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FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
UNITED STATES OF AMERICA, )
Plaintiff, )
)
vs . ) No. CR-95-51-BLG-JMB
) No. CR-95-117-BLG-JMB
LEROY M. SCHWEITZER, ) No. CR-96-41-BLG-JMB
RODNEY O. SKURDAL, ) No. CR-96-47-BLG-JMB
STEWART WATERHOUSE, )
EMMETT CLARK, RUSSELL LANDERS, )
ELWIN WARD, )
Defendants. )
_________________________________)
P R O C E E D I N G S
The above-entitled matter came on for hearing in open court before the
HONORABLE JAMES M. BURNS, Senior U.S. District Judge, on July 17, 1996,
commencing at 9:00 a.m.
THE COURT: Thank you. Please be seated. Thank you. Please be seated.
Thank you. Please be seated.
Well, the first -
DEFENDANT SCHWEITZER: All rise for the King's Bench. The director is
speaking and this is a court under Article III jurisdiction, common law
venue -
THE COURT: Would you wait please, sir.
DEFENDANT SCHWEITZER: Okay. I'll wait.
THE COURT: Thank you very much, sir.
DEFENDANT SCHWEITZER: Thank you.
THE COURT: Thank you, Mr. Schweitzer. Thank you very kindly.
I was just going to mention for the benefit of some of the folks here
that this is really a very difficult decision, because I don't know
whether to use the big chair or the small chair.
But I do express my admiration for you. And I intend to engage in a
little bit of what I suppose some craved person might think is kind of
an impolite way to become acquainted with some folks that I haven't
become acquainted with before.
And in a moment, after I have said a word or two about myself -- I do
want to mention that this gathering here this morning was scheduled for
nine o'clock, and as is indicated by the clocks in this room -- it is
really quite unusual for two clocks in a federal courtroom to be even
within five minutes of each other -- I'm sure you would be entitled to
refer to me as the Late Judge Burns, but if in your charity you can omit
that, I would personally appreciate it.
And I want to say a word or two about myself. I think it is useful in a
gathering of this kind that the parties and the lawyers get to see the
whites of the eyes of the judge who is handling the case or the cases.
And so it may not be completely inappropriate if I mention to you that I
grew up in a lumber camp about 30, 40 miles east of Portland, Oregon,
and attended a one-room school up at the camp. And I proceeded to enter
the school, in the year I entered there wasn't anybody in the first
grade, so I was put in the second grade, my first year in school.
And the next year there was kind of a movable population of the folks
who lived in the logging camp with their families, and the next year
there wasn't anybody in the third grade, so I went into the fourth
grade.
Well, here was obviously a scholastic quiz like you couldn't believe,
and it went on that way.
In any event, ultimately, I finished education and graduated law school,
1950. And in 1952 I went out to a very small community in Southeastern
Oregon as the District Attorney County of Harney County, that is the
prosecuting attorney. And the name of the town was Burns. And it is not
true, despite any rumors to the contrary, that the name was changed
after I moved there.
In any event, I then went back to Portland. And in 1966 -- where I
practiced for ten years -- I became a lawyer who knew the Governor Mark
Hatfield, and he appointed me to the State Circuit Court in Portland,
Oregon, Multnomah County. And I served pretty close to six years.
And -- by the way I should mention, I think it is also important for the
parties and the lawyers to see the whites of the judge's eyes. And so I
think this little taking of your time has a good benefit, I believe,
potential.
And in 1972, I became a lawyer -- or a state court judge who knew the
senator. Mark Hatfield was senator. And I was appointed by Richard
Milhous Nixon to the federal court. And last month was the 24th
anniversary of my having been on the federal court.
My professional experience has included the fact that I taught the
subject of sentencing at the National Judges College in Reno, Nevada,
for a total of 22 years. And was lucky enough to be one of the joint
authors of the Sentencing Handbook, which is put out by that
institution, which provides national legal education for -- judicial
education for judges all around the country.
And I don't claim to know very much about sentencing. The only thing I
say about that is that I done know very much about sentencing, which is
kind of why a couple years ago I suggested that the folks at the college
that they better give me a sabbatical because they should start drumming
up some fresh young sentencing so-called experts.
And we all recall, of course, that an expert is a country boy who is 100
miles away from home. And that an expert opinion is an ordinary guess
dressed up in evening clothes. So I expressly disclaim any claim to
expertise.
And I would like to start out by having a short conversation with Mr.
Stewart Waterhouse. And it is a rather interesting coincidence that the
first time that he and I met, we had a conversation which was held in
this building four weeks ago today, on the 18th of June.
And he was in the courtroom, along with Mr. Lynch, who by the way had
car trouble that way and was unavoidably delayed, but that didn't bother
us.
But simply that you remember, Mr. Waterhouse, I think, that you and I
had a conversation, it wasn't real lengthy, I want to say maybe 15
minutes, but the precise time isn't that important. And it was a polite
conversation. You were polite in that conversation we had, weren't you?
DEFENDANT WATERHOUSE: I think so, Your Honor. Your Honor, I'd like to
bring something to your attention respectfully, if I may.
THE COURT: Sure.
DEFENDANT WATERHOUSE: In the interest of Justice and preserving the
presumption of innocence while in your presence, may the U.S. marshals
remove my leg irons?
THE COURT: Well, I regret to tell you that there is a -- there is a
component of discomfort, and I have to pretty well follow the lead of
the marshal's service in a gathering of this kind. And so, I lament it,
but I deny the request.
Now, I want to ask you this: On that conversation on June 18th, I was
polite with you?
DEFENDANT WATERHOUSE: Yes, Your Honor, you were very polite.
THE COURT: And indeed, by way of further spelling that out a little bit,
because of the fact that our time was somewhat short on the 18th, and
the following Monday, June 24th, we had, you and Mr. Lynch and I, had
another conversation, which was over the phone, and you were in custody
at the detention facility; that's correct?
DEFENDANT WATERHOUSE: Yes.
THE COURT: And Mr. Lynch was in his office in Great Falls?
DEFENDANT WATERHOUSE: Yes.
THE COURT: And I was in my office in Portland?
DEFENDANT WATERHOUSE: That's correct.
THE COURT: And we kind of picked up on and talked for awhile, I don't
recall the exact amount of time. I want to say it was probably about 20
minutes or something like that, but the precise time isn't important.
But in that conversation you were polite, weren't you?
DEFENDANT WATERHOUSE: Yes, Your Honor.
THE COURT: Okay. And was I polite?
DEFENDANT WATERHOUSE: Yes, Your Honor.
THE COURT: Okay. And indeed we have had yet a third conversation, which
was one day last week, I forget the exact date of it, it was the same
setting, you in the detention facility here, Mr. Lynch in his office in
Great Falls, and I was in my office in Portland, correct?
DEFENDANT WATERHOUSE: That's correct.
THE COURT: And that was -- that was polite all the way around the horn,
wasn't it?
DEFENDANT WATERHOUSE: Yes, Your Honor. And I want to thank for you that.
THE COURT: Okay. And I want to thank you for your politeness. And so it
seems to me that we should -- we have some things to work on here today,
some of which is involved, for example, Mr. Schweitzer, somewhat
differently than others and so forth.
I think the most important thing to do is be to, if you are comfortable
doing this, each of you who are seated at the table there, recite your
name, or I can recite it for you, just so that the record shows who is
in the room.
DEFENDANT SCHWEITZER: The Court being advised in the premises, Article
III jurisdiction, Supreme Court jurisdiction, original and exclusive,
the advisory jury being present, grand jury. And we will proceed under
the extradition proceeding.
And to keep from embarrassing too much the system, we will bring up the
Classified Informations Act. I haven't had time to get it all public,
the publication has been sent down to the center for publication, so for
any public interest, anybody that wants to join in, we'll be setting our
rules -
Go ahead. You got a question?
THE COURT: Well, excuse me, sir, I apologize for this.
DEFENDANT SCHWEITZER: Okay.
THE COURT: There is one other thing I want to mention before I heard the
statement that you were in the process of making. And I really do
express my apology for that.
But there was one other thing I want to mention, important to the
record, in connection with identifying who is here and so on.
DEFENDANT SCHWEITZER: Okay.
THE COURT: And that is -- just be seated just a moment, it won't take
very long, please, sir. I should have done this right at the start.
I don't intend to set any precedent for the District of Montana, but all
parties, both represented and not represented, and all lawyers in the
room have an automatic exception to the fact that I'm not wearing a
robe.
And all of those persons in the room have an automatic exception to the
bow tie that I have, which has got to be utterly astounding and hardly
in the concept with the notion of judges wearing robes in courtrooms.
And for the shirt, for that matter as well, you have an automatic
exception to all of those. And each one has ten days within which to add
additional reasons why you would urge an exception on the basis of the
Judge's clothing, or garments, ten days, and they will be deemed timely.
Sorry about that, Mr. Schweitzer.
DEFENDANT SCHWEITZER: I understand your ten-day time limit comes under
the Title 18 Section -- or Title 28 Section 18 -- or 1581(f). When we
put out the Court of International Trade, which is already filed on the
left side of the file, confidential information, in this court, and
taking into exception the color of the flag there and the executive
court, we do understand this.
And you did ask for the name, I am Chief Justice Leroy Michael in common
law venue, original and exclusive jurisdiction, Title 28 Section is
1251, and Court of International Trade, is exclusive jurisdiction. And
we have called the secretary back in New York at LaInfinite Plaza
(phonetic). And we do not have the docket number yet, but we will run
with the docket number that I filed with this Court on the left side of
the file.
So the extradition proceeding could commence at this point in front of
our advisory jury. This is not trial by jury, this is trial with jury.
And are there any objections to the King's Bench hearing the extradition
process at this time?
THE COURT: Well, well, you will have ten days within which to add in
written fashion the document you referred to and it will be deemed
timely.
I would like to observe some of the niceties that I believe I must
observe as a judge.
DEFENDANT SCHWEITZER: Okay, but - -
THE COURT: Excuse me a minute, Mr. Schweitzer.
DEFENDANT SCHWEITZER: Okay, but - -
THE COURT: To be sure that the record shows that the folks here on your
side of the courtroom, Mr. Landers, Mr. Clark, Mr. Waterhouse, Mr.
Schweitzer, Mr. Skurdal, Mr. Ward, if I mispronounce anybody's name, I
apologize. And in addition, the attorneys are here who are referred to
in general fashion of standby counsel who have been rejected.
And I would appreciate it if each of those attorneys would, just by
remaining seated, identify yourself for the benefit of the record. And
we'll move around the room here so that we have the identity of the
attorneys who are here in whatever capacity.
You could start over on this side with the first standby, just sing out
your name, sir.
MR. WARREN: Paul Warren, Your Honor.
THE COURT: A11 right.
MR. COTTER: My name is Mike Cotter.
THE COURT: Thank you.
MR. JACKSON: Greg Jackson.
THE COURT: Thank you.
MR. OBIE: Jim Obie
THE COURT: Thank you.
MR. WERNER: Mark Werner.
THE COURT: Thank you.
MR. LYNCH: Jeff Lynch.
THE COURT: Thank you.
MR. HOOVESTAL: Palmer Hoovestal.
THE COURT: Thank you.
MR. JOHNSON: Alan Johnson.
THE COURT: Thank you. Rob Stephens.
MR. STEPHENS: Yes, Your Honor.
THE COURT: Rob Stephens is here.
MS. SWANSER: Lisa Swanson.
THE COURT: Thank you.
MR. MASSMAN: Joseph Massman.
THE COURT: Thank you.
MR. HUDSPETH: Steve Hudspeth, Your Honor.
THE COURT: Thank you.
MR. KEITH: John Keith.
THE COURT: Thank you.
MR. FAIN: Bruce Fain.
THE COURT: Thank you.
MR. VARNES: Kelly Varnes.
THE COURT: Thank you.
MR. KELLEHER: Bob Kelleher.
THE COURT: Thank you.
MR. PARKER: Mark Parker.
THE COURT: Thank you.
MR. HARRINGTON: Cort Harrington.
THE COURT: Thank you.
MS. HOLTON: Wendy Holton.
THE COURT: Thank you.
MR. NORCROSS: Bryan Norcross.
THE COURT: Thank you. And then now on the -- on the golfer's left, if
you want to say it that way, on the golfer's left.
MS. MATTUECCI: Sherry Mattuecci.
THE COURT: Ms. Mattuecci. Sherry Sheel Mattuecci, U.S. Attorney.
MR. ROSTAD: Carl Rostad, Your Honor.
THE COURT: Mr. Carl Rostad. MR. SEYKORA: Jim Sekora, Assistant U.S.
Attorney.
THE COURT: Jim Seykora.
MR. PARKS: Rob Parks, Department of Justice.
THE COURT: Thank you.
MR. VIERTHALER: Dan Vierthaler, FBI.
THE COURT: Thank you.
MR. JACKSON: Randy Jackson, FBI.
THE COURT: Thank you. We do have a number of items that we need to
discuss. For example, we have a request by two of the gentlemen who have
been named as standby counsel asking to be relieved of that obligation,
and I'll take that up at the proper time. One came from Mr. Jackson, I
believe late last week, or middle of last week to my office in Portland.
And we'll take that up a little bit later. I wasn't able to get out a
ruling on that before leaving over the weekend to come up here for this
session.
Now, specifically we have the matter as well which deals with Mr.
Schweitzer and Mr. Rostad, who is an Assistant U.S. Attorney in -- you
are in Great Falls, sir?
MR. ROSTAD: Yes, Your Honor.
THE COURT: And that deals, Mr. Schweitzer, with the matter relating to
the cases which were commenced in 1991 and 1992, I believe. And they had
been assigned to Judge Paul Hatfield.
One of the indictments involved four charges of misdemeanor willful
failure to file a tax return.
DEFENDANT SCHWEITZER: I make timely objection to that, Paul Hatfield has
drawn me an order that say he is off the case because I sued him for $77
million, and that is in the court in Butte. And Dora Lou Sevner has
access to it, and Lou Aleksich is under embezzlement and obstruction of
justice under RICO for denying the court files, because my Special U.S.
Marshal -- or U.S. Magistrate Rodney Owen here and Daniel Petersen -- or
excuse me, strike that, Daniel E. is not here today. And that I had told
at that prior hearing here will be brought up under subpoena power, but
that is not the issue here today. We're not going to waive extradition.
THE COURT: Thank you. And the cases which have been assigned to Judge
Hatfield have been assigned to me.
DEFENDANT SCHWEITZER: And I take exception because that is not
extraterritorial jurisdiction. You're paid by the Executive Branch of
the government in violation of the Constitution 222. You were not
appointed by the judicial branch of government who gets their fees -- or
their money comes from fees, taxes, costs. And that is a constitutional
violation.
THE COURT: Thank you.
DEFENDANT SCHWEITZER: Any -- any -- anybody want to object to that?
Otherwise I'm going to sustain that order.
THE COURT: Thank you. And -
DEFENDANT SCHWEITZER: No objections, right?
THE COURT: The record shows what it shows it shows, Mr. Schweitzer.
DEFENDANT SCHWEITZER: Sustained, 222.
THE COURT: Thank you.
DEFENDANT SCHWEITZER: So you can't sit on that matter either. That is a
moot issue at this point.
THE COURT: So noted.
DEFENDANT SCHWEITZER: Thank you.
THE COURT: And the second charge is one in which -- under Title 18 U.S.
Code 3146, in which you're charged with willful failure to
DEFENDANT SCHWEITZER: Stricken in its entirety, it -- same process. It
did not have venue, it didn't have jurisdiction, and I don't grant it.
Exact same exception that I took a minute ago.
Any objections? Sustained.
THE COURT: All right.
DEFENDANT SCHWEITZER: Those are stricken in their entirety, order of
release. That is a color of law process that will not be tolerated in
the King's Bench.
THE COURT: Okay. Thank you. Now, Mr. Rostad, you have a matter with
respect to that second charge, do you not?
MR. ROSTAD: Yes, Your Honor. At this time we would ask the Court to
either except a plea from Mr. Schweitzer or enter a not guilty on his
behalf to the failure to appear charge for his failure to -- allegedly
he failed to appear for his trial on April 13th of 19
DEFENDANT SCHWEITZER: I take objection, he is out of order. We haven't
granted the venue. And it is stricken in its entirety. He is also in
violation of 222. He doesn't have delegation of authority. We didn't
sign the delegation of authority.
I understand that the color of law that this is a federal building. But
this is a non-federal -- this is not on -- or you have no ceded sedes
for this Court to operate under Article III extraterritorial
jurisdiction in Title 18.
THE COURT: You have a copy of the appropriate document, information or
indictment?
MR. ROSTAD: Yes, Your Honor, I do.
DEFENDANT SCHWEITZER: King's Bench., plea in bar coram non judice.
THE COURT: Now, Mr. Schweitzer, I'm going to ask you, if you can, you
can -- you can add in written fashion anything you wish, but I hope you
would agree that politeness calls for our being able to take turns, so
to speak. And I insist on this. And it will take a very short period of
time.
And any objections which you may have to it over and above those you
have stated, I would appreciate if you would submit them in writing
within ten days and they will be deemed timely. But I insist on going
ahead.
Would you read the document, Mr. Rostad.
MR. ROSTAD: Yes, Your Honor. "In the United States of America versus
Leroy Michael Schweitzer, Criminal Cause 9228, Great Falls. The grand
jury charges that on or about the 13th day of April 1992, at Great
Falls, in the state and district of Montana
THE COURT: Could you sing out a little louder, my ears are older than
yours.
MR. ROSTAD: All right, Judge, I'll do that.
On or about the 13th day of April 1992 at Great Falls, in the state and
district of Montana, and other places, the defendant, Leroy Michael
Schweitzer, did knowingly fail to appear before the United States
District
Court for the District of Montana for trial as required by the
conditions of his release in violation of the Title 18, United States
Code, Section 3146.
A true bill. Signed by the foreperson of the grand jury, co-signed by
Mr. Seykora on behalf of Doris Poppler, the then United States
Attorney. "
THE COURT: And you deny entering any plea for the reasons you have at
least partly
DEFENDANT SCHWEITZER: The pleas have already been entered
THE COURT: Wait a minute, wait a minute, sir. I'm going to try to be
very polite, and I hope you will too, also. And I hope we're both
successful.
That -- that -- it is obvious that you would deny that you have any
responsibility to respond for the reasons you have partly stated. And
you can expand on those reasons in written fashion within ten days, they
will be deemed timely.
And I will enter a plea of not guilty on behalf of Mr. Schweitzer.
DEFENDANT SCHWEITZER: I object, take exception. You are from the
executive
THE COURT: Excuse me, excuse me. I have just -
DEFENDANT SCHWEITZER: You said I could make the objections.
THE COURT: Okay. I'm just about to finish, you see. And so I invite you
to briefly, but cogently, go ahead and expand here for a few moments,
over and above what you have already said with respect to that
particular charge.
DEFENDANT SCHWEITZER: Okay. The objection is this: I understand
extraterritorial jurisdiction, this is the King's Bench. I am the
Director of the Judicial Conference of the United States of America. And
I have given orders to the advisory jury, which is the grand jury, we
understand this very well. I have it in many, many writings. We are
making it public now, you'll be getting your report.
The only problem is we're under unlawful detainer, and we have not had
our deportation hearing, nor the extradition hearing, that is why I was
calling it up timely and under local rule, which we are published in the
local rules, we're going to make that public, that anything that I say
will be, as soon as those rules, and you can take it as oral rule, they
become effective immediately.
Now, the ten-day time limit that you put on me, is cast out for this
reason, because we're having problems getting -- in our unlawful
detainer, of getting the mail out that quickly. So I will get it out in
writing as quick as I can.
In the meantime, my oral objection is this: We have original, exclusive
jurisdiction in our one Supreme Court. It can't be taken away. We full
well understand this.
And thank you for not wearing your robe, because you do recognize that
the District Court of the United States is not the United States
District Court. And you seem to be quite well versed in the two
jurisdictions, in the division of the court. And that is all we have
ever asked for.
And I see the man smiling over here, he understands also. Quite a few of
you do because you have had very cunning people write those codes. And
we do understand the Color of the Code.
THE COURT: Thank you. And I appreciate your brevity, sir.
And as a matter of fact, there is a very interesting history to judges
wearing robes, and it goes back since -- at least six, 700 years to the
English system, where the first judges were actually clerics. And there
is a very interesting history of it.
For example, in Texas they never -- in the state courts they never did
wear robes until here recently about eight or ten years ago.
The measure on the ballot that insisted that the state court judges wear
robes, and the state court judges went out and campaigned very, very
vigorously against it. But they lost and so now they have to wear robes.
But I never thought it was a jurisdictional hang-up of any sort.
Although I do happen, by the way, Mr. Schweitzer, and gentlemen, and
everybody here, I don't wear a robe except when a jury is in the room.
And I faithfully follow the habit of when the jury has returned the
verdict, I come out with -hopefully with even a more vivid jacket than I
have even now, and the jury is utterly astonished, so that -- they get
over it pretty quickly.
And by the way, I should mention that Judge Shanstrom has a jury which
is about to go out, and he has to leave the office. And when that jury
returns its verdict, assuming it does today, then I will have to recess
this proceeding and take that jury waiver.
I did want to mention one other particular thing, with respect to a
group of documents, and this applies to several of you, there was --
where is that -- where is that name of that -- of the county recorder.
Right here.
I received this morning a packet of materials delivered over here to the
courthouse by -- from the office of Tony Nave, N-a-v-e, who is the
Yellowstone County recorder, I hope I have that title correctly. And it
consists of a series of filings which have been furnished that office by
one or more of the persons who are defendants here, and some are in the
courtroom now and some are not. And it is bulky material, bulky packet,
and Mr. Nave is unsure what to do, there were no filing fees paid.
And I thought that the way to handle this particular aspect is that we
will make a list of each of the documents by the title that they bear up
at the right hand up in the right-hand corner. For example, -- have to
get my specs out here because my eyes, like my ears, are getting old.
One of the them, for example, has a name of a Daniel Petersen at the
top, and down here in the caption, Daniel Petersen, Leroy Schweitzer,
Richard Clark, and so forth, and versus United States of America, and so
on and so forth. Peremptory mandamus audit, ex contractu, ex parte,
special appearance proceeding, and so forth. And there is a number of
these.
One is entitled, for example, from Mr. Petersen a Writ of Mandamus in
affidavit form, order to dismiss and release. And then it says here,
order to dismiss and release. And I thought I would suggest that we
could mechanically fill out a list of the -- these documents by
describing them and reciting the date that they bear, and that we have
the record in this case of showing the fact that these various documents
as listed on a list to be compiled which is accurate for each of the
separate documents, that the record in this case will show that in each
instance where one or more of Mr. Petersen, Mr. Schweitzer, et al, had
tendered to Tony Nave, the Yellowstone County recorder, those documents.
That way you can preserve the positions that you wish to assert by
having these documents tendered to the
Yellowstone County recorder. And that that might be a sensible and
rather expeditious way of preserving the record.
So I thought I would make that suggestion. And I invite, Mr. Schweitzer,
and I'll invite some of your colleagues as well, if they wish to sing
out on it, briefly, but cogently nonetheless. And please remain seated
if you are comfortable doing that or
DEFENDANT SCHWEITZER: That is fine.
THE COURT: -- whichever way.
DEFENDANT SCHWEITZER: I'll be quite brief. I'm sure you understand the
letters rogatory and the significance of it.
Those documents were put into the lawful Supreme Court under Article III
jurisdiction, Supreme Court jurisdiction, original and exclusive. The
clerk and recorders, whether they know it or not, are the Supreme court
clerks under common law.
And, therefore, if they brought into this executive tribunal, they'd
only be brought in by letters rogatory, so that you understand that they
were brought in from the foreign country.
Therefore, we could access extraterritorial jurisdiction, then this
court would turn into a District Court of the United States under the
division of the courts having the venue at the cedes, which is the
county commissioner's meeting rather than here under the fiction.
Is that clear?
THE COURT: Well,
DEFENDANT SCHWEITZER: Yeah, Rule 44.1, Foreign Judicial Notice, foreign
laws we'll bring it in that way.
THE COURT: All right. Okay. Fine. But in any event, the record in these
group of cases here, no matter how strongly you feel that they are
unlawfully here, and so on, but so that the record here will show what
it was, not only from the listing, but a set of copies which will
accompany that and will be here physically.
And then I intend to return this particular manila folder back to Mr.
Nave.
DEFENDANT SCHWEITZER: That is fine. THE COURT: Because it was -- the
documents were sent there on a day that
DEFENDANT SCHWEITZER: All right. Let me clear one more point HERE. I'll
try to be brief on this.
THE COURT: Yes, will you. Thank you.
DEFENDANT SCHWEITZER: You said something about the docket fees. The
reason why there are no fees tendered is because the docket fees have to
go on the taxes, costs against the losing party if it's civil, and taxed
against the state if it's criminal.
And, therefore, this Court sitting right now is a District Court of the
United States of America, sitting under the division of the courts,
which is common law, extraterritorial jurisdiction.
THE COURT: Thank you very much. Mr. Rostad.
MR. ROSTAD: Yes, Your Honor, I apologize for not earlier making a record
on the arraignment in 92-28. I should advise the Court and Mr.
Schweitzer of the possible penalty; that a conviction under Title 18
United States Code 3146 in these circumstances as charged against Mr.
Schweitzer would be a possible penalty of one year imprisonment and a $1
million fine, or both. And the imprisonment term must be consecutive to
any other term of which he is convicted.
THE COURT: Thank you.
MR. SCHWEITZER: I object, that is stricken in its entirety. It is out of
place in the court as ceded. This a --
THE COURT: Okay. Thank you, sir.
I neglected one nicety, which I surely want to cure; and that is, when I
was trying to create the record by noting the presence of the six who
were here, courtesy of the U.S. Marshal, and because they are -- all
except one is, I believe, a single name, but the second gentleman with
the white shirt there, Mr. Clark, and there are more than one Clark. And
I didn't give your first name, Mr. Clark. Could I have
DEFENDANT SCHWEITZER: Only the Christian name.
THE COURT: Excuse me, now I'm talking to Mr. Clark now, please, sir. I
asked you to be polite to me. I will do my very best to be polite to
you.
Can you supply your first name, sir.
DEFENDANT SCHWEITZER: Only the Christian, just say assist to the
counsels.
DEFENDANT EMMETT CLARK: Assist to the counsel.
THE COURT: All right. Thank you. Thank you.
MR. SCHWEITZER: And he is going to go by Emmett Brian in the proper
exclusive, original jurisdiction so that there is no color of law
attached to the name.
THE COURT: Thank you very much. Thank you very
Now, the matter of the motion of the -- excuse me, I beg your pardon,
the matter of the motions to withdraw by Mr. Gregory Jackson, standby
counsel, expert consultant for Mr. Skurdal, and a similar motion filed
by Michael Cotter, attorney for Emmett Clark, and I would like to invite
first, Mr. Jackson, if you could come forward please, sir.
MR. JACKSON: (Complied.)
THE COURT: And bearing in mind that my ears are a lot older than yours,
and when you get perhaps much too close to this vivid bow tie, but I'd
like to hear you briefly, but cogently, sir.
And I just have to -- in all fairness in propriety, I invite you to
expand upon the written material that was in the paper that we received
late last week, as I recall.
MR. JACKSON: Yes, Your Honor.
THE COURT: Yes, go ahead, please, sir.
MR. JACKSON: To be very brief, Your Honor, I have several matters now
pending that will need to be resolved within the next eight to twelve
months.
Primary among these matters, Your Honor, are that I'm appointed counsel
on two death penalty cases. One is State versus Ron Smith, which is
presently before the Montana Supreme Court. The other one is State
versus Lester Killsontop.
THE COURT: Those are described in the papers you filed.
MR. JACKSON: They are, Your Honor.
THE COURT: Yeah.
MR. JACKSON: And essentially the case involving Mr. Rillsontop is a very
complex case. We have listed over 100 witnesses. Many of those witnesses
are out of state. We have numerous expert witnesses, both within the
state and out of state that will require preparation.
That matter is set for hearing in January of this year. And following
the hearing it will require extensive post-hearing briefing and
arguments.
What I have not listed, Your Honor, in the motion that I have filed
before the Court is I have 11 different matters set for trial in the
next eight months. Most of those are jury trials. And according to my
assessment of these matters, probably ten of the eleven will surely go
to trial.
Frankly, the position that I am in is that time-wise, I just do not have
the time to continue on this matter.
And I would advise the Court that in the last proceeding before this
Court, Mr. Skurdal did inform the Court that he did not wish to be
represented by counsel. And I believe that primarily because of the fact
that counsel is not, according to his standards, properly certified to
represent him.
So given the fact that it is a standby counsel situation, and given the
fact that I do have this schedule that I have recited to the Court, with
clients that do in fact want representations, I feel that out of
fairness to those clients that I should request this Court to withdraw.
THE COURT: And your home base,
MR. JACKSON: It is, Your Honor.
THE COURT: Okay. All right. And what is -pardon me for being
geographically so ignorant. What is the distance -- I know I have got a
map back in the hotel room that has the distance on it. What is the
driving time, mileage?
MR. JACKSON: It is 245 miles, Your Honor.
THE COURT: Oh, okay. All right. Well, thank you very much. And then I'll
invite Mr. Cotter. And, Mr. Cotter, your home base is Great Falls?
MR. COTTER: Yes, sir, it is.
THE COURT: All right. I haven't seen your document specifically, but I
will look at it, and I'd appreciate it if you could summarize it as
briefly as you can, but cogently nonetheless.
And what is the mileage or driving time between -- I could ask Mr. Lynch
that because he has made the trip so often, but what is the driving time
or mileage to Great Falls?
MR. COTTER: Your Honor, it is 220 miles, and approximately three and
half hours one way, seven hours round-trip.
THE COURT: Okay. Fire away, Mr. Cotter.
MR. COTTER: Your Honor, I outlined in my request to withdraw as counsel
my trial calendar between now and April 1997. In that time frame, Your
Honor, I have about seven different trials, varying in length from three
days to approximately two weeks.
The office from which I come, I practice with my wife, there are only
two of us. And the additional burden to come to hearings in Billings are
significant upon us.
I did not outline my wife's trial calendar, but she has approximately
four cases set between now and April.
THE COURT: Okay. All right. Thank you very much.
MR. COTTER: And -- all right.
THE COURT: And, excuse me, Mr. Jackson, are you a sole practitioner or
do you practice with others?
MR. JACKSON: I have one partner, Your Honor.
THE COURT: Okay. Two of you.
MR. JACKSON: A two-man firm man.
THE COURT: Two of you. Okay. Well, I'll issue an order on this as
quickly as circumstances allow.
I should mention that, of course, my charge here is to do what I can as
promptly as circumstances allow to bring these cases toward a condition
of trial readiness. And there will be a number of sessions that we'll
have to have. And the precise dates of them can't be fixed at this time.
But we made some significant progress yesterday, which I expect to be
discussing later today with Mr. Seykora and Mr. Stephens and Mr. Parker
and so forth, with respect to the matter of unsealing of a very sizable
volume of material that had been the subject of earlier motions that had
been filed by Mr. Parker and Mr. Stephens and others like them.
And that the -- maybe I'm naive, but I think -- I think we made some
real progress. And the proof of the pudding is in the eating, of course.
But we will have that to canvass during the course of today and
tomorrow.
And the discovery panorama, if you will, is very, very complicated. And
it requires both the attorneys on the government's side of the ledger
and the attorneys on the defendant's side of the ledger to perform
enormous jobs of -performing their professional responsibility given the
status that they have in connection with this enormous amount of
material.
And I'm sure in the earlier occasions when I have been up here and have
had visits with a number of the lawyers whose names I have just
mentioned, that we have made -- we have made some progress, but I do
think that this week is kind of a pretty good break through.
And it may be that I'm more optimistic, I know that Mr. Rob Stephens
himself is never pessimistic, and I'm sure he is willing to be
optimistic even where he thinks maybe he shouldn't be.
But I just wanted to mention that that is a -it produces a real tough
chore in terms of scheduling of matters. The sheer numbers themselves
create some really tough problems. And I am going to try to do the very
best I can.
And I should mention one other thing, and that is that I have a bad
habit of getting up early in the morning and like to think that my
ability to think and analyze is pretty good first thing in the morning.
And I've recently been reading this wonderful book, it is the Library of
America Edition of Speeches, Letters, Miscellaneous Writings of Abraham
Lincoln and the Lincoln-Douglas Debates.
And I ran across a conversation that Lincoln had when he was discussing
the Dredscott case while he was in Congress, and it is a perfectly
wonderful kind of analysis for clearing up one's thinking.
And I was awfully glad that I am an early riser, because I had never
before gone to the trouble of the full bore of the statement made in
Congress by then Representative Lincoln before the Congress as regards
the Dredscott decision, it is a wonderful thing. And it really got me
started off very nicely this morning.
And so I didn't mean to run on at length, and - -
DEFENDANT SCHWEITZER: Duly noted.
THE COURT: And I have a quote or two that I can mention, I think not
inappropriately. And one from Justice Frankfurter, "Wisdom too often
never comes, so one ought not to reject it merely because it comes
late. "
And then another one again from Abraham Lincoln, his second annual
message to Congress, December 1, '62, "The dogmas of the quiet past are
inadequate to the stormy present. "
And that is a particularly interesting kind of a quotation to be able to
have at fingertip. So thank you very much, Mr. Cotter.
MR. COTTER: Thank you, Your Honor.
THE COURT: And we have disposed of that particular thing. And we have a
number of other items -
THE COURT: Excuse me. Mr. Skurdal.
MR. SRURDAL: Your Honor, I object as far as the one statement that this
gentleman made as far as denying counsel. I have never denied counsel. I
have demanded effective assistance of counsel of choice.
And pursuant to Rule 609, I hereby appoint Leroy Michael as my
assistance of counsel of necessity in law in order to preserve my common
law venue, and not waiving that, nor jurisdiction.
THE COURT: Thank you.
DEFENDANT SRURDAL: 609.
THE COURT: And, Mr. Skurdal, in connection with the conversations I have
had with Mr. Schweitzer, if you're of a mind to do so, you can put in
written fashion and expand upon that and send it in. And I'd like to
have it within ten days, and it will be deemed timely.
DEFENDANT SKURDAL: I'd have to object to the time limit without -- or
because of the conflicts we are having with the Yellowstone County
Detention Facility.
THE COURT: Yes, I understand. I understand. Mr. Ward, yes, sir, please.
DEFENDANT WARD: Yes, I would like to make the same statement, Your
Honor, that I appoint Leroy Schweitzer.
THE COURT: Okay.
DEFENDANT WARD: Leroy Michael, my assistance of counsel. Mr. Clark?
THE COURT: Do you want to adopt the same thing,
DEFENDANT CLARK: Yes, I do.
THE COURT: Do you, Mr. Landers?
MR. LANDERS: No, that is fine. Thank you.
THE COURT: What?
MR. LANDERS: No, that is fine. Thank you.
THE COURT: Well, okay. Excuse me, go ahead, Mr. Skurdal.
MR. SRURDAL: If I may, I have got paper work already filed, it just
hasn't got here yet, but besides Leroy Michael, it will be layer Daniel
E., Russell Dean, and Richard Emmett also will be assistance of counsel
of necessity in law.
MR. LANDERS: I agree.
THE COURT: Thank you. I also want to spend a few moments -- excuse me,
Mr. Ward, I didn't mean to cut you off, sir.
DEFENDANT WARD: By the same token I would like to appoint -
THE COURT: Okay.
DEFENDANT WARD: -- Rodney and Russell Landers as well as assistance of
counsel.
THE COURT: All right. Okay. Thank you very much. Thank you very much.
And we have some other items we want to talk about, but I do think it
would be useful if we take about a 15-minute recess at this time.
Mr. Davis, is that okay with you?
U.S. MARSHAL: That is fine, Your Honor.
THE COURT: All right. We'll be in recess for 15 , minutes. Thank you
very much. Thank you for your patience.
(Recess.)
THE COURT: Thank you. Please be seated. Thank you very much. Thank you
very much. Thank you for your patience.
In connection with the subject matter that was discussed at our earlier
session relative to the matter that Mr. Rostad presented earlier with
respect to the charges against Mr. Schweitzer, set of charges of willful
failure to file tax returns, and then the corresponding charge of
willful failure to appear, on which over the objection stated by Mr.
Schweitzer, there was an arraignment proceeding appropriate to the
occasion.
And in that regard, Mr. Schweitzer, and I invite you -- after you hear
what I have said, I invite you to make a statement as briefly as you
can, but cogently nonetheless, and with the usual ten-day -- ten-day
written ability to expand upon it.
In view of your situation with respect to those tow cases, I'm going to
appoint Mr. Tim Cavan of the Public Defender's Office, and Mr. Mark
Werner is here in the courtroom sitting in for Mr. Cavan today, I'm
going to appoint Mr. Cavan as standby counsel for you, Mr. Schweitzer,
for those two sets of cases -- or those two charges.
And now I invite you to -- thank you very much, Mr. Werner. Thank you
very much.
I invite you, Mr. Schweitzer, to remain seated if you are comfortable,
to state your position as briefly as you can, but cogently.
DEFENDANT SCHWEITZER: The so-called appointment is respectedly denied
and stricken from the record. And that I appoint competent as chief
justice the United States America to prosecute REET and for the
government. And the government I'm talking about is the foreign country
of Montana, duly noticing your own codes.
And as far as the indictment, I'll strike it right now because of a
challenge to the RE of the jury. It's 18 -or Title 28 Section 1866, says
under the random selection jury plan there has to be good cross-section
of the community, the attorney general upon seven days must dismiss the
indictment because it did not represent the qualified electors, which
are separate from statutory.
Is that clear?
THE COURT: Thank you, sir. Thank you. And the record so shows.
And with that understanding, then, the subsequent matters we take up do
not require the presence of the folks who are here courtesy of the U.S.
Marshals.
And I, to each of you, and Mr. Landers, Mr. Clark, Mr. Waterhouse, Mr.
Schweitzer, Mr. Skurdal, Mr. Ward, I express my appreciation to each of
you for your patience with me, and for the polite way in which you
conducted yourself.
And I am surely not going to claim that I start court on time so I can
be called the Late Judge Burns Willy-nilly, but I do hope that I have
been able to be polite with you folks, and you have been polite, and I
appreciate it very much.
And so the other matters we have on the calendar do not require the
presence of these folks here and the marshals can return them.
Thank you very much. Thank you very kindly.
DEFENDANT SCHWEITZER: Thank you for your presentment in court. I do want
to compliment you, I know it is a tough duty at this time, based upon
your admission that there is ignorance being lying dormant for many,
many years. I do respect what you have said, and I understand the
division of court and I know you do also.
THE COURT: Well, if I get the time, if I get the time, Mr. Schweitzer, I
will -- I am sure you will get a kick out of -- occasionally I have a
fun case, and I can send you an opinion I wrote about catching
butterflies in a national part. And then my doggie court opinion in
which I was ruling on the fate of a dog which had bitten llamas in
sensitive places in Central Oregon, and that the -- the setting in which
that occurred gave me a wonderful opportunity to -once in a while a
judge has a little bit of fun, and you could tell that I was unable to
resist, and I'll send you copies of those.
DEFENDANT SCHWEITZER: Thank you.
THE COURT: Thank you very much. Thank you very kindly.
(The defendants were removed from the courtroom.)
(This portion of the proceedings was concluded.)