testified that he "took" from the office of the U.S. Attorney.
(TR. 6272, D'Antonio) . Written on this paper were notations clearly
outlining proposed changes in Spagnoli's testimony in the second trial of
Petitioner. (TR. D'Antonio, Joint Exhibit 36) . Spagnoli testified that
Exhibit 36 was given to him by Assistant U.S. Attorney Sikes "to
remember the lies in there and remember what to say in the Bolden
Trial." (TR. 62696272, D'Antonio) . Assistant U.S. Attorney Sikes
confirmed that he (Sikes) prepared the document but asserted that its
preparation "was precipitated by Spagnoli telling your affiant that he
was having difficulty remembering the exact dates, relating the dates to
days of the week, specifying times within those days, and describing
what occurred at those times on those days and dates." (Defendant's
Motion for a New Trial Based Upon Newly Discovered Evidence -
Counter Affidavit in Opposition, 64CR324, March 7,1965).
26
The entire conspiracy between Petitioner and Jones as alleged by the
Government took place over a two day period to wit: Monday May 11
and Tuesday, May 12, 1964. Spagnoli testified extensively as to his
conversations with Jones on both days in Petitioner's first trial in mid-
July, 1964. The document in question was prepared on July 29, 1964
between Petitioner's first and second trials, which were less than one
month apart.
Moreover, in the first trial, Spagnoli testified that he called Mr.
Martineau of the Secret Service on May 12 in contradiction to Assistant
Special Agent in Charge Martineau's testimony that Spagnoli called
him on May 13. In the text of Exhibit 36, it can clearly be observed that
the dates of significant events bearing upon the testimony of Spagnoli
27
were changed in order to square Spagnoli's testimony with that of
Acting Special Agent in Charge Martineau.
During the second trial of Petitioner at the time that Spagnoli was
undergoing cross examination, defense counsel inquired whether the
Government had offered any assistance to Spagnoli with respect to the
indictment under which he was charged with counterfeiting. The
following colloquy ensued between counsel for Petitioner and Spagnoli,
and the Trial Court:
"Q. Now Mr. Spagnoli, you say that you are indicted under case
docketed as 64CR300 entitled United States vs. D'Antonio and others.
Now I ask you if the Government or the secret service made any
promises of immunity of any type for your testifying here?
A. No, because I didn't do any of those things. That's why. I don't need
nothing. I'm innocent to them charges. I didn't conspire with nobody. I
don't have to have a deal.
Q. Nobody promised you any assistance in your indictment?
A. I don't need any assistance. I'm innocent of the charges.
Q. That is not the question, Mr. Spagnoli. I am asking you if someone
promised you something.
28
The Court: Let his answer stand. You have the answer. Let us just go
on. He is not on trial, ladies and gentleman, in this case here.
That is a mere charge as far as you folks are concerned.
Spagnoli: He is insinuating, your honor, that I might have a deal. I don't
need no deal. I am innocent of them charges. I didn't do none of them
things.
The Court: The answer is there and it may stand. Now proceed." (TR.
494-496, Bolden).
On January 26, 1965, Spagnoli stood before the Trial Judge after
having been convicted under his counterfeiting indictment. Spagnoli's
attorney, Mr. Frank Oliver, made reference to representations of
assistance made to Spagnoli by the Government prosecutors, that in
exchange for Spagnoli's testimony in the Bolden (the Petitioner) trials,
the Government would commend Spagnoli favorably to the Trial Judge
in the event of Spagnoli's conviction. Upon hearing this comment from
Attorney Oliver, the Trial Judge asked if Mr. Sikes, the Assistant U.S.
Attorney, wished to respond. The following is Mr. Sikes' verbatim
reply:
"Yes. It is true, your Honor, that at the time I discussed this matter with
Mr. Spagnoli initially, that I told Mr. Spagnoli that if he wanted to take
29
a plea of guilty in this case, that the fact that he had been a witness in
the Bolden case would, of necessity, be brought to the attention of the
sentencing Judge, because his testimony in the Bolden case was being
given before the same Judge who would eventually hear his own case;
and that is your Honor.
We feel, your Honor, that since the developments in this case, that the
Government has been relieved of any necessity of bringing the obvious
to your Honor's attention." 64CR300, Proceedings January 25, 1965.
C. On January 27, 1965, Petitioner's trial attorney, Mr. George
Howard, received a telephone call from Spagnoli in which Spagnoli
asserted that he (Spagnoli) and Frank Jones "fixed up" the whole case
against Petitioner to help themselves. During the telephone
conversation, Spagnoli intimated that he stole a page from a sheaf of
onion skin papers that were laying on a desk top in a Secret Service
office during the time of his arrest and interrogation on May 9, 1964.
Spagnoli further alleged that while he was being questioned by an agent
of the Secret Service, the agent was called from the room and he "got
the file down there." The particulars of this telephone call by Spagnoli
to Attorney Howard were recorded in an affidavit on February 25,
30
1965, and filed with Petitioner's Motion for a New Trial (which motion
was denied by the Trial Judge on March 25, 1965).
D. In October, 1965 the question of the Government's subornation of
perjury was being orally argued before the United States Court of
Appeals for the Seventh Circuit (Docket Number 14907), the Honorable
Justices Hastings, Koch, and Swygert presiding. Assistant U.S. Attorney
Richard T. Sikes was summoned by the panel in order to clarify, under
oath and as an officer of the Court, the serious allegation of subornation
of perjury as alleged in Appellant's Brief submitted by Petitioner's
appeal attorneys, Raymond J. Smith and James F. Ward.
The records of the U.S. Secret Service and those of the United States
Attorney will reveal that Mr. Sikes was questioned no less than three
times as to whether or not he (Sikes) solicited or suborned perjured
testimony in Petitioner's (Bolden) trials. Mr. Sikes, the chief prosecuting
attorney and the person directly responsible for the control and
coordination of all the evidence in Petitioner's trials, asserted before the
panel:
"Your Honor. I refuse to answer on the grounds that my answer may
tend to incriminate me."
31
(Instead of demanding that Assistant U.S. Attorney Sikes be
investigated for Sike’s failure to answer the question regarding
subornation of perjury before the Court of Appeals, U. S. Attorney Ed.
Hanrahan upbraided Attorney Raymond J. Smith for bringing the
matter before the court. Below is the second page of the Government’s
Reply to Defendant’s Motion for a Rehearing En Banc by the U. S.
Attorney Edward Hanrahan presented to the Court of Appeals.
32
33
May it please this Honorable Court to take due cognizance of the fact
that a federal prosecutor was accused in open court of (a) subornation
of perjury against an agent of the United States Government, (b) the
promising of assistance to an indicted counterfeiter and(c) the failure to
act to correct known perjured testimony when it was given at
Petitioner's two trials and that federal prosecutor took the Fifth
Amendment before the second highest court in this land.
Petitioner further contends, and prays that this Honorable Court will
agree, that officers of the Court should not have the luxury of taking the
Fifth Amendment against self-incrimination as to the subornation of,
the procurement of, or the knowingly ignoring of perjured testimony in
a federal criminal trial. A criminal trial is a seeker of truth and fact,
and it is the sworn duty and obligation of the Government to see that
perjured or less than forthright testimony is not submitted against any
accused no matter how insignificant the perjury or false swearing might
appear. If any prosecutor in any federal, state, or local trial is accused
of soliciting untrue testimony in a criminal trial and is unable or
unwilling to acquit himself of the charge for fear of self-incrimination,
the defendant should be set free; For, the entire case is tainted beyond
34
the fairness and equity required by the Constitution of these United
States of America.
It stands to reason that if a federal prosecutor will bargain with and
counsel an indicted counterfeiter to testify to half truths, known
perjury, and information that is designed to mislead or hoodwink the
jury, greater liberties in alteration and the squaring of testimony are
likely to be taken with more trustworthy colleagues, such as Secret
Service personnel who wanted Petitioner convicted because of
Petitioner's long term charges of racism, and laxity of duty regarding
the protection of President John F. Kennedy.
Should not a Federal District Judge, in the interest of justice and due
process, at least hear the testimony and receive the supporting evidence
of a witness who confessed to an officer of the Court that he "fixed up"
a case, in cooperation with another twice convicted felon, that resulted
in the conviction of an agent of the United States Secret Service?
Spagnoli admitted under oath that he "took" a sheet of paper from the
office of the U.S. Attorney. (TR. 6272, D'Antonio) . With this pilfered
document as evidence, he alleged that Assistant U.S. Attorney Sikes
entered into a criminal agreement with him. Spagnoli and Jones were in
possession of Exhibit 6 purported to be from the files of the Secret
35
Service, and the crudely typed excerpt (having no physical link to
Petitioner either by fingerprints, typewriter, or paper seized from
Petitioner's home), which were offered into evidence against Petitioner
and was the basis for Petitioner's immediate arrest, arraignment, and
trial. (TR. 522-534, Bolden). This same Spagnoli was in possession of
Joint Exhibit 36 (D'Antonio), which was offered into evidence against
Assistant Attorney Sikes, but Sikes was permitted to shield himself
behind the Fifth Amendment before the Court of Appeals when
questioned as to whether or not this document was used for the purpose
of subornation or procurement of perjury. Petitioner, an African
American Secret Service Agent, went to trial and was sentenced to serve
six years in custody of the Federal Bureau of Prisons based largely upon
the sworn admitted false testimony of Spagnoli. Sikes went home to rest
comfortably behind the Fifth Amendment. An arrest warrant was
executed against Petitioner predicated upon the unsworn allegations of
two common criminals, while the Petitioner was a highly productive
member of a Government investigative agency; However, the allegations
against another member of the Government made under oath, before a
Federal judge, went un-denied in the record all the way to the United
States Supreme Court, and not one scintilla of testimony was required
36
by any court in clarification of the sworn admissions of perjury
committed in a Federal Criminal Trial.
This Honorable Court, being the Court of primary jurisdiction, has
both the power and the authority to order such remedial actions as it
may deem appropriate. Petitioner prays this Honorable Court to take
due note of the travesty of justice outlined and the unquestioned denial
of due process and equal protection of the laws as required by the
Constitution of the United States of America.
(4) Special evidentiary rules were enforced by the Trial Court in order
to facilitate the conviction of Petitioner in violation of the Constitution
of the United States of America.
A. A colloquy ensued between the Trial Judge and attorney for
Petitioner (George Howard) regarding Mr. Howard's attempt to have
defense witness Edward Miller testify as to events that occurred on the
morning of May 9, 1964 (the day Spagnoli was arrested). Miller, an avid
fisherman, had noticed two Phillip 66 fishing guides laying on the front
seat of Petitioner's official Secret Service automobile while Miller was
servicing said automobile, in preparation for Spagnoli's arrest, at a gas
station located at 855 West 59th Street, Chicago, Illinois. Miller asked
Petitioner for one of the guides, and Petitioner gave Miller a guide. As
37
Petitioner was leaving the driveway, Miller stopped Petitioner and
advised Petitioner that there was an address on the cover and perhaps
Petitioner did not intend to give Miller this book. Petitioner retrieved
the guide bearing the address 5301 West Quincy (Spagnoli's address)
and handed Miller another copy of the same guide.
Jones had previously alleged in his testimony that Petitioner wrote
down the address of Spagnoli on the back of a magazine cover in his
presence, in furtherance of an alleged conspiracy, on May 11, 1964, and
Government's Exhibit 9, a Phillip's 66 Fishing Guide was introduced
into evidence against Petitioner. (TR. 245-284, Bolden)
However, Miller's proposed testimony was in direct contradiction to the
testimony of Jones, in that Miller observed the address on the fishing
guide on May 9, 1964, prior to the arrest of Spagnoli and prior to the
time Jones testified it was written on May 11, 1964. Moreover, Miller
was a disinterested witness and Jones had very substantial motives to
commit perjury against Petitioner.
After hearing a summary of the proposed testimony outside the
presence of the jury, the Trial Judge ruled that no conversational
testimony could be heard from Miller because "a representative of the
government was not present" at the time that the conversation took
38
place between Miller and Petitioner. (TR. 893-897, 64'CR324, Bolden)
Petitioner contends that this ruling by the Trial Court, and the
unconstitutional restrictions that a representative of the Government be
present to overhear material conversations between the accused and a
witness for the defense, so violates the Sixth Amendment of the
Constitution that any conviction predicated upon ,such restrictions
should be rendered invalid.
The prosecution called before the jury Spagnoli and Jones who both
testified as to what the two indicted felons discussed outside the
presence of the Petitioner.. who was a Secret Service agent. The
prosecution called before the jury Richard Walters, an informant
discredited by Special Agent in Charge Harry Geighlein in an inter-
office memorandum, who testified as to conversations he had with twice
convicted felon Jones outside the presence of Petitioner. Yet, Petitioner
was abridged and restricted by a ruling by the Trial Court that
conversations offered by the defense that occurred outside the presence
of the Government were inadmissible as evidence.
This Honorable Court well recognizes that fact that the adversary
system of justices demands equality of opportunity to present both sides
of an issue. Due Process of the Law requires that the rules of procedure
39
are not tilted in favor of either side. The testimony in question was not
ruled inadmissible, because it was not germane to the issues at bar or
that it was not properly presented; But, the testimony was excluded
solely because a "representative of the government was not present" at
the time that the evidence was adduced.
CONCLUSION
The Petitioner, Abraham W. Bolden, Sr., has brought before the
Honorable Court facts, supported by the records, that substantiate
grave and wanton violations of Petitioner's Constitutional rights during
a federal criminal proceeding. The Petitioner urges and prays this
Honorable Court to exercise its broad powers to insure that all citizens
of these United States of America receive due process of the law as set
forth by the framers of our constitution.
The Petitioner has sought diligently, over the past thirty years, to
receive a fair and impartial hearing into the issues before this
Honorable Court only to be rebuffed by the very courts that are
obligated by sworn duty and position to see that every free and accepted
citizen of these United States receive equitable treatment before the
courts whether that court be Municipal, County, State or Federal.
40
The Government attorneys will undoubtedly argue that thirty years is
too far in the past for this Honorable Court to consider the issues before
the bar, and that Petitioner's remedy is by Pardon by the President of
the United States of America; However, Petitioner has dutifully sought
pardon from the Government on three separate occasions with no
success. The Petitioner cannot in good conscience admit to a crime, for
purposes of pardon, that one of the Government's star witnesses
admitted was "fixed up" against the Petitioner for the purposes of
influencing the Government in his own federal criminal case then
pending in Federal District Court.
Although there have been hearings and written briefs into some of the
allegations contained in this petition, and the Government has had
ample opportunity to acquit itself of any complicity to convict Petitioner
by unlawful means, there is not one denial, of record, that these
constitutional violations occurred. There is not one hint of a denial by
the Government (a) that less than forthright and perjured testimony
was used to convict Petitioner, (b) that this perjury was suborned by the
office of the U.S. Attorney and (c) that the Government attorneys set
silent when the perjured testimony was offered into evidence in a
federal criminal trial.
41
When Petitioner raised these same issues in a Writ of Habeas Corpus
before the Honorable Judge Collinson, Federal District Court,
Springfield, Missouri during Petitioner's confinement at the Federal
Prison Camp in Springfield, Missouri, Petitioner was abruptly removed
from the prison camp by order of Dr. Kinsel, staff psychiatrist and sent
on July 6, 1967, to the 2-1 East Building, which housed the criminally
insane. The reason given for removal of Petitioner from the prison camp
to the psychiatric isolation unit, without going through the normal
required process of institutional classification change of inmate status,
was that Petitioner had embarrassed the Government with Petitioner's
"writs" and statements regarding racism and laxity of security around
President Kennedy, and that such allegations against the courts, the
Secret Service, and the U.S. Attorney's office raised a suspicion that
Petitioner was delusional, paranoid, and schizophrenic. Petitioner was
forced to ingest psychiatric medication against his will for a period of
thirty days, and said medication greatly impaired Petitioner in
Petitioner's quest for a hearing of the issues of this case, pending before
the Honorable Judge Collinson at that time.
Petitioner prays this Honorable Court to expunge the conviction or to
take such action deemed proper by this Honorable Court that will
42
validate and certify the constitutional rights of Petitioner as a free and
accepted citizen of the United States of America.
Respectfully submitted,
Abraham W. Bolden, Sr. Attorney pro se
Now we come to a very crucial part of the government’s push
to convict me of a federal crime. This evidence was unknown
to me during the trial and the conduct of the U.S. Attorney’s
cover up of jury tampering and conspiracy to silence witnesses
on my behalf is crystal clear.
43
44
45
STATEMENT OF THE CASE
Now comes Petitioner, Abraham W. Bolden, Sr., asking and praying
permission from this Honorable Court to amend the Petition to
Expunge, or set aside the conviction of the Petitioner now pending
before this Honorable Court under case 64CR324. In support of this
motion to amend, the Petition filed on August 19, 1994, Petitioner
submits that Petitioner has uncovered new evidence of serious and
irrefutable violations of Petitioner's constitutional guarantees and that
said violations were unknown and could not have been known by
Petitioner during processes of appeal of said conviction, and therefore
were not available for review at any post trial proceedings in a timely
period.
Petitioner's allegations of new evidence pertaining to the violation of
Petitioner's right to a fair trial, equal protection of the laws, and due
process of the law by agents and officers of the United States
Government are:
(1) That the prosecuting attorney being an official of the United States
Government and an officer of the court, in concert and agency with the
United States Secret Service, did unlawfully communicate with a
46
potential and prospective witness for the defense for the purpose of
impeding, hindering, delaying or otherwise obstructing the defense by
the acts of suggesting, counseling and advising said defense witness to
impose preconditions upon Petitioner and Petitioner's attorney prior to
witness' appearance in a federal criminal trial.
(2) That a principal witness for the prosecution was tampered with, in
violation of Section 201, Title 18 of the Federal Criminal Code, during a
federal criminal proceeding and that said prosecution witness was
permitted, by officers of the court, to conceal the identity of the
offender, in violation of Section 3, Title 18 of the Federal Criminal
Code, after having reported said tampering to the United States
Attorney and agents of the United States Secret Service.
(3) That the above allegations are confirmed, verified and supported by
copies of official government memoranda and reports the originals of
which are currently on file in the Federal Records Center in St. Louis,
Missouri.
STATEMENT OF FACTS
(1) That the prosecuting attorney being an official of the United States
Government and an officer of the court, in concert and agency with the
47
United. States Secret Service, did unlawfully communicate with a
potential and prospective witness for the
defense for the purpose of impeding, hindering, delaying, or otherwise
obstructing the defense by the acts of suggesting, counseling and
advising said defense witness to impose preconditions upon Petitioner
and Petitioner's attorney prior to witness' appearance in a federal
criminal trial. (United States Secret Service Memorandum Report,
Abraham Bolden, et al, dated July 23, 1964). Exhibit #4.
48
- 2 -
49
50
51
ARGUMENT
May it please this Honorable Court, it is clearly evident beyond a
reasonable doubt from the contents of the preceding memorandum that
(a) both the prosecuting attorney and the United States Secret Service
received information that a defense witness was to be subpoenaed, (b)
that this defense witness had in his possession records and documents
deemed important to the defense as these records pertained to an
ongoing investigation of Special Agent Cross (the last agent to have had
possession of the onion skin copy of the summary report) being
conducted by the defense and (c) that Assistant U.S. Attorney Sikes in
collaboration with agents of the U.S. Secret Service did use the full
power, authority and influence of their respective offices to hinder or
otherwise obstruct the defense in a federal criminal trial.
Petitioner concedes the proposition that opposing attorneys and
investigative agencies have the right and, in some instances, the duty to
interview prospective witnesses in order to determine the truth.
However, once that proposed testimony of the witness is extracted either
by oral conversation or by written deposition, the privileged
communications cease.
52
Petitioner asserts to this Honorable Court that it may well have been
coincidental that neither Petitioner nor Petitioner's counsel were able to
contact the witness who had possession of the documentary evidence
needed by the defense either by personal visits or telephone after the
witness' interview with Special Agents on July 21, 1964. All efforts to
encourage the witness to discuss the evidence needed by the defense,
through messages left with the witness' secretary, met with negative
results.
On Saturday morning, August 8, 1964, after the government's case in
chief had been concluded, Petitioner visited the Robert E. Dwyer Real
Estate office at which time Petitioner was advised by the secretary that
the potential witness (who had been in communication with agents of
the United States Secret Service after July 21, 1964) had left town on a
vacation. The secretary further advised Petitioner that the witness had
taken the document with him. According to the secretary, the
prospective witness, believed by the Petitioner to be Mr. Robert E.
Dwyer, would be out of town for about two weeks and had left no
further information as to where he could be contacted.
Being but a layman in the law, Petitioner will cite no case precedents
concerning this issue; however, plain fairness and equity in the due
53
administration of justice would certainly support the proposition that
both the office of the U.S. Attorney and agents of the U.S. Secret Service
exceeded the purview of their respective authorities by suggesting that a
witness on behalf of the defense exact any precondition whatsoever from
an opposing defense attorney before the witness' testimony can be heard
in a court of law.
Whether any witness will elect to testify freely and voluntarily in any
state, city, municipal or federal criminal trial must depend solely on the
relationship developed between counsel and witness and dissuasive
suggestions from opposing counsel that the witness not testify unless
opposing counsel's preconditions are met are. .unethical and unlawful
under the Sixth Amendment of the Constitution of the United States of
America. In any free and democratic judicial system, all officers of the
court should exhort the witness to tell the truth, the whole truth and
nothing but the truth in any matter pending before any legally
constituted court or official administrative body.
For the offices of the U.S. Attorney and the United States Secret Service
to engage in clandestine conversation of a non-investigatory nature with
a reluctant defense witness about to be the subject of a subpoena by the
defense in a federal criminal trial was a clear violation of Petitioner's
54
constitutional rights to due process of the law, equal protection of the
laws, and the inherent right as a freeborn and accepted citizen to have
Petitioner's defense considered by a duly impaneled fair and impartial
jury.
Based upon the irrefutable facts of this issue being duly supported by
documentary evidence, the conviction of Petitioner under case 64CR324
should be reversed, expunged, or otherwise set aside by this Honorable
Court.
55
- 4 –
56
57
ARGUMENT
- Several facts, Your Honor, are indelibly clear pertaining to the
Secret Service Memorandum Report dated July 20, 1964. These
facts are: (a) that the Secret Service, U.S. Attorney, and Joseph
Spagnoli all believed that Spagnoli was approached concerning
Spagnoli's testimony scheduled to be given in a federal criminal
trial; (b) that said conversation between Spagnoli and Spagnoli's
unidentified friend was for the criminal purpose of influencing the
testimony of Joseph Spagnoli in violation of Section 201, Title 18
of the Federal Criminal Code; and (c) that Spagnoli would not
identify the perpetrator of the federal criminal violation to either
the office of the U.S. Attorney or agents of the United States
Secret Service in direct violation of Section 3, Title 18 of the
Federal Criminal Code which clearly defines Spagnoli as being an
accessory after the fact.
- For purposes of argument, Petitioner stipulates that the
government discharged every legal obligation by promptly
reporting the details of the tampering allegation to the Honorable
J. Sam Perry who was to preside over the pending trial in which
Spagnoli was to be a principal witness. The trial was scheduled to
58
commence on or about August 3, 1964. However, such stipulation
does not alter the uncontestable fact that Spagnoli (by concealing
the identity of the offender) was in direct violation of the Federal
Criminal Code and this fact was known or should have been
known by attorneys employed by the office of the Attorney
General of the United States and high officials within the United
States Secret Service. Petitioner contends that the pending trial of
Petitioner should have been rescheduled by the government until
such time as the allegation of tampering had been completely and
thoroughly investigated.
- The statutory crime of tampering with a witness in any judicial or
administrative proceeding is a very serious crime that undermines
the due administration of justice as required by and fortified by
the Constitution of the United States of America. In fairness to the
Petitioner (defendant), upon whose behalf the offender was
alleged to have contacted Spagnoli, the charges raised deserved
prompt and urgent resolution and the identity of the offender
revealed. There existed no constitutional right of witness Spagnoli
to conceal the identity of the offender based on friendship or the
assertion that his friend (the offender) was not "in the rackets."
59
The fact of the matter is, Your Honor, that when Spagnoli's friend
sought, endeavored, or conspired to tamper with a government
witness, he or she entered the "rackets" up to their very eyeballs
and subsequent refusal by the witness to identify said offender
was clearly a felonious act under Section 3, Title 18 of the Federal
Criminal Code.
Neither Petitioner nor Petitioner's trial attorney had knowledge of
the fact that, during the time of witness Joseph Spagnoli's
testimony in the trial resulting in Petitioner's conviction, the
principal witness, Joseph Spagnoli, was in the very act of the
continuing commission of a serious federal crime. Moreover,
Spagnoli was presented before the sitting jury as the victim of a
scheme, whose mother supported him, and whose indictment for
violation of the Federal Statutes regarding counterfeiting was "a
mere charge."
The undeniable evidence, Your Honor, is that during Spagnoli's
testimony against Petitioner in the trial of conviction, Spagnoli
was engaged in the commission of a criminal act as defined under
Section 3, Title 18 of the United States Criminal Code. Moreover,
there is unquestionable evidence that the prosecuting attorneys, at
60
Petitioner's trial, knew that principal witness Spagnoli was in the
felonious act of criminal concealment but took no appropriate
action (i.e. the granting of immunity) to compel Spagnoli to
conform to the requirements of the statutory law. Consequently,
the trial proceeded with an indicted principal witness, currently a
party to an additional federal crime as accessory after the fact,
testifying against an agent of the United States Secret Service.
Petitioner was denied the constitutional right to put forth clear
and convincing evidence of unlawful conduct and character that
would tend to impeach the credibility of Spagnoli before the jury
in accordance with Rule 608(b) of the Federal Rules of Criminal
Procedure. The facts sustain the conclusion that denial of
Petitioner's statutory prerogative under Rule 608(b) was due to
the constructive assent of high government investigatory and
prosecutorial officials to the concealing, aiding and abetting of a
serious violation of Section 3, Title 18 of the United States
Criminal Code. The jury that convicted Petitioner was unaware of
these facts.
61
CONCLUSION
Wherefore, the Petitioner having proven substantial denial of
Petitioner's rights guaranteed by the Constitution of these United
States of America and having proven such denial beyond a reasonable
doubt, Petitioner humbly asks and prays this Honorable Court to
expunge, reverse, or otherwise set aside Petitioner's conviction under
file 64CR324, United States of America vs. Abraham W. Bolden.
Respectfully submitted,
Abraham W. Bolden, Sr. Petitioner
CERTIFICATION OF FILING AND MAILING
The undersigned, Petitioner in this cause, certifies that he has served a
copy of this Motion and Brief to Amend Petition to Expunge on the
United States Attorney for the Northern District of Illinois at 219 South
Dearborn Street, Chicago, Illinois, 60606 by mailing a copy to said
United States Attorney's office by depositing the same in the U.S. Mail
at 8300 South Ashland Avenue, Chicago, Illinois and filed the original
and one copy with the Clerk of the United States District Court on or
about November 14, 1994
By Abraham W. Bolden, Sr. Petitioner
62