SUPREME COURT ASKED TO HALT NJ CORRUPTION
Supreme Court of the United States
CARL J. MAYER, ESQ., ET AL., PETITIONERS
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Carl J. Mayer
MAYER LAW GROUP
66 Witherspoon Street, Suite 414
Princeton, NJ 08542
CURRY & TAYLOR ! WASH D.C. ! (202) 393-4141 ! USSCINFO.COM
Bruce Afran, Esq.
10 Braeburn Drive
Princeton, NJ 08540
Ted Rosenberg, Esq.
321 New Albany Road
P.O. Box 97
Moorestown, NJ 08057
739 Parry Avenue
Palmyra, NJ 08065
Does the “presentment” clause of the Fifth Amendment
to the United States Constitution secure the autonomy of
a federal Grand Jury to investigate and bring criminal
charges (independent of Executive Branch prosecutors
and Judicial Branch judges) particularly in cases of
criminal political corruption, thereby rendering
unconstitutional the advisory committee notes to Rule 7
of the Federal Rules of Criminal Procedure?
Are citizens protected by the First, Fifth and Fourteenth
Amendment to the United States Constitution in
communicating evidence of crimes directly to federal
Grand Juries, independent of prosecutors or judges?
Did the Framers of the Constitution intend to include the
Grand Jury within the ambit of the Constitution’s
Separation of Powers scheme such that the Grand Jury
remains autonomous of the Executive, Legislative and
Judicial Branches and is always available, as it has been
historically, to independently investigate evidence
presented by citizens of criminal corruption by
government officials of any branch of government?
PARTIES TO THE PROCEEDINGS
Carl J. Mayer, Esq.
Bruce Afran, Esq.
Ted Rosenberg, Esq.
TABLE OF CONTENTS
UESTIONS PRESENTED.............................................................. i
TABLE OF AUTHORITIES............................................................iv
OPINIONS BELOW......................................................................... 1
RELEVANT PROVISIONS INVOLVED ..........................................1
STATEMENT ................................................................................. 1
REASONS FOR GRANTING THE PETITION............................... 14
Circuit Court Decision ......................................................... 1a
District Court Decision ........................................................ 2a
Relevant Provisions Involved ........................................... 14a
TABLE OF AUTHORITIES
BLAIR V. UNITED STATES, 250 U.S. 273, 280, 39
S.CT. 468, 63 L.ED. 979 (1919)............................................... 22
FRISBIE V. UNITED STATES, 157 U.S. 160, 163, 15 S.
CT. 586, 587, 39 L. ED. 657, 658 (1895) .................................. 27
HALE V. HENKEL, 201 U.S. 43, 62, 26 S.CT. 370, 50
L.ED. 652. N12 (1906) ........................................................22, 27
HOTT V. YARBOROUGH, 112 TEX. 179, 245 S.W. 676
(TEX. COMM'N APP. 1922) ..................................................... 20
IN RE LESTER, 77 GA. 143, 1886 WL 1476, AT 3 (GA.
KING V. SECOND NAT'L BANK & TRUST CO., 234 ALA.
106, 173 SO. 498, 499 (ALA. 1937) .......................................... 20
MORGAN V. NULL, 117 F. SUPP. 11, 15 (S.D.N.Y. 1953) ........ 20
STATE EX REL. MILLER V. SMITH, 285 S.E. 2D 500 (W.
VA. 1981).................................................................................. 20
STATE EX REL. WILD V. OTIS, 257 N.W.2D 361, 364
(MINN. 1977) ........................................................................... 28
STATE V. STEWART, 45 LA. ANN. 1164, 14 SO. 143, 145
(LA. 1893) ................................................................................ 20
SULLIVAN V. UNITED STATES, 1954, 348 U.S. 170,
173, 75 S.CT. 182, 99 L.ED. 210 794 (5TH CIR. 1975).............. 22
UNITED STATES V. BRIGGS, 514 F.2D 794(5TH CIR.
1975) ........................................................................................ 22
UNITED STATES V. CHRISTIAN 660 F.2D 892 (3D CIR.
UNITED STATES V. COACHMAN, 243 U.S. APP. D.C.
228, 752 F.2D 685, 689 N.23 (D.C.CIR. 1985)......................... 22
UNITED STATES V. COX, 342 F.2D 167 (5TH CIR. 1965) ......... 22
UNITED STATES V. KEMP, 362 F. SUPP. 2D 591 (2005) ............ 8
UNITED STATES V. SELLS ENGINEERING, INC., 463
U.S. 418, 430 (1983)................................................................. 26
UNITED STATES V. SMYTH, 104 F. SUPP. 283, 287
(N.D. CAL. 1952)................................................................23, 25
UNITED STATES V. STIRONE, 361 U.S. 212, 218 (1960).......... 26
UNITED STATES V. ZAVALA, 839 F.2D 523, 529 (9TH
CIR. 1988), CERT. DENIED, 488 U.S. 831, 102 L. ED.
2D 62, 109 S. CT. 86 (1988) ...................................................... 22
WILD V. OTIS, 434 U.S. 1003, 98 S. CT. 707, 54 L. ED.
2D 746 (1978)............................................................................ 28
WOODS V. GEORGIA 370 U.S. 375 (1962) .................................. 27
18 U.S.C. § 371............................................................................... 8
18 U.S.C. § 1341............................................................................. 8
18 U.S.C. § 1343............................................................................. 8
18 U.S.C. § 1951............................................................................. 8
18 U.S.C.A. § 1504......................................................................... 7
18 USCS § 1961 ............................................................................. 8
28 U.S.C. 1254(1)........................................................................... 1
18 USCS § 1961 ............................................................................. 8
COLO. REV. STAT. § 16-5-204(4)(L) ........................................... 19
ME. REV. STAT. ANN. TIT. 15.................................................... 19
N.C. GEN. STAT. § 15A-626(D) .................................................. 19
NEB. REV. STAT. § 29-1410.01................................................... 19
TENN. CODE ANN. § 40-12-104(A) ............................................ 19
TEX. CRIM. PROC. CODE ANN. § 20.09..................................... 20
U.S. CONST. AMEND. I ............................................................... 27
U.S. CONST. AMEND. V.............................................................. 16
U.S. CONST. AMEND. XIV......................................................... 27
FEDERAL PRACTICE AND PROCEDURE § 121........................ 15
FEDERAL RULES OF CRIMINAL PROCEDURE RULE 7 ........ 15
AMERICAN GRAND JURY: ITS HISTORY, ITS
SECRECY, AND ITS PROCESS, 24 FLA. ST. U. L.
REV. 9 (1996)........................................................................... 18
DREW R. MCCOY, THE LAST OF THE FATHERS: JAMES
MADISON & THE REPUBLICAN LEGACY 89 (1989) ............21
HELENE E. SCHWARTZ, DEMYTHOLOGIZING THE
HISTORIC ROLE OF THE GRAND JURY, 10 AM.
CRIM L. REV. 701, 703-710 (1972)......................................... 17
J. JACOBY, ORIGINS AND DEVELOPMENT OF
AMERICAN PROSECUTIONS (1980).......................................19
KARSON, THE IMPLICATIONS OF A KEY-MAN SYSTEM
FOR SELECTING A GRAND JURY: AN EXPLORATORY
STUDY (2006) SOUTHWEST JOURNAL OF CRIMINAL
JUSTICE, VOL. 3(1). PP. 3-16. .................................................21
MARK KADISH, BEHIND THE LOCKED DOOR OF AN
AMERICAN GRAND JURY: ITS HISTORY, ITS
SECRECY, AND ITS PROCESS, 24 FLA. ST. U. L. REV.
9 (1996). ....................................................................................18
MARVIN E. FRANKEL & GARY NAFTALIS, THE GRAND
JURY: AN INSTITUTION ON TRIAL (1977). ..........................17
NOTE, POWERS OF FEDERAL GRAND JURIES, 4
STAN. L. REV. 77 (1951)......................................................... 18
NOTE, THE GRAND JURY AS A INVESTIGATORY
BODY, 74 HARV. L. REV. 590 (1961)..................................... 27
PHILLIP E. HASSMAN, ANNOTATION, AUTHORITY OF
FEDERAL GRAND JURY TO ISSUE INDICTMENT OR
REPORT CHARGING UNINDICTED PERSON WITH
CRIME OR MISCONDUCT, 28 A.L.R. FED. 851 (1976) ........ 17
RENEE B. LETTOW, REVIVING FEDERAL GRAND
JURY PRESENTMENTS, 103 YALE L.J. 1333, 1342
N.50 (1994) ..........................................................................16, 19
RICHARD CALKINS, THE FADING MYTH OF GRAND
JURY SECRECY, 1 J. MARSHALL J. PRAC. & PROC.
18, 19 (1967) ............................................................................. 18
RICHARD D. YOUNGER, THE PEOPLE'S PANEL: THE
GRAND JURY IN THE UNITED STATES, 1634-1941, AT
The Court of Appeals for the Third Circuit issued no
opinion and granted summary action in an order dated
May 8, 2006. This order is reprinted in the Appendix To
The Petition. (“App.”)
The District Court’s opinion is unpublished and is
reprinted at App. 2a.
The Third Circuit Court of Appeals order granting
summary action was entered on May 8, 2006.
The District Court’s opinion was entered on January 3,
This Court has jurisdiction under 28 U.S.C. 1254(1)
RELEVANT PROVISIONS INVOLVED
Petitioners submitted evidence of federal crimes related
to political corruption before a federal judge and asked
that he instruct a federal Grand Jury that it can consider
the evidence independently of federal prosecutors and
return a “presentment”: an alternative to an indictment,
specifically enumerated in the Fifth Amendment to the
United States Constitution.
The judge refused and ruled that the advisory notes to
the Federal Rules of Criminal Procedure declare
presentments and Grand Jury autonomy obsolete. The
Third Circuit affirmed, and Petitioners now seek review
of the fundamental constitutional questions raised.
Petitioners represent themselves pro se and pro bono.
Petitioners neither expect nor shall they receive any
remuneration for bringing this action, nor are they
affiliated with any interest group or organization of any
kind. They bring this Petition exclusively in the hopes
of upholding the Constitution of the United States and,
at long last, curbing corruption and illegality in High
Office: a cancer that is eroding democracy and the rule
of law in New Jersey and in the nation.
Petitioners are either members of the Bar or elected
officials. They each have different political affiliations.
Petitioner Carl J. Mayer, Esq. formerly served as an
elected member of the Township Committee of
Princeton, New Jersey. He was elected as an
Independent. He is a former professor of law and
clerked for Caleb M. Wright, United States District Court
Judge. Petitioner John Gural is the Mayor of Palmyra,
New Jersey and was elected as a Democrat. Ted
Rosenberg, Esq., a Democrat, is the Township Attorney
in Palmyra, New Jersey. Bruce Afran, Esq. is an adjunct
law professor at Rutgers-Camden law school and has
run for office as a Republican.
"The best thing you do . . . Make him a fucking judge
and get rid of him. . . [he] disappears… whatever the
case” Boss George Norcross1
1 Transcript of conversation recorded by New Jersey State Attorney
General at Commerce Bank Headquarters of “Boss” George
Norcross, p. 40, 1/3/01 Transcript.
“[I]n the end, the McGreevey’s [the former New Jersey
Governor], the Corzines [the current New Jersey
Governor], they're all going to be with me. Because not
that they like me, but because they have no choice."
Boss George Norcross2
1. Evidence of Crimes Presented To A Federal Grand
Petitioner John Gural is the Mayor of Palmyra, New
Jersey. In 2000 he was approached by “Boss” George
Norcross, one of the most powerful leaders of the
Democratic party in New Jersey. Gural is also a
Democrat. Norcross demanded that Gural fire
Petitioner Ted Rosenberg, the Township Attorney for
Palmyra. In return, Gural was promised more business
opportunities; if he declined, it was made clear that
Gural’s business would suffer.
Norcross wanted the Township Attorney fired because
he was known as a political reformer within the
Democratic Party. Norcross also wanted the Township
to do more business with entities he controlled.
Norcross is one of the dozen or so most powerful men in
New Jersey; he personally claims to be more powerful
than Governors or Senators, and he doesn’t hold any
office. He is almost always referred to in the press as
“Boss Norcross”.3 (Except for a brief interregnum under
the governorship of Woodrow Wilson, politics in New
Jersey has been dominated by the “Boss” system: the
Bosses raise the money, pick the candidates and control
each major political party, right down to the county and
3 A. Guenther, “Boss Norcross”, Courier-Post, Feb. 16, 2003.
By day, Norcross sits on the board of Commerce Bank, a
large regional bank, and controls $60 million of that
company’s stock; by night, he ladles out corporate cash
to political candidates and rules his party with an iron
fist. (Although, as in most matters, New Jersey is open
for business: Boss Norcross and his bank give liberally
to Republicans as well.)
Devoting attention to New Jersey municipalities like
Palmyra is quite lucrative for Commerce Bank: onefifth
of the bank’s business is government deposits, a
cool $4 billion of taxpayer dollars. The $17.7 billion-ayear
financial behemoth has ladled out more campaign
cash and received more government no-bid contracts
than any financial institution in New Jersey. 4 Compared
to Boss Tweed, Boss Norcross is a very rich man, and
rules with as much power as Boss Tweed ever accrued.
Mayor Gural and Township Attorney Rosenberg came to
believe that Norcross was committing crimes and
approached the New Jersey Attorney General’s office.
Specifically, Petitioners knew it was a crime for
Norcross to attempt to bribe and extort the Mayor to
fire Rosenberg. The Attorney General agreed to
investigate and his staff wired Gural and Rosenberg and
the two secretly recorded many hours of phone
conversations with Norcross and his associates.5
The contents of the tapes are stunning for what they
reveal about the perversion of American democracy by
lobbyists, political bosses and criminal wrongdoers. On
April 1, 2005, the tapes were released to the public after
4 C. Riley, “Banking On Your Money: Commerce Counts On Political
Ties.”, Bergen Record, May 21, 2003
5The Justices can listen to the actual tapes or read the transcripts
a lawsuit brought by news organizations, including the
New York Times and the Philadelphia Inquirer. 6
The recordings, for example, capture Norcross
instructing Gural: "I want you to fire that fuck. [Y]ou
need to get this fuck Rosenberg [the town attorney] for
me and teach this jerk-off a lesson. He has to be
punished…Rosenberg is history and he is done and
anything I can do to crush his ass, I wanna do because I
just think he’s just done, an evil fuck." 7
Later, Norcross explains how he handled a member of
the New Jersey legislature: “I sat him [the legislator]
down and said … ‘don’t fuck with me on this one... if
you ever do that and I catch you one more time doing it,
you're gonna get your fucking balls cut off.’ He got the
Norcross brags that his political enemies will always
respect him “[b]ecause they know we put up the gun
and we pulled the trigger and we blew their brains
Boss Norcross, himself, sums up the deal. “[I]n the end,
the McGreeveys [the former New Jersey Governor], the
Corzines [the current New Jersey Governor], they're all
going to be with me. Because not that they like me, but
because they have no choice”10
The transcripts of the recorded phone conversations
also reveal multiple efforts on the part of Norcross and
his associates to bribe or extort Mayor Gural.11
It came as no surprise that despite the cooperation of
Gural and Rosenberg, despite the tapes and despite the
willingness of two members of Norcross’ own party to
testify against him, the New Jersey Attorney General
refused to indict either Norcross or Commerce Bank.
At the time, New Jersey Attorney General Harvey was
almost routinely referred to in the press as “Peter See
No Evil Harvey”12. The Attorney General, moreover, was
appointed by then Governor James McGreevey – a man
Boss Norcross bragged about controlling – and whose
ascent to power in New Jersey was substantially
bankrolled by Boss Norcross. The Attorney General’s
office claimed to have lost a videotape of George
Norcross meeting ex parte with a Deputy Attorney
General (the meeting was conceded) in an effort to
persuade the Attorney General not to indict. The
Attorney General even refused, after declining
indictment, to release the taped conversations until
compelled by Court order. Instead, the Attorney
General focused his energies on bringing an action
against Blockbuster Video Inc. for charging customers
The subsequent New Jersey Attorney General, Zulima
Farber, resigned her post after a special prosecutor
appointed by the Governor concluded she had herself
violated state ethics codes and after it was revealed that
the Attorney General had at least four bench warrants
12 B. Engle, “Governor Trying To Work Around Attorney General”,
Courier-Post, December 6, 2004. (“Public corruption is something
Harvey couldn’t identify in a lineup.”)
outstanding for her own arrest.13 Welcome to New
At this juncture, Petitioners Mayer and Afran – public
interest lawyers who frequently fight corruption in
government -- approached Gural and Rosenberg, whom
they had never met before. Mayer suggested they
submit their evidence directly to a federal Grand Jury.
On August 8, 2005, they did just that.
They moved before United States District Court Judge
Chesler for the following:
1. Permit the Petitioners to present directly to
the Grand Jury evidence of federal crimes.
The petitioners relied on the First, Fifth and
Fourteenth Amendment to the United States
Constitution as well as 18 U.S.C.A. § 1504
which provides that "nothing in this section
shall be construed to prohibit the
communication of a request to appear before
the Grand Jury”.
2. Issue a declaratory judgment that Rule 7 of the
Federal Rules of Criminal Procedure
prohibiting Grand Jury’s from returning
presentments is unconstitutional and that
Grand Jury presentments are specifically
permitted in the federal system.
3. Impanel a special Grand Jury to investigate
widespread violations of racketeering and
related statutes by lobbyists and politicians.
13 B. DiFalco, “New Jersey Attorney General Quits Over Ethics.”
ABC.com, August 16, 2006.
The Petitioners further informed Judge Chesler in New
Jersey that his brethren Pennsylvania United States
District Judge Michael M. Baylson, sua sponte,
suggested in open court on May 9, 2005 that
racketeering charges be brought against Commerce
Bank and other defendants in connection with bribes
paid to government officials in Philadelphia. The judge
presided over a trial in which two executives of
Commerce Bank were convicted of conspiracy to
commit honest services fraud, in violation of 18 U.S.C. §
371, honest services wire fraud, in violation of 18 U.S.C.
§§ 1343 and 1346 and honest services mail fraud, in
violation of 18 U.S.C. §§ 1341 and 1346. See United
States v. Kemp, 362 F. Supp. 2d 591; 2005 U.S. Dist.
LEXIS 5070 (2005) (and related opinions). Judge
Baylson took the further unusual step of sentencing one
of the defendants in the scheme to more time than
requested by the U.S. Attorney.
Petitioners suggested to Judge Chesler that Boss
Norcross and Commerce Bank had engaged in violations
of the Racketeer Influenced and Corrupt Organizations
Act (RICO) 18 USCS §§ 1961 et seq., the Hobbs Act, 18
U.S.C. § 1951 as well as violations of the statutes
prohibiting honest services fraud referenced above. In
essence, they claimed that Norcross and Commerce
Bank engaged in Palmyra, New Jersey in conduct similar
to the conduct that was the subject of the Kemp case: in
return for bribes and extortion, government contracts
and favors were sought.
2. Background: Criminal Corruption In New Jersey.
Some background regarding pervasive and persistent
criminal corruption extant amongst lobbyists,
politicians and elected officials in New Jersey (and,
increasingly, the nation) is in order to underscore the
important precepts at stake in this case.
New Jersey has established itself in the eyes of
academics, political observers and its own citizenry as
probably the most criminally corrupt state in the nation.
Many federal crimes – including embezzlement, fraud,
extortion and theft of honest services – have been
prosecuted by the New Jersey U.S. Attorney’s office,
under pressure from citizens. But these prosecutions
are merely the tip of the iceberg. Often, the most
powerful politicians and lobbyists in the state are left to
continue illegal activity, while lesser figures are
It is impossible to recount the litany of crimes
committed by politicians and lobbyists in New Jersey
within the confines of a petition for writ of certiorari. A
truckload of Brandeis Briefs could not do justice to a
venality and avarice that would make the Senators of
ancient Rome blush. One is tempted to try, merely
because a full recitation of the facts would cause peels
of laughter to reverberate down the alabaster hallways
of our nation’s Highest Court.
Humor, however, ought not to be the motive;
underpinning this farce is a substantial unfolding
tragedy in the practice of American democracy.
A mere sampling will make the point:
• Former United States Senator Robert Torricelli, a
Democrat, ended his campaign for re-election in
2002 after an associate – subsequently
imprisoned – admitted to illegal and unreported
payments to the Senator. The Senator was never
prosecuted even though there was substantial
independent evidence and the associate was
prepared to testify against the Senator.14 (Many
people are now on Death Row on the basis of
• The presumptive Republican nominee for Senate,
James Treffinger, billed himself as a reformer to
replace Torricelli; he terminated his candidacy
when the FBI raided his offices. He later pled
guilty to extorting campaign contributions. 15
• On the heels of Senator Torricelli’s resignation,
Governor McGreevey resigned, not so much
because he admitted to an extra-marital affair
with a man, but because he had placed his
paramour on the government payroll in a job he
was uniquely unqualified to hold: State Homeland
Security Adviser. All the federal security
agencies refused to brief the man because, as a
foreign national, he could never obtain security
clearance. McGreevey was never prosecuted. 16
• An Assemblyman and close advisor to Newark
Mayor Sharpe James was found with $150,000 in
stolen cash in the floorboards of his home.17
• The leading fundraiser for former Governor
James McGreevey, Robert Kushner, was under
investigation by the U.S. Attorney’s office for
illegal campaign contributions when it was
14 “Resignation Heats Up Senate Race”, BBC News, October 1, 2002.
15 R. Smothers, “Treffinger Pleads Guilty,” New York Times, June 8,
16 J. Margolin, “McGreevey’s Reclusive Israeli Aide Steps Down”
New Jersey Capital Report, August 15, 2002.
17B. Alberts, “Williams Scandal Fuels Essex Reputation for
Corruption,” PoliticsNJ.com, Dec. 27, 2005.
revealed that Kushner sought to tamper with a
federal witness. He did so by hiring a New York
City prostitute who arranged for a tryst with the
married witness; the encounter was
surreptitiously videotaped. Kushner attempted to
intimidate the witness by sending him the video.18
• The major media in New Jersey have documented
in series after series, often on the front page, the
corrupt -- usually criminal-- payoffs that lobbyists
tender to public figures in return for government
contracts and emoluments.19
• Well-known New Jersey lobbyist Alan Marcus
confided to New York Magazine: "In New Jersey,
you contribute money not for access but results.
Anybody who doesn't admit that is lying." 20
• Petitioner Carl Mayer, while serving on the
Princeton Township Committee, was asked by
the CBS news program “Sixty Minutes” to assist
in an investigation of corruption he witnessed as
an elected official. In the course of the Sixty
Minutes investigation, the CEO of United Gunite
Corporation – a New Jersey company – actually
offered a cash bribe to a Sixty Minutes
cameraman to stop filming: a first in Sixty
Minutes history. After the program aired, federal
agents must have decided it was bad for New
Jersey’s image to have bribes offered on national
television; FBI agents tailed the Gunite CEO and
18 R. Smothers, “Democratic Donor Receives Two-Year Prison
Sentence,” New York Times, March 5, 2005.
19See e.g. “The Power Brokers: How A Dozen Men Control New
Jersey Politics”, Asbury Park Press, October 24, 2004.
20 C. Horowitz, “Jim McGreevey And His Main Man,” New York
Magazine, Sep. 20, 2004.
found that he was offering unreported cash
bribes to public officials throughout the state of
New Jersey in return for government contracts.21
• In New Jersey the practice of exchanging money
for government contracts and favors is routinely
referred to as “Pay-To-Play,” leaving no doubt
that an illegal quid pro quo is the order of the
• By 2004 New Jersey had developed such a
national reputation for criminal corruption that
its interim Governor Richard Codey (appointed
by Jim McGreevey) decided that the State needed
a new slogan to repair its image. Contests to coin
a slogan were held around the state; herewith
some entries submitted by New Jersey’s own
“New Jersey: Pay to Play: Reap the Benefits.”
"New Jersey: Where the roads are paved and the
pockets lined with good intentions"
"New Jersey: Pay to play, play to win”.
"New Jersey: Corrupt and proud."
“New Jersey: Everything you’ve heard is true.”
"New Jersey: One state, under indictment."22
21 CBS Sixty Minutes, May 12, 1996.
22 M. Yant Kinney, “New Jersey: Who Needs A Slogan,” Philadelphia
Inquirer, Nov. 15, 2005.
The current race for United States Senator in New
Jersey is, once again, consumed exclusively with
whether the Democratic or Republican nominee is more
criminally corrupt. The U.S. Attorney for New Jersey
even took the unusual step of issuing -- during the
campaign -- a subpoena to the Democratic nominee for
Senate regarding possible illegal real estate dealings.
The Democratic Party promptly accused the U.S.
Attorney for New Jersey of being partisan, pointing out
that he and his family are major political contributors to
the Republican Party and the President of the United
And, so it goes. Amidst endless posturing, there is no
serious effort to end criminal political corruption in
New Jersey. Massive illegality by the leaders of
government undermines the rule of law and saps
confidence in every branch of government, including the
Petitioners respectfully urge this Court to issue the writ
to determine whether the federal Grand Jury can launch
its own investigations and presentments and fulfill its
historic and constitutional role as the “fourth branch of
government”: the critical backstop essential to
terminating criminal corruption in High Office.
B. Proceedings Below
The District Court denied Petitioners motion on January
3, 2006. See App. 2a.
The Third Circuit Court of Appeals granted summary
action on May 8, 2006. See App. 1a.
23 C. Mondics, “Menendez Hits US Attorney Over Subpeona”,
Philadelphia Inquirer, September 9, 2006.
Mr. Justice Souter granted an extension of time until
October 5, 2006 to file this petition for writ of certiorari.
REASONS FOR GRANTING OF THE PETITION
"The liberties of a people never were, nor ever will be,
secure, when the transactions of their rulers may be
concealed from them." Patrick Henry
"America will never be destroyed from the outside. If
we falter and lose our freedoms, it will be because we
destroyed ourselves." Abraham Lincoln
The Petition should be granted for several reasons.
First, the Third Circuit, in upholding the District Court’s
opinion that Grand Juries cannot make presentments,
directly contravened the language and history of the
Fifth Amendment of the United States Constitution.
Second, the opinion below reflects a split in the Circuits
that must be resolved. Third, Supreme Court dicta
suggesting that Grand Juries have autonomous power
conflicts with the Federal Rules of Criminal Procedure.
Fourth, this case raises the issue of whether a citizen’s
right to submit evidence of crimes to Federal Grand
Juries is protected by the First, Fifth and Fourteenth
Amendment to the Constitution. Finally, the Court
should grant the Petition to determine how Grand Juries
fit within the Separation of Powers scheme conceived
by the Founders.
A. The Third Circuit Order Countermands the
Fifth Amendment of the U.S. Constitution and
Places Squarely Before the Court The Issue Of
Whether A Provision of The Federal Rules of
Criminal Procedure Denying A Grand Jury’s
Autonomous Power Violates The Constitution
And Hundreds Of Years of Independent Action
by Grand Juries.
The Third Circuit, in granting summary action, upheld
the District Court. The core of the District court ruling
was that the Federal Rules of Criminal Procedure do not
allow “presentments”: investigations conducted solely
by the Grand Jury, without the assistance of
prosecutors. See App. at 7a. The District Court also held
that individuals cannot present facts directly to a Grand
The courts below relied on the notes of the advisory
committee to the Federal Rules of Criminal Procedure
Rule 7. ("Presentment is not included as an additional
type of formal accusation, since presentments as a
method of instituting prosecutions are obsolete, at least
as concerns the Federal courts."). FED. R. CRIM. P. 7
(a) adv. comm. note 4; see CHARLES A. WRIGHT,
FEDERAL PRACTICE AND PROCEDURE § 121, at 338
(1982). See App. 3a.
The constitutionality of this advisory rule was
prefigured by Justice Hugo Black, who dissented from
the decision to enact the Federal Rules of Criminal
“Whether by this transmittal the individual members of
the Court who voted to transmit the rules intended to
express approval of the varied policy decisions the rules
embody I am not sure. I am reasonably certain,
however, that the Court's transmittal does not carry
with it a decision that the amended rules are all
constitutional.” Fed. R. Crim. P., Orders of the Supreme
Court of the United States Adopting and Amending
Rules, Order of Feb. 28, 1966 (Black, J., dissenting). See
Renee B. Lettow, Reviving Federal Grand Jury
Presentments, 103 Yale L.J. 1333, 1342 n.50 (1994).
The Fifth Amendment to the United States Constitution
states: “No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury.” U.S. Const. amend. V.
In making a distinction between indictment and
presentment24, the Framers undoubtedly understood
that in colonial times Grand Juries acted as selfgoverning
bodies and used their time-honored powers to
make presentments independent of government
Both the language and legislative history of the
Constitution grant considerable autonomy to Grand
Juries and grant citizens the right to present information
to a Grand Jury of a crime. See Phillip E. Hassman,
Annotation, Authority of Federal Grand Jury To Issue
24 Black’s law dictionary defines presentment:
“The written notice taken by a Grand Jury of any offense,
from their own knowledge or observation, without any bill
of indictment laid before them at the suit of the
government. A presentment is an accusation, initiated by
the Grand Jury itself, and in effect an instruction that an
indictment be drawn.”
A similar procedure is described by Blackstone under the
heading of "Prosecution -- By Presentment":
"A presentment, properly speaking, is the notice taken by a
Grand Jury of any offense from their own knowledge or
observation, without any bill of indictment laid before them
at the suit of the king, as the presentment of a nuisance, a
libel, and the like; upon which the officer of the court must
afterward frame an indictment, before the party presented
can be put to answer it. W. BLACKSTONE,
COMMENTARIES at 301. (1854).
Indictment Or Report Charging Unindicted Person With
Crime Or Misconduct, 28 A.L.R. Fed. 851 (1976).
The ancient history of Grand Juries, both in England and
colonial America, demonstrates that these bodies acted
independently of prosecuting authorities. This was the
very purpose of the institution: to act as a bulwark
against tyrannical power and to provide an outlet for
grievances against corrupt officials.25
Grand Juries were enormously popular in the
Revolutionary period. Local Grand Juries refused to
indict the editors of the Boston Gazette for libeling the
25 The Grand Jury may be the oldest institution in America’s
criminal justice system:
It originated in 1164 when King Henry II signed the
Constitutions of Clarendon, which allowed for the use of an
accusing jury to charge all laity who were to be tried in
ecclesiastical courts. Two years later he established the
Assize of Clarendon, which was composed of twelve men
who would "present" those suspected of crimes to the royal
courts. These accusatory panels were progenitors of the
modern-day Grand Jury. See Helene E. Schwartz,
Demythologizing the Historic Role of the Grand Jury, 10
Am. Crim L. Rev. 701, 703-710 (1972); Marvin E. Frankel &
Gary Naftalis, The Grand Jury: An Institution on Trial
In pre-Revolutionary America, the Grand Jury took on a life
of its own. See Mark Kadish, Behind the Locked Door of an
American Grand Jury: Its History, Its Secrecy, and Its Process, 24
Fla. St. U. L. Rev. 9 (1996). American grand juries initiated
prosecutions against corrupt agents of the government, often in
response to complaints from individuals acting "in several of the
colonies as spokesmen for the people... and [as] vehicles for
complaints against officialdom." Frankel & Naftalis, supra, at The
Grand 107-116 (1977). Note, Powers of Federal Grand Juries, 4 Stan.
L. Rev. 77 (1951).
governor of Massachusetts and refused to indict the
leaders of the Stamp Act Rebellion. Frankel & Naftalis
at 11. A Philadelphia Grand Jury condemned the use of
the tea tax to compensate British officials, encouraged a
rejection of all British goods, and called for organization
with other colonies to demand redress of grievances.
Frankel & Naftalis, at 11-12. A Boston Grand Jury in
1769 actively sought to enforce the law against British
soldiers by indicting them for alleged transgressions
against citizens, such as breaking and entering private
homes. Richard D. Younger, The People's Panel: The
Grand Jury in the United States, 1634-1941, at 29-
30(1963). During the Revolutionary war, Grand Juries
indicted for treason those individuals who joined or
colluded with the British army.
The process for receiving private testimony, outside the
presence of the court officials, remained a common
practice for a century after the Grand Jury was
enshrined in the Bill of Rights. Richard Calkins, The
Fading Myth of Grand Jury Secrecy, 1 J. Marshall J.
Prac. & Proc. 18, 19 (1967). Throughout the 19th
century, Grand Juries often acted on their own initiative
in the face of opposition from a district attorney. It was
just such a Grand Jury that probed and toppled the
notorious Boss Tweed and his cronies in New York City
in 1872. Without the prosecutor's assistance, the Tweed
Grand Jury independently carried out its own
investigation in a district that had otherwise been very
loyal to Tweed. See Frankel & Naftalis, supra at 15.26
26 The Populist era of the early 20th Century saw some attempts to
revitalize the Grand Jury. During that period, ex-jurors acted to
protect the Grand Jury's powers by forming associations. The
Grand Juror's Association of New York was founded in 1912, and
began publishing The Panel, a pro-Grand Jury periodical, in 1924.
Chicagoans founded the Grand Juror's Federation of America in
Many states explicitly allow citizens to directly present
evidence of crimes to a Grand Jury.27
1931, and associations apparently sprang up in other localities. See
Renee B. Lettow, Reviving Federal Grand Jury Presentments, 103
Yale L.J. 1333, 1342 n.50 (1994). J. Jacoby, Origins and Development
of American Prosecutions (1980)
In the modern era, commentators still champion the
institution: "Grand juries come from the people. They are not
elected and thus are not involved in the political process. Their oath
and composition assure a non-partisan body. The Grand Jury does
its job with no axe to grind and then disperses." Peter Megargee
Brown, Ten Reasons Why the Grand Jury in New York Should Be
Retained and Strengthened, 22 Rec. Bar Ass'n N.Y. 471, 472 (1967).
Grand juries are seen as an essential link between the people and
the law, as non-political and non-partisan, as the people’s
conscience and having the confidence of the public.
27 Some states allow citizens to contact grand juries by statute, but
leave it to the discretion of the judge to allow the citizen to appear
before the Grand Jury. . See, e.g., Colo. Rev. Stat. § 16-5-204(4)(l)
("Any person may approach the prosecuting attorney or the Grand
Jury and request . . . to appear before a Grand Jury. . . . The court
may permit the person to testify or appear before the Grand Jury, if
the court finds that such testimony or appearance would serve the
interests of justice."); Me. Rev. Stat. Ann. tit. 15, § 1256); Neb. Rev.
Stat. § 29-1410.01; N.C. Gen. Stat. § 15A-626(d)
Other state statutes explicitly allow citizens to present
evidence of crimes to a Grand Jury. Tenn. Code Ann. § 40-12-104(a)
("Any person having knowledge or proof of the commission
of a public offense triable or indictable in the county may testify
before the Grand Jury."); Tex. Crim. Proc. Code Ann. § 20.09 ("The
Grand Jury shall inquire into all offenses liable to indictment of
which any member may have knowledge, or of which they shall be
informed by the attorney representing the State, or any other
West Virginia is unique because a citizen's right to
approach a Grand Jury and present evidence of an offense is a
constitutional right. State ex rel. Miller v. Smith, 285 S.E. 2d 500 (W.
Va. 1981). The Supreme Court of West Virginia stated the following
in justifying this right: “To fulfill its functions of protecting
individual citizens and providing them with a forum for bringing
complaints within the criminal justice system, the Grand Jury must
be open to the public for the independent presentation of evidence
The Framers of the Constitution were familiar with the
historic role of Grand Juries in this country and in
England. The Grand Jury was considered so important
by the nation’s Founding Fathers that the Bill of Rights
included an amendment guaranteeing the right of an
indictment by a Grand Jury for all infamous or capital
crimes. Its use was so accepted by the colonists
however, that it wasn’t even considered an issue to be
defended by Hamilton when The Federalist Papers were
published in support of the proposed Constitution.
Madison, for example, was specifically intent upon
keeping an independent Grand Jury in the new
Constitution because of that institution’s centrality to
fighting the Crown. Karson, The Implications of a Key-
Man System for Selecting a Grand Jury: An Exploratory
Study (2006) Southwest Journal of Criminal Justice,
Vol. 3(1). pp. 3-16. See Drew R. McCoy, The Last of the
before it. [Thus], ... any person may go to the Grand Jury to present
a complaint to it.” Id. at 504-05.
Other states permit citizens to contact grand juries by operation of
common law. See, e.g., King v. Second Nat'l Bank & Trust Co., 234
Ala. 106, 173 So. 498, 499 (Ala. 1937); In re Lester, 77 Ga. 143, 1886
WL 1476, at 3 (Ga. 1886) (holding that "any citizen" can prosecute
offenses or "give information of the fact to the Grand Jury"); State v.
Stewart, 45 La. Ann. 1164, 14 So. 143, 145 (La. 1893) ( In re Petition
of Thomas, 434 A.2d 503, 507 (Me. 1981); Piracci v. State, 207 Md.
499, 115 A.2d 262, 268 (Md. 1955) citing Brack v. Wells, 184 Md. 86,
40 A.2d 319, 321-24 (Md. 1944))); Hott v. Yarborough, 112 Tex. 179,
245 S.W. 676 (Tex. Comm'n App. 1922) ("It is unquestionably the
right, if not, in fact, the duty, of every one who has knowledge of
the commission of a criminal offense . . . to call to the attention of
the Grand Jury the facts within his knowledge . . . .") Cf. IN THE
MATTER OF THE GRAND JURY APPEARANCE REQUEST BY
LARRY LOIGMAN, ESQ., SUPREME COURT OF NEW JERSEY,
2005 N.J. LEXIS 303, ( April 11, 2005,).See, e.g., Morgan v. Null, 117
F. Supp. 11, 15 (S.D.N.Y. 1953) ("New York State has long denied
any right of a person to submit information to, or to be heard
before, a Grand Jury.)
Fathers: James Madison & the Republican Legacy 89
B. The Court of Appeals Holding Conflicts With
Rulings in Other Circuits On The Issue Of
Grand Jury Independence.
The Supreme Court should grant the petition because
there is a split in the circuits, with the Fifth Circuit
suggesting in dicta that Grand Juries are not
independent and at least one court in the 9th Circuit
ruling they are independent and have presentment
The Fifth Circuit cases relied on by the District Court
below (App. at 3a) do suggest that Grand Jury
presentments are obsolete but none so hold and the
language is dicta.28 These cases never reach the
question of whether federal Grand Juries can
independently issue presentments. United States v.
Briggs, 514 F.2d 794(5th Cir. 1975) really deals with the
issue of whether a Grand Jury can issue a report naming
an individual without indicting. See App. 3(a).29
The central case relied upon by the Third Circuit below
was United States v. Cox, 342 F.2d 167 (5th Cir. 1965)
involving an effort by a federal Grand Jury in Mississippi
to exert its autonomy and hold the U.S. Attorney in
28 The District Court below also relied on United States v. Christian
660 F.2d 892 (3d Cir. 1981) for the proposition that presentments
are obsolete in the federal system. That case ruled only that
presentments are not in force in the U.S. Virgin Islands and never
reached the constitutionality of the Federal Rules of Criminal
29 United States v. Zavala, 839 F.2d 523, 529 (9th Cir. 1988), cert.
denied, 488 U.S. 831, 102 L. Ed. 2d 62, 109 S. Ct. 86 (1988), also
relied on by the Third Circuit below, only addresses the issue of
presentment in the dissent.
contempt for failing to obey the Grand Jury’s order to
indict a group of persons in Mississippi. This
extraordinary case, with multiple opinions, dissents and
concurrences, occurred in the racially charged
atmosphere of the 1960’s in which it appeared that a
white jury wanted to indict African-American
defendants. Although a narrow 4-3 majority concluded
that the Executive Branch thorough the U.S. Attorney
General must sign an indictment, a majority
concurrence written by judge Wisdom, also suggested
the following: “A criminal presentment based on the
Grand Jury's own knowledge or on knowledge furnished
by others may be in disuse in federal courts, but it has
not been read out of the Constitution.” Id. at 189
(Wisdom J., concurring specially) citing Hale v. Henkel,
1906, 201 U.S. 43, 62, 26 S.Ct. 370, 50 L.Ed. 652. n12 See
also Blair v. United States, 1919, 250 U.S. 273, 280, 39
S.Ct. 468, 63 L.Ed. 979 and Sullivan v. United States,
1954, 348 U.S. 170, 173, 75 S.Ct. 182, 99 L.Ed. 210; Kuh,
The Grand Jury 'Presentment'; Foul Blow or Fair Play,
55 Col.L.Rev. 1103 (1955).30
In United States v. Cox there was even disagreement as
to what constitutes a presentment. Some judges read a
presentment to mean simply that anyone can present
evidence to a Grand Jury; others argued that
presentment means the Grand Jury has a power to indict
on its own. This is an additional reason that this Court
ought to grant the petition for certiorari.
30 United States v. Coachman, 243 U.S. App. D.C. 228, 752 F.2d 685,
689 n.23 (D.C.Cir. 1981) also relied on by the Third Circuit, held
only that the "use of an adequate indictment has become a
constitutional imperative and never reached the question of
whether the Grand Jury has independent presentment powers.
In a Northern District of California case, United States v.
Smyth, 104 F. Supp. 283, 287 n.1 (N.D. Cal. 1952),
decided after the adoption of the Federal Rules of
Criminal Procedure, Chief Judge Fee concluded that:
"grand jurors . . . may initiate prosecutions based on
information received from persons who have no
connection officially with them." Id. at 295. Squarely
before the court was the issue of whether Grand Juries
can receive information from sources independent of
the prosecutor and whether Grand Juries have
independent presentment power. The case holding
answered both questions in the affirmative.
Judge Fee elaborated the distinguished pedigree of the
“The institution of the Grand Jury is a
development which comes to us out of the mists
of early English history. It has undergone
changes, but has been remarkably stable because
the institution has been molded into an
instrument of democratic government,
extraordinarily efficient for reflecting not the
desires or whims of any official or of any class or
party, but the deep feeling of the people. As such,
with its essential elements of plenary power to
investigate and secrecy of its deliberations, it was
preserved by the Constitution of the United
States not only to protect the defendant but to
permit public spirited citizens, chosen by
democratic procedures, to attach corrupt
conditions. A criticism of the action of the Grand
Jury is a criticism of democracy itself.
The Grand Jury developed a stubborn tenacity of
its own. Ever since they wrote 'Ignoramus' upon
the bill of indictment presented by the Crown
against the Earl of Shaftsbury, it has been held
an inviolable tradition that they need follow the
orders or instruction of the judge neither as to
what they consider nor as to whom they indict or
fail to indict. The Grand Jury is similar to the
trial jury, who may convict notwithstanding
positive instructions to acquit and who may
pardon notwithstanding a direction to find guilty.
Unquestionably, the Grand Jury are under no
necessity to follow the orders of the prosecutor.
They can present an indictment whether he will
or no. Indeed, they may have a presentment
contrary to the direct orders of a judge, the
prosecutor for the King or the Chief Executive.
This power of the Grand Jury springs from
inherent qualities. The jurors are instruments of
the people of the community. They reflect the
sentiment of the particular locale- the fama
publica. In their character as representatives,
they may call for witnesses and documents which
may verify or negative the suspicions or rumors
of crime which affect the neighborhood. In his
character as witness, each may speak of those
things which he himself has observed. In
England the private person who claimed a crime
has been committed could lay an indictment
before the Grand Jury. Although private
prosecutions as such have been abandoned in the
country, the grand jurors retain enough of this
tradition that they may initiate prosecutions
based on information received from persons who
have no connection officially with them.
Under the Federal Constitution, a Grand Jury
may either present or indict. The word
'presentment' technically characterizes the
process whereby a Grand Jury initiates an
independent investigation and asks that a charge
be drawn to cover the facts should they
constitute a crime. The authority to initiate
independent investigations cannot be taken away
without erasing the word 'presentment' from the
fundamental law of the land.
The Grand Jury breathes the spirit of a
community into the enforcement of law. Its
effect as an institution for investigation of all, no
matter how highly placed, creates the élan of
democracy. Here the people speak through their
chosen representatives. This feature has been
largely disregarded by the critics. But it is the
essence of the rule of the people. The grand
jurors may commit serious errors. But the voters
are not deprived of suffrage because of
occasional mischances.” Id. at 291-296.
C. The Supreme Court in Hale and Stirone
Suggested That Grand Juries Are Autonomous
In Contradiction To the Advisory Notes To the
Federal Rules of Criminal Procedure. This
Conflict Needs To Be Resolved.
The Supreme Court has often suggested in dicta that
Grand Juries are independent of federal prosecutors,
language that is directly at odds with the Third Circuit
holding here. Moreover, the Supreme Court opinions
date from both before and after the enactment of the
Federal Rules of Criminal Procedure. As the Supreme
Court has written, "the very purpose of the requirement
that a man be indicted by Grand Jury is to limit his
jeopardy to offenses charged by a group of his fellow
citizens acting independently of either prosecuting
attorney or judge." United States v. Stirone, 361 U.S.
212, 218 (1960); see United States v. Sells Engineering,
Inc., 463 U.S. 418, 430 (1983) ("The purpose of the Grand
Jury requires that it remain free, within constitutional
and statutory limits, to operate independently of either
prosecuting attorney or judge.'")
The Supreme Court emphasizes the linkage between the
constitutional right to Grand Jury indictment and the
Grand Jury's institutional independence. The Fifth
Amendment right is not simply a technical right to have
a Grand Jury sign the prosecutor's indictment, but
rather a "right to have the Grand Jury make the charge
on its own judgment," a constitutional entitlement that
the Court describes as a "substantial right." Stirone, 361
U.S. at 218-219 (refusing to allow trial court to amend
Grand Jury indictment).
According to the Supreme Court, the Grand Jury is
"entitled to determine for itself whether a crime has
been committed." R. Enter. Inc., 498 U.S. at 303. In this
view, the Grand Jury has broad subpoena powers
because it needs to inquire into "all information that
might possibly bear on its investigation until it has
identified an offense or has satisfied itself that none has
occurred." Id. at 297.
In 1906 the United States Supreme Court dealt with the
question of whether Grand Juries could be restricted
from straying into investigations of issues not formally
presented to them by prosecutors. Hale v. Henkel, 201
U.S. 43 (1916). The Court held that it was "entirely
clear... under the practice in this country," that grand
jurors may proceed upon either their own knowledge or
upon the examination of witnesses brought before them,
"to inquire for themselves whether a crime cognizable in
the court has been committed." See generally Note, The
Grand Jury as an Investigatory Body, 74 Harv. L. Rev.
590 (1961). See also Frisbie v. United States, 157 U.S.
160, 163, 15 S. Ct. 586, 587, 39 L. Ed. 657, 658 (1895)(“But
in this country the common practice is for the Grand
Jury to investigate any alleged crime, no matter how or
by whom suggested to them...”)
D. The Third Circuit Ruling Decided Adversely to
The First, Fifth and Fourteenth Amendment
Rights of Citizens To Directly Submit Evidence
To Grand Juries.
In Woods v. Georgia 370 U.S. 375 (1962) the U.S.
Supreme Court held that individuals have First, Fifth
and Fourteenth Amendment rights to present
information to a Grand Jury:
“Particularly in matters of local political
corruption and investigations it is important that
freedom of communication be kept open and that
the real issues not become obscured to the Grand
Jury. It cannot effectively operate in a vacuum. It
has been said that the ‘ancestors of our 'grand
jurors' are from the first neither exactly accusers,
nor exactly witnesses; they are to give voice to
common repute.’ Id. at quoting 2 Pollock and
Maitland, History of the English Law (2d ed.
These provide independent constitutional grounds for
the Court to grant the petition.") See also, State ex rel.
Wild v. Otis, 257 N.W.2d 361, 364 (Minn. 1977) ("[A
citizen]… is free to attempt to get the Grand Jury to take
action, and under [Minnesota court rules], the Grand
Jury can permit an aggrieved citizen to appear as a
witness for this purpose."), cert. denied sub nom. Wild
v. Otis, 434 U.S. 1003, 98 S. Ct. 707, 54 L. Ed. 2d 746
E. The Third Circuit Ruling Would Leave The
Grand Jury As An Appendage Of The Executive
Branch and Violate Separation of Powers.
By placing the Grand Jury under the complete control of
prosecutors, the Third Circuit ruling violates the very
Separation of Powers scheme central to the United
States Constitution, raising grave constitutional
The Framers of the Constitution were massively focused
on avoiding the corruption of societies throughout
history. Steeped in Ancient history and literature, the
Framers entire concept of constitutional democracy
based on Separation of Powers was informed by their
profound desire to avoid the tyranny not just of George
III, but of autocrats through the Ages. The eminent and
historically-minded John Adams analogized to the
Roman Republic to explain the alarming threat to the
foundations of English liberty by corrupt legislators.
“The government of England” he said (quoting Roman
historian Sallust), had descended to the level where "the
Roman republic was when Jugurtha left it, having
pronounced it a 'venal city, ripe for destruction if it can
only find a purchaser.' "
Adams words could describe parts of the American
Republic in the twenty-first century.
The Founders solution was to create a balance of power
scheme that relied on institutions to curb the debased
actions of men. The Grand Jury was just such an
institution. Often called the “fourth branch” of
government, the Grand Jury has for many years of this
Republic been central to independently and
autonomously rooting out corruption in High Office.
This is not a Democratic or Republican issue; it is not an
ideological issue. Rather, this issue goes to the very
question of what institutions are necessary and
constitutionally mandated for the functioning of a
This Court need not grant a petition to review the
autonomy of Grand Juries in every context; it could
simply make a limited inquiry as to whether autonomy is
merited on the specific issue of criminal political
If ever there was a time in American history that a
revitalized institution – dedicated to its historic role –
was required, that time is now. If ever the Supreme
Court needed to clarify the role of this fundamental
entity, that moment has arrived.
The petition for a writ of certiorari should be granted.
Carl J. Mayer, Esq.
MAYER LAW GROUP
66 Witherspoon Street,
Princeton, New Jersey
Bruce Afran, Esq.
10 Braeburn Drive
Princeton, NJ 08540
Ted Rosenberg, Esq.
321 New Albany Road
P.O. Box 97
739 Parry Avenue
Palmyra, NJ 08065
(any footnotes trail end of each document)
IN RE: PETITION OF CARL J. MAYER, ESQ.
Carl J. Mayer, Esq. Appellant
U.S. District Court of New Jersey (Trenton): No. 05-
Present: SLOVITER, MCKEE AND FISHER,
1. Motion by Appellee, USA, for Summary Action.
2. Response by Appellant in Opposition to Motion
for Summary Action.
The foregoing motion for Summary Action is hereby
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
IN THE MATTER OF THE APPEARANCE OF
CARL J. MAYER, ESQ., et al. BEFORE A
FEDERAL GRAND JURY
MISC. NO. OS-33 (SRC)
CHESLER, District Judge
THIS MATTER comes before the Court on a motion
(docket entry #1), filed by Petitioners, requesting this
Court to: (1) impanel a special grand jury to examine
alleged violations of federal racketeering and related
laws; (2) permit the Petitioners to present evidence to
this special grand jury "autonomously and
independently" of the United States Attorney's Office;
and (3) issue a declaratory judgment that the Advisory
Committee Notes to FED. R. CRIM. P. 7 prohibiting
federal grand juries from returning presentments1 is
unconstitutional and that presentments to federal
grand juries are specifically permitted in the federal
system. The Court, having considered the papers
submitted by the parties, for the reasons set forth
below, and for good cause shown, DENIES the
A "presentment" is "an accusation that is initiated by
the grand jury itself."2 38A C.J.S. Grand Juries § 85
(2005). The distinction between a presentment and an
indictment is that an indictment is prepared by a
prosecutor and approved by the grand jury, while
presentments are charges prepared by the grand jury
on its own initiative. 1 C. WRIGHT, FEDERAL
(CRIMINAL) PRACTICE AND PROCEDURE §
121, at 58 (1999). See also In re Grand Jury
Proceedings, Special Grand Jury 89-2, 813 F.
Supp.1451,1462 (D.Colo.1992) ("In contrast to an
indictment, a presentment is `an accusation initiated by
the grand jury itself, and in effect an instruction that an
indictment be drawn."') (quoting United States v.
Briggs, 514 F.2d 794, 803 n, 14 (5th Cir.1975)).
Historically, the charges in a presentment would need
to be restated in formal terms by the government in the
form of an indictment in order to initiate criminal
proceedings. S. BEALE, W. BRYSON, J. FELMAN,
M. ELSTON, GRAND JURY LAW AND
PRACTICE, § 1.8 (2d Ed. 2005).
In modern practice, presentments are no longer used in
the federal grand jury system. Under the Federal
Rules of Criminal Procedure, there are specific
provisions to empower federal grand juries to file
indictments, provided that they are "signed by an
attorney for the government," but there are no
provisions that enable federal grand juries to deliver a
presentment. See FED. R. CRIM. P. 7. The Advisory
Committee Notes accompanying Rule 7 explain this
omission by noting that "presentments as a method of
instituting prosecutions are obsolete, at least as
concerns Federal courts." FED. R. CRIM. P. 7(a), adv.
comm. note 4.
The Petitioners in this case are seeking to present their
information to a federal grand jury "autonomously and
independently" of the US Attorney's Office. (Pl. Br. at
1.) To grant the Petitioners' motion would require a
finding that federal grand juries have the ability to
employ their investigatory and charging powers
without the participation of the US Attorney's Office or
other government attorneys acting as prosecutors in
the process. The current federal rules governing the
formation and function of grand juries grant no
authority for returning presentments, leaving federal
grand juries without the statutory ability to bring
criminal charges without the participation of a
government attorney. In order to overcome this
statutory limitation and grant the Petitioners' motion,
this Court would need to find adequate constitutional
grounds to overrule the relevant federal rules of
criminal procedure regarding federal grand juries and
their ability to return presentments. For the reasons
noted below, however, this Court finds that there is no
constitutional or statutory right for individuals to
bypass government prosecutorial authorities and
present allegations or evidence of a crime directly to a
federal grand jury, nor are the current federal rules
which deny federal grand juries the authority to
return presentments unconstitutional. Accordingly,
the Petitioners' motion is DENIED.
A. There is No Constitutional Right for Private
Citizens to Independently Bring Criminal Charges
and Allegations Before a Federal Grand Jury.
Under the Fifth Amendment, "[n]o person shall be
held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a
Grand jury." U.S. CONST, AMEND, V. The
Petitioners allege that "individuals have First, Fifth
and Fourteenth Amendment rights to present
information to a [g]rand jury." (Pl. Br, at 3.) To
support this contention, Petitioners have noted a
series of historical precedents that all support the
notion that a grand jury functions as an independent
body, authorized to act "independently of either
prosecuting attorney or judge." (Pl. Br. at 3 (quoting
U.S. v. Stirone, 361 U.S. 212, 218 (1960).) This
independence, however, is designed to "`afford a
safeguard against oppressive actions of the
prosecutor or court,"' not to allow individuals to
present to a grand jury independently of the
government prosecutor. Gaither v. U.S., 413, F.2d
1061, 1066 (D.C. Cir.1969) (quoting U.S. v. Cox, 342
F.2d 167,170 (5th Cir.1965) (emphasis added). The
constitutional role of the grand jury is to serve as "a
check on prosecutorial power, not a substitute for the
prosecutor," In re Grand Jury Proceedings, Special
Grand Jury 89-2, 813 F.Supp. 1451, 1462
The constitutionally enshrined role of the grand jury
lies in its ability to protect individuals against
unfounded criminal prosecutions by conducting an
independent inquiry to determine whether there is
probable cause to believe a crime has been
committed. United States v. Sells Eng'g, 463 U.S.
418, 423 (1983). As the Fifth Circuit noted:
The constitutional requirement of an indictment
or presentment as a predicate to a prosecution
for capital or infamous crimes has for its
primary purpose the protection of the individual
from jeopardy except on a finding of probable
cause by a group of his fellow citizens, and is
designed to afford a safeguard against
oppressive actions of the prosecutor or a court.
The constitutional provision is not to be read as
conferring on or preserving to the grand jury,
as such, any rights or prerogatives. The
constitutional provision is, as has been said, for
the benefit of the accused.
U.S. v. Cox, 342 F.2d 167,169 (5th Cir. 1965) (emphasis
While the grand jury serves a dual purpose, acting as
"both a sword and a shield of justice - a sword because
it is the terror of criminals, [and] a shield because it is
the protection of the innocent against unjust
prosecution," the grand jury "earned its place in the
Bill of Rights by its shield, not by its sword." Id. at
186 (Wisdom, J., concurring); see also SUSAN W.
BRENNER, GREGORY G. LOCKHART, 2
FEDERAL GRAND JURY: A GUIDE TO LAW
AND PRACTICE, §2.2 ("The clause [(of the Fifth
Amendment)] was intended to preserve a shield
against unwarranted prosecution.") Under the Fifth
Amendment, the grand jury affords constitutional
protections to preserve the rights of the accused.
There is, however, no corresponding constitutional
right for individuals to use the power of a grand jury
to levy criminal accusations.3 See Cox, 342 F.2d at 186
(Wisdom, J., concurring) (noting that when the role of
a grand jury "goes beyond inquiry and report and
becomes accusatorial, no aura of traditional or
constitutional sanctity surrounds the grand jury").
Accordingly, the Petitioners cannot claim a
constitutional prerogative that would allow them to
independently bring criminal charges and accusations
before a federal grand jury.
B. There is No Constitutional Requirement for
Grand Juries to be Empowered to Return
The constitutional role of the grand jury in protecting
the accused does not necessarily require that the
grand jury be empowered to return a presentment.
The Fifth Amendment ... does not offer a grand
jury a choice between presentment or
indictment. Unless there is a bill of indictment
preferred to the grand jury at the instance of
the Government, there can be no indictment. It
is entirely in the hands of the Government
whether to submit an accusation to the grand
jury leading to presentment in the form of an
indictment and serving as the initial pleading in
a criminal prosecution.
U.S. v. Cox, 342 F.2d 167,186 (5th Cir. 1965) (Wisdom,
J. concurring). While presentments are no longer used
in federal practice, the requirement for adequate
indictments in order to commence prosecutions
adequately fulfills the constitutional requirements of
the Fifth Amendment in protecting the rights of the
accused.4 See United States v. Coachman, 752 F.2d
685, 689 n. 23 (D.C.Cir.1981) (noting "use of an
adequate indictment has become a constitutional
imperative"); 1 C. WRIGHT, FEDERAL
(CRIMINAL) PRACTICE AND PROCEDURE, §
121, at 518 (1999) ("The use of a presentment is
obsolete in the federal courts[,] ... [a]ccordingly,
where the constitutional provision is applicable, an
indictment must be used.") Because there is no
constitutional requirement that grand juries be
empowered to issue presentments, the Petitioners'
request that this Court issue a declaratory judgment
that the Advisory Committee Notes to FED. R.
GRIM. P. 7, which specifically preclude federal grand
juries from issuing presentments, are
unconstitutional is DENIED.
C. There is No Statutory Authority to Permit the
Petitioners to Bypass Government Prosecutorial
Authorities to Directly and Independently Present
Allegations of Criminal Activity to a Federal Grand
Grand juries, as an institution, were adopted from the
common law and, through the Fifth Amendment,
"became a fundamental part of our country's system
for the prosecution of crime." U.S. v. Christian, 660
F.2d 892, 897 (3d Cir.1981) (citing Ex Parte Bain,121
U.S. 1, 6 (1887); U.S. v. Calandra, 414 U.S. 338, 343-44
(1974)). Grand juries, however, are "creature[s] of
statute." Id. at 898 (citing In Re Mills, 135 U.S. 263,
267 (1890)). The statutory authority for grand juries
is provided for and limited by the Federal Rules of
Criminal Procedure. Id. at 900 n13 (citing U.S. v.
Fein, 504 F.2d 1170 (2d Cir.1974)).
The statutory authority that governs federal grand
juries does not grant the authority to these grand
juries to issue presentments. Id. at 901 (noting that
"nothing in the language of [FED. R. CRIM. P.] 6 and 7
lends any support to the proposition that any federal
grand juries are authorized to make presentments"); see
also FED. R. CRIM. P. 7(a), adv. comm. note 4 (noting
"presentments as a method of instituting prosecutions are
obsolete, at least as concerns Federal courts"). Absent
the statutory authority to make presentments, the sole
means for a federal grand jury to accuse a suspect of a
crime is through an indictment. Indictments, by
definition, require the signature of an attorney for the
government. FED. R. CRIM. P. 7(c)(1). This means that,
without the participation of a government attorney, the
grand jury would be statutorily limited to a purely
investigatory purpose, since it could not return either a
presentment or an indictment.
While grand juries serve a vital investigatory function
within the federal system, there is no authority for grand
juries to conduct an "investigation for its own sake." Id. at
900. Although the federal rules do not specifically forbid
purely investigatory grand juries that investigate but
cannot indict, the Third Circuit has found "nothing in
[FED. R. CRIM. P.] Rule 6(a) which can be fairly
construed to authorize them." Id. at 900. A grand jury's
investigatory power, therefore, is tied to their ability to
culminate in a disposition of whether or not to accuse a
suspect of a crime. Id.
This leaves no statutory authority for a federal grand jury
to hear information from the Petitioners that is presented
"autonomously and independently" (Pl. Br. at 1) of the
United States Attorney's Office. Without the support of a
government attorney, a grand jury's investigation would
extend beyond the statutory scope of its investigatory
powers since there would be no means for it to culminate
in "a disposition that furthers the prosecutorial process."
Christian, 660 F.2d at 900. This leaves no statutory
authority to allow individuals, such as the Petitioners, to
bypass the governmental prosecutorial authorities in
order to directly and independently present criminal
charges and allegations to a federal grand jury.
Accordingly, the Petitioners' request to present
directly to a federal grand jury is DENIED.
The Court appreciates what appears to be a good faith
effort by the Petitioners to assist in the investigation
and prosecution of public corruption allegations. While
public corruption must be vigorously investigated and,
where violations of the law are found, actively
prosecuted, the means being sought by the Petitioners
to accomplish this goal are contrary to the
constitutional and statutory authority that governs
the operation of federal grand juries. For the reasons
stated above, and for good cause shown, the
Petitioners' motion is DENIED. An appropriate form
of order will be filed herewith.
Date: January 3, 2006
Stanley R. Chesler, U.S.D.J.
1The specific section of the Advisory Committee Notes
at issue states that "presentment is not included as an
additional type of formal accusation, since
presentments as a method of instituting prosecutions
are obsolete, at least as concerns the Federal courts."
FED. R. CRIM. P. 7(a), adv. comm. note 4.
2 The presentment played an important role in the
historical functions of the grand jury:
Presentments played a major role in pre-
Revolutionary America, and continued to be
important for the first half of the nineteenth
century. During this period, state and federal
grand juries investigated not only criminal
activity, but also matters of public concern such
as the state of local services and the possibility
of corruption among public servants. As one
author notes, they performed many functions
that are now carried out by civil servants and
Grand juries that discovered criminal conduct
could return charges, either by way of an
indictment or a presentment, but those inquiring
into noncriminal misconduct had to find some
other way of acting on what they discovered.
They developed the practice of issuing reports,
which for some reason became known as
"presentments." Unlike the common law
presentment, which was a statement of criminal
charges, these presentments levelled no charges
and, indeed, often concerned matters having
nothing to do with criminal conduct. Colonial
grand juries, for example, issued presentments
that were concerned with matters as diverse as
maintaining street lamps, bridge repair and the
state of public morality. After the Revolution,
grand juries actively monitored civic affairs,
especially the conduct of public officials.
SUSAN W. BRENNER, GREGORY G.
LOCKHART, FEDERAL GRAND JURY: A
GUIDE TO LAW AND PRACTICE, §3.3
3Granting individuals direct access to grand juries can
run a substantial risk of undermining the very rights
of the accused that the Fifth Amendment is designed
to protect. As the New Jersey Supreme Court
[G] iving private persons the right of direct
access to the grand jury would be fraught with
abuse. Permitting prosecutorial bypass might
encourage some persons not to bring pertinent
information promptly to law enforcement
authorities in the hope of gaining direct contact
with the grand jury. In some cases, a private
person might be bent on pursuing an ill-motive
or vindictive agenda. . . . For instance, political
candidates, on the eve of an election, might
charge their opponents with fraud or some
other nefarious activity and request admission
to the grand jury.
In the Matter of the Grand Jury Appearance by Larry
S. Loigman, Esq,183 N.J. 133,145 (2005). Giving
individuals direct access to the grand jury and
removing the governmental prosecuting authorities
from the process would undermine the prosecutor's
screening authority and almost certainly "increase the
likelihood that wrongful indictments would be
returned," thereby undermining the very rights of the
accused that the Fifth Amendment seeks to protect.
Id. at 147. See also In re: New Haven Grand Jury, 604
F.Supp. 453, 460 (D.Conn.1985) ("[A] rule that would
afford the general public unsupervised access to the
grand jury is a rule calculated to empower the
mischievous and the criminal and injure the innocent.")
4 Unlike indictments, presentments pose unique risks
to the rights of the accused. A presentment has the
force of a judicial document but, unlike an indictment,
lacks "the right to answer and to appeal." In re: Grand
Jury Proceedings, Special Grand Jury, 813 F. Supp.
1451, 1462 (D.Colo. 1992) (citations omitted). A
presentment "accuses, but furnishes no forum for
denial." Id. "An indictment may be challenged-even
defeated[, but t]he presentment is immune." Id.
RELEVANT PROVISIONS INVOLVED
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put
in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for
public use, without just compensation.
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein
they reside. No state shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among
the several states according to their respective
numbers, counting the whole number of persons in each
state, excluding Indians not taxed. But when the right
to vote at any election for the choice of electors for
President and Vice President of the United States,
Representatives in Congress, the executive and judicial
officers of a state, or the members of the legislature
thereof, is denied to any of the male inhabitants of such
state, being twenty-one years of age, and citizens of the
United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the
proportion which the number of such male citizens shall
bear to the whole number of male citizens twenty-one
years of age in such state.
Section 3. No person shall be a Senator or
Representative in Congress, or elector of President and
Vice President, or hold any office, civil or military,
under the United States, or under any state, who,
having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a
member of any state legislature, or as an executive or
judicial officer of any state, to support the Constitution
of the United States, shall have engaged in insurrection
or rebellion against the same, or given aid or comfort to
the enemies thereof. But Congress may by a vote of
two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United
States, authorized by law, including debts incurred for
payment of pensions and bounties for services in
suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any state
shall assume or pay any debt or obligation incurred in
aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any
slave; but all such debts, obligations and claims shall be
held illegal and void.
Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
Federal Rules of Criminal Procedure (2006)
III. THE GRAND JURY, THE INDICTMENT, AND
Rule 7. The I Indictment the Information
ndictment and (a) When Used.
An offense (other than criminal contempt) must
be prosecuted by an indictment if it is punishable:
(A) by death; or
(B) by imprisonment for more than one year.
An offense punishable by imprisonment for one
year or less may be prosecuted in accordance with
FED. R. CRIM. P. 7 (a) adv. comm. note 4; see
CHARLES A. WRIGHT, FEDERAL PRACTICE
AND PROCEDURE § 121, at 338 (1982).
"Presentment is not included as an additional type of
formal accusation, since presentments as a method of
instituting prosecutions are obsolete, at least as
concerns the Federal courts."