) Cause No. CR-00-5037-GF-RFC
UNITED STATES OF AMERICA, )
Plaintiff, ) MOTION AND MEMORANDUM
) SUPPORTING A NEW TRIAL;
vs. ) BY REASON OF
) NEW EVIDENCE
BARRY ADAMS, ) IMPEACHING TESTIMONY
Defendant, Pro Se )
) (oral arguments requested)
______________________________________________________________________
COMES NOW the Defendant, pro Se, before this Court to make this Motion for a New Trial, by reason of New Evidence. Defendant presents new evidence in the form of documents released to him by the Forest Service after his trial. These documents include one "Bill for Collection," hand-delivered to Mr. Adams on February 27, 2001, which indicates the existence of a "contract" between Forest Service and "Rainbow Family," issued by Beaverhead-Deerlodge National Forest, for Gathering of the Tribes 2000. Other documents, released in response to defendant's appeal of a Freedom of Information Act request, filed by Defendant in March 2000, reveal information impeaching the testimony of Bill Fox, the 'chief witness' for the prosecution.
Furthermore, this new evidence indicates Prosecutorial Misconduct; and Contempt of this Court's Judgement and Sentencing in this case, on February 5, 2001; in which "restitution" and "liability for damages" were determined by this Court as beyond the scope of legal remedies entitled by the plaintiff, and beyond the scope of the permit in question.1
The New Evidence submitted by Defendant Adams, and attached hereto, consists of the following:
(1) Letter dated March 5, 2001 (inaccurately), from H. Scott Lentz "for District Ranger Dennis Havig." File Code 6570, from Wisdom Ranger District, Beaverhead- Deerlodge National Forest. (See Attachment A)
(2) Bill for Collection, Dated 02/05/01; Amount Due: $ 7529.39; Contract No. 010206947736. (See Attachment B)
(3) Letter from William F. Wasley, Director, Law Enforcement and Investigations, dated Feb.16, 2001; File Code: 6270-1-1 00-1429-A (LEI). (See Attachment D)
(4) Letter of Delegation of Authority, from Allegheny Forest to Incident Command, File Code: 2700/5300/1230, dated June 10, 1999. (See Attachment E)
(5) 'Declaration of Emergency' request letter, dated March 15, 1999, File Code: 6150, (similar to 'Declaration of Emergency' request letter dated January 25, 2000, File Code 6150). (See Attachment F).
(6) An undated email message from Alice Carlton, concerning $400,000 in approved budget line items to cover recreation and law enforcement expenses. (See Attachment F; also See Attachment D, at 4.). These documents contain relevant evidence that was withheld from Defendant and this Court's knowledge.
Defendant respectfully moves this Court for a new Trial, without sure knowledge of the proper procedure. Because this new evidence impeaches testimony that was given in this Court; and indicates plaintiff's Contempt of this Court's Judgement, defendant's common sense causes him to make this Motion before this Court. Defendant is already on Appeal from this Court's Judgement of February 5th, 2001, but is also awaiting this Court's Order concerning two Motions defendant has before this court; Defendant's Motion for Assigned Counsel (filed, February 26, 2001) and Defendant's Motion for Stay of Execution of Sentence, Pending Appeal (filed, February 26th, 2001). If this Defendant has improperly filed this Motion, he asks the Court for understanding. Defendant is without "assigned counsel" and has been without "stand-by counsel", per date of Judgement, February 5th, 2001.
A. Evidence of a Contract issued to "Rainbow Family":
On February 26th, 2001, USFS Law Enforcement Officer (LEO) Don Pilanski left a message for Adams, he wanted to meet and give Adams "a letter". Adams called back and suggested L.E.O. Pilanski meet him at the doorway to the U.S. District Federal Courthouse, Missoula, Mt., at 9:30am., February 27th, 2001.
Upon arriving at this Courthouse, around 9:30am, with Dr. Robert Balch2, a "fair" witness, Mr. Adams met LEO Pilanski. Officer Pilanski said he was there to deliver a letter to Adams personally. Adams responded by asking who the letter was for? Mr. Pilanski replied for you, Barry Adams. Adams asked if the letter was intended for the "Rainbow Family" because he "is not an agent or representative". Mr. Pilanski replied as far as he knew the letter was for Adams personally. At which point, Adams asked him who had sent the letter and Mr. Pilanski replied that Special Agent Bill Fox, had sent him from Missoula, down to Wisdom to the Ranger District office to courier this letter back to Missoula, and deliver this letter personally to Adams. At this point Adams took the letter.
Upon opening the letter Adams found it contained a Letter and Bill for Collection, addressed to Barry Adams; with two pages of "justification" for the "Bill", concerning Road Grading and Weed Control. Also included with the letter was a new business card of Special Agent Bill Fox. The letter (mis-dated March 5, 2000) indicated clearly that the bill was not for Adams personally, but for the "Rainbow Family";
"Dear Barry;
Please find enclosed a Bill for collection issued to the Rainbow Family.
This bill represents the following expenses:"... See Attachment A, Letter from Wisdom Ranger District, Beaverhead-Deerlodge National Forest.
However, Adams found that the "Bill for Collection" was wrongly addressed to Barry Adams, instead of the "Rainbow Family";
"USDA FOREST SERVICE 1. BILL DATE: 02/05/2001"
BILL FOR COLLECTION
"TO:
Barry Adams
P.O. Box 8574
Missoula, MT 59807 2. NET AMOUNT DUE: $ 7529.39
3. DUE DATE:
03/05/01
4. BILL NUMBER: AB 0102031000"...
5. PAYER CODE: MISC I
6. AGREEMENT NO: CONTRACT NO: 010206947736 7. DESCRIPTION:
RAINBOW FAMILY"
...
"NOTE:
PLEASE SEND ALL CORRESPONDENCE, INQUIRIES, AND CHANGE OF ADDRESS TO:
Wisdom Ranger District
P.O. Box 238
Wisdom, MT 59761
FAILURE TO MAKE PAYMENT BY THE DUE DATE WILL RESULT IN THE
ASSESSMENT OF LATE PAYMENT CHARGES (INTEREST, ADMINISTRATIVE COST,
AND/OR PENALTY CHARGES) IN ACCORDANCE WITH YOUR CONTRACT, PERMIT,
OR THE DEBT COLLECTION ACT OF 1982, AS AMENDED. POSTMARKS ARE NOT
HONORED." (abridged, emphasis added)
See Attachment B, Bill for Collection. Defendant Adams maintains a seperate legal identity from the "Rainbow Family", and is not an 'agent or representative' for "Rainbow Family" or "Gathering of the Tribes 2000;" Adams even questions the "legal identity' and existence of said group "Rainbow Family" (except in a conceptual framework). The bill was wrongly directed to Adams.
The letter also states in reference to Adams:
"None of the roadwork as specified with the rehabilitation plan given to you on July 6, 2000 was completed..." See Attachment A, Letter . But no "rehabilitation plan" was presented to Adams on July 6, 2000. The "rehabilitation plan" wasn't even given to Gatherers until July 10th, 2000. See Attachment C Rehabilitation Plan - Amendment #1:
"The following rehabilitation objectives were discussed at the gathering site on Saginaw Creek by the rehab. team on July 10, 2000." This discrepancy of dates seems innocent, however, July 6, was during the gathering, and July 10 was after the Gathering, and is at variance to District Ranger Dennis Havig's testimony at Trial.
Upon closer inspection, it appears that this Bill for Collection includes a contract number, Contract No: 0102069477361, which indicates that a "Contract" exists between 'Rainbow Family" and Wisdom Ranger District. This means that some sort of authorization was issued by Wisdom Ranger District to the 'Rainbow Family" for use of the Site for the "Gathering of the Tribes 2000". The existence of such a contract is at odds with Plaintiff's claim that no authorization was issued. Furthermore, since no such contract was signed by or offered to Adams, it appears that either some other person signed a contract on behalf of the Rainbow Family, or that a contract was issued unilaterally, with no signature requirement. If there is a "Contract" or some sort of "authorization", then why was Adams prosecuted?
It should be noted by this Court that in Defendant's "briefs", there is reference to two types of 'authorizations' that have been given for past 'Gatherings';(1) Self-designated individuals have signed applications and permits, and (2) Forest Service has unilaterally issued "permits" for 'Gatherings". This Contract seems to be one unilaterally issued by the Forest Service. See Defendant's Reply to Plaintiff's Consolidated Memorandum of Opposition, filed December 28, 2000.
B. Defendant Not Liable for Restitution: Plaintiff in Contempt
The "amount due" indicated on the "Bill of Collection"is the exact amount that was requested by the prosecution and denied by this Court, as "restitution" during this defendant's sentencing.
LEO Pilanski's story that Bill Fox ordered him to act as courier for this bill, and the inclusion of Mr. Fox's business card with these documents, suggests that Mr. Fox had some part in administering this Bill to Adams. This seems to contradict his testimony concerning his duties being strictly limited to enforcement; that he does not "administer" permits. Surely "billing" can only be deemed an administrative duty. Mr. Fox, plaintiff's representative for the Prosecution, appears to have acted to administer liability on defendant Adams, which not only contradicts Fox's testimony, but even more seriously, displays contempt for this Court's ruling. This Court was explicit in its ruling on the 'liability" question, concerning Adams as an individual.
C. FOIA requested documents impeach the testimony of "chief" witness for the prosecution, Incident Commander William Fox.
As noted above, Mr. Fox's role in "billing" Mr. Adams appears to contradict his testimony concerning the scope of his duties with respect to the permit issue. Mr. Fox testified before this Court, at Trial,during cross-examination by defense, that his job was not to administer applications or permits, but simply to enforce the permit requirement. This testimony was given as explanation for his not replying to defendant Adams' application for special use.
Mr. Fox's testimony is further impeached by a document recently received by Mr. Adams as partial response to a Freedom of Information Act request appeal he filed in March of 2000. This document entitled "Delegation of Authority" for the Gathering in Pennsylvania 1999, was received by Mr. Adams by certified mail, on February 28th, 2001, from William Wasley, Director of Law Enforcement and Investigations, USDA Forest Service, Washington Office. See Attachment D - Letter from Director Wasley
According to this "Delegation of Authority" directed to Incident Commander Fox, Fox was delegated "authority and responsibility", by the Forest Supervisor "to prepare for and manage this event.." in accordance with "performance objectives and guidelines." See Attachment E - Delegation of Authority, 1999 Rainbow Family Gathering, R-9.
"Subject: Delegation of Authority, 1999 Rainbow Family Gathering, R-9 To: William C. Fox, Incident Commander, National Incident Command Team
You are hereby delegated authority to manage the 1999 Rainbow Family National Gathering, which will occur on the Allegheny National Forest during June and July of 1999. You have the authority and responsibility to prepare for and manage this event within the framework and guidelines of the law, Forest Service-policy and direction set forth -in this letter. Additional information will be made available as needed to further clarify your authority and responsibilities. You and your Team are authorized to begin working on the event (gathering) immediately.
Your primary performance objectives and guidelines are as follows--
1. Event Management - Manage this event proactively as a noncommercial -group use activity under special use authorities and the Noncommercial Group Use regulations. Mobilize the needed resources to rnanage the event effectively and efficiently. Pursue a Noncommercial Group Use Permit with an operating plan. Internal and external relationships and communications are extremely critical and will have to be established and maintained throughout the course of the event, including- key Forest Service personnel, cooperating Federal, State and local agencies, as well as members of the Rainbow Family.. All actions must be well documented and a final documentation package, including recommendations for management of future Rainbow Family National Gatherings, will be necessary. (emphasis added)
These objectives clearly included administrative duties; including "pursue a noncommercial group use permit with an operating plan."
Such a "Delegation of Authority" is the normal procedure for transfering authority for incident management from the Forest Supervisor to the National Incident Management Team. While no such document was forthcoming in Discovery, it is reasonable to assume its existence for Gathering, Montana 2000. It is also likely that the directives are similar. Related documents, such as the requests for "Declaration of Emergency" to the Chief of Forest Service, in 1999 and again in 2000, are nearly identical. See Attachment F - Requests for: Declaration of Emergency 1999; and Declaration of Emergency 2000. This causes Defense to believe that a similar "Delegation of Authority" from the Forest Supervisor to Bill Fox, also exists for Gathering, Montana 2000, placing Mr. Fox "in sole authority", as he testified.
If this is so, then Mr. Fox's duties include administration of the special use application and permit, contrary to his testimony at Trial. These documents belately delivered to this Defendant, impeach Mr. Fox's testimony.
Defendant filed Motions for Discovery and Motions to Compel Discovery, seeking just such documents, all of which were denied by the Prosecution and denied by this Court; however it is clear the production of these documents could have been sufficient to provide the Defense with adequate testimony and discovery that would surely have changed this Court's Judgement in this case.
This Defendant respectfully requests this Court to review these documents and grant Defendant's Motion for a New Trial based on the evidence contained in these documents; documents that should have been produced; and should be produced, for the purpose of Defense, i.e. the Contract, and the "Delegation of Authority" for Gathering, Montana 2000.
Defendant would like this Court to examine the Prosecution's conduct in this case, specificially the actions of Mr. Fox; concerning accurate testimony, whether documents were withheld and whether the actions of Mr. Fox, in administering the issuance of this "Bill for collection" to Adams constituted Contempt for this Court's ruling. All of these actions portray potential Misconduct upon the part of members of the Prosecution's team.
Defendant requests Oral Arguments be heard in this matter, on Friday, March 9th, 2001, in time before Mr. Jenkin's Trial, a similarily charged defendant; all of the principles will be present for Mr. Jenkin's Trial.
Defendant attempted to contact, by phone, Mr. McLean, for the Plaintiff, concerning this Motion, March 5th, 2001. Mr. McLean was unavailable, Defendant left voice message.
Respectfully submitted, DATED this March 5th, 2001. _________________________ Barry Adams, pro Se