Cops, DA on front row as Prof. Greenholtz tutors public on ‘essential elements’ in RICO ruling

Lawyers as far away as Knoxville were roped into to state service in defending any of 55 poor people indicted in a massive RICO prosecution in Chattanooga. (Photo David Tulis)
Judge Tom Greenholtz, citing constitutional protections of all people, including poor African-Americans, has wrecked large parts of the state’s RICO case in Hamilton County. (Photo David Tulis)

Criminal court judge Tom Greenholtz’ rejection of state government’s mass RICO prosecution in Chattanooga is a primer for citizens who want to learn how to fight for their rights and reassert their faded liberties.

By David Tulis / NoogaRadio 92.7 FM

Judge Greenholtz’ main grievance against the work of the grand jury and its overseer, district attorney Neal Pinkston, is that the state fails to establish the crucial elements of a crime. Judge Greenholtz says the state fails to provide defendants with the essential elements of the charge of conspiracy, thus denying them due process rights of notice, so that they might prepare a defense.

In a 19-page Feb. 7 ruling obscurely titled “Memorandum opinion granting, in part, Mayes motion no. 13,” Judge Greenholtz blesses 55 people with dismissals, a second tranch of such orders. Several people still face trial as part of the massive case affecting only black people in Hamilton County. The case is styled State of Tennessee v. Arterrius Allen et al.

In the matter of conspiracy and RICO, the essential element has to be the criminal attempts in unison, Specifically, a “meeting of the minds between all co-conspirators.” The statute is extraordinarily complex and bad law, but Judge Greenholtz works with it to determine and sift out his essential duty as judge, which is due process and protecting the rights of the people while allowing the state to prosecute public offenses and crimes.

Just as defendants in the case and their attorneys argued for dismissal, so people in Tennessee can use matters of law explained by Judge Greenholtz. The verities explored in his analysis are to be understood as means to resist illegal state, county and city action against their rights. I would apply them to oppressive usages and customs under pretended authority of Tenn. Code Ann. § Title 55, motor and other vehicles.

The remarkable opinion is a public document intended, as are all court rulings, to be consumed en masse by the people for their edification and by government employees for their amelioration and improved job performance. ‡

RICO truisms and Title 55

Solutions delivered to defendants such as Arterrius Allen, Darrell Armstrong, Jamaal Atkinson and Quadarius Bowling are there for us to examine in our effort to reduce human trafficking under the noble and virtually invisible practice of Jim Crow, the ultra vires traffic stop which is a feeding mechanism for the police-industrial complex.

Briefly, in a social engineering prosecution under the transportation law, the essential element is privilege that gives sessions and criminal court judges subject matter jurisdiction. Without privilege alleged and proven, there is no case. If the prosecutor doesn’t allege the essential element of state transportation privilege, the complaint is void, indictment is void. If a cop does not establish the essential element of commerce, every “driving on revoked” or “driving on suspended” or “light law” case is absurd under the double nickel — Title 55 — and the judge must dismiss for lack of subject matter jurisdiction. This concept is a highlight of the Greenholtz’ RICO opinion.

‘Sheer denial of due process’

“[T]he Grand Jury did not identify the actual substantive racketeering crime(s) that the co-conspirators agreed to commit. Instead, the Grand Jury has alleged the possible existence of at least four separate RICO conspiracies, each with different substantive objects and agreements. In so doing, the Grand Jury has failed to provide notice of the ‘nature and cause of the accusation’ brought against the accused. See Tenn. Const. art. I, § 9 (providing ‘[t]hat in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof’).” Says Judge Greenholtz: “[T]he Grand Jury’s allegations must be sufficiently and simply stated such that the ultimate trial jury can agree as to what the objective of the conspiracy was, or what racketeering crime or crime the Defendant actually conspired to commit.”

In your case, whatever it may be — whether transportation (Jon Luman, tradesman) or extortion (Tim Boyd, commissioner) — the charge must be narrated in terms of the statute. The state must plead against you in language of the law you allegedly have offended. The police report, the indictment have to plead the purported facts against you in terms of the statute. And from the beginning, every element of the charge has to be identified, or the case must be thrown out, according to court rulings confirmed by Judge Greenholtz.


“‘Where an indictment fails to charge an essential element of an offense, the indictment will fail to place the defendant on notice, and the charge should be dismissed. These principles also apply in conspiracy cases under Tennessee law. Indeed, ‘if the indictment fails to include an essential element of the offense, no crime is charged and, therefore, no offense is before the court.’ Importantly, the application of our criminal law ‘must be limited in scope to cases defined by the statutory language.’” See State v, Amanns, 2 S.W.3d 241,245 (Tenn. Crim. App. 1999).

Judge Greenholtz sprinkles gems in his footnotes, such as these cites about the folly and irrelevance of any prosecution by Neal Pinkston that skips essential elements.

“Conviction upon a charge not made would be sheer denial of due process” State v. Hughes, 371 S.W.2d 445 (Tenn. 1963) (providing that a lawful accusation is an essential jurisdictional element without which there can be no prosecution) (emphasis added). Another is State v. Dixon, 03C01-9602-CC-00051, 1997 WL 36844, “It is an elementary rule of law that an accused cannot be required to defend against, or be convicted of, a crime that is greater than the crime alleged in the charging instrument. Thus, an accused cannot be convicted of a felony if the charging instrument does not contain an essential element of the felony. Under these circumstances, the accused may only be convicted of a misdemeanor, if the charging instrument alleges the essential elements of the misdemeanor offense. An accused cannot be validly prosecuted or convicted of a criminal offense under color of a charging instrument which fails to allege a crime.”

Enlivening. Liberating.

Judge Greenholtz cites as an example a child neglect case in which the defendant os charged with child abuse. The grand jury alleged aggravated child abuse, but its indictment “did not allege that he treated B.S. in such as manner as to inflict injury, which is an element of child abuse. Instead, the indictment alleged that he treated her in such a manner as to affect her health and welfare, which is an element of child neglect.” 

My heavily annotated printout of Judge Tom Greenholtz’ RICO ruling indicates my belief that his scholarship and extraordinary jurisprudence are intended to help us citizens to better secure our rights and guard against careless laws and haphazard criminal prosecutions. (Photo David Tulis)

The grave fault of the indictment: It “failed to put him on notice as to which offense he must defend against, aggravated child abuse or aggravated child neglect.”

Here, then, appears a solution to Title 55 abuse in sessions and higher courts, the entirety of which thus far is upheld by courts of appeal as part of Tennessee deep state legal fiction-making. 

Defendants must code plead and demand evidence of all the essential elements from the beginning. And Mr. Pinkston, who has been under transportation administrative notice since March 2018, knows from notice the essential elements in traffic criminal prosecution. 

Mr. Pinkston knows his prosecutions are in error and done with in faith, and Judge Greenholtz today is signaling him not to come to Hamilton County criminal court with indictments under Title 55 without proper legal foundation. I argue that hardly any transportation prosecutions have a proper foundation, and my notice gives grounds for tort action and bar grievances for bad faith oppressive acts by state actors under color of law.

Careful, careful — no ‘duplicitous’ indictment

Judge Greenholtz rules against the state because there is a “variance” between the facts alleged and the charging instrument.

The term variance comes from a 1994 case. “When the evidence adduced at a trial does not correspond to the elements of the offense alleged in the charging instrument, there is a variance. Generally, the evidence establishes the commission of an offense different from the offense alleged in the charging instrument. The variance rule is predicated upon the theory that an accused cannot be charged with one offense and convicted of a completely different offense” because of the people’s constitutional due process rights. State v. Keel, 882 S.W.2d 4l0,416 (Tenn. Crim. App. 1994)

A variance creates what judge Greene holds calls a duplicitous indictment, one that shares the main fault against us citizens by giving inadequate notice.

Defendants have a right to know exactly with what they are being charged, and Judge Greenholtz gives useful reminders about the state’s obligations.

“Because Mr. Mayes is entitled to know ‘the nature and cause of the accusation’ brought against him, one must ask: which of the different racketeering crimes did Mr. Mayes conspire to commit? One of them? More than one of them? All of them? One simply cannot know on the face of the Grand Jury’s own presentment. And, this is a problem.”

“The fact that the superseding presentment possibly alleges more than one object, or more than one agreement, in its allegations of a RICO conspiracy gives rise to serious issues of fair notice and due process,” the ruling states. “Tennessee law has long prohibited duplicitous indictments, which are indictments that ‘charge two or more distinct and separate offenses in a single-count indictment.’ The reason for this long-standing prohibition is clear: to ensure that a defendant is provided adequate notice of the allegations; to prevent a violation of double jeopardy principles; and to ensure a unanimous jury verdict.”

He cites a U.S. circuit court ruling: “The vice of duplicity is that a jury may find a defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense. By collapsing separate offenses into a single count, duplicitous indictments prevent the jury from convicting on one offense and acquitting on another. Therefore, duplicitous indictments implicate the protections of the Sixth Amendment guarantee of jury unanimity.” See United States v. Campbell, 279 F.3d 392,398 (6th Cir. 2002) (citations and internal quotation marks omitted)

The fellowship of the finger — those accusers in body armor and blue uniforms and those others in skirts and sports jackets sweating out police overload in the DA’s office — must “properly allege” all the elements of the crime and this task is “its most essential task” in providing Mr. Mayes and other defendants with due notice and due process.

How court gains jurisdiction

Judge Greenholtz makes clear that in a criminal case against you — say, under Title 55 — a proper defense argues that police and prosecutor actions fail to evoke the court’s authority by showing a lack of subject matter jurisdiction.

“Where an indictment fails to charge an essential element of an offense, the indictment will fail to place the defendant on notice, and the charge should be dismissed. These principles also apply in conspiracy cases under Tennessee law. Indeed, ‘if the indictment fails to include an essential element of the offense, no crime is charged and, therefore, no offense is before the court.’ Importantly, the application of our criminal law ‘must be limited in scope to cases defined by the statutory language.’” See State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992) 

‘4 corners of the statute’

The Hamilton County judge clearly is uneasy with the state RICO law, delving into its gnarled legislative history starting in the 1980s. But he declares himself bound by the law and all its lawful provisions, submitting himself to the people’s will through their legislators and their enactments.

Of course, it goes without saying that this Court, which is charged with applying the law as it exists, is not free to “alter or amend statutes or substitute [its] policy judgment for that of the Legislature.” As our Supreme Court has recognized, ‘We note that even were we to agree that the State’s position *** this Court “does not typically function as a forum for resolution of public policy issues when interpreting statutes.” Consequently, we are bound by the law as it is, not as we would have it be, and to that end, we are not free to adopt constructions that are plainly contrary to the language of the statute. *** When the language contained within the four corners of a statute is plain, clear, and unambiguous, the duty of the courts is simple and obvious, to say sic lex scripta, and obey it.” See Kradel v. Piper Indus., Inc., 60 S.W.3d 744,749 (Tenn. 2001) 

The court is respectful of the general assembly’s RICO complexity trap. “Despite any potential policy concerns voiced by others to the contrary, this Court is not free to adopt a construction that is contrary to the language adopted by our legislature. After all, the General Assembly ‘holds the power to define criminal offenses and assess punishments for crimes. It is not this Court’s role to substitute [its] policy judgments for those of the legislature.’”

Because the grand jury is controlled externally by judges and by Jerry Sloan, a “helpful” member of Mr. Pinkston’s office, it rendered an indictment in the state’s management of poor blacks. A constitutional grand jury free of state meddling, without such benevolent aid, would have issued a no-true bill in the case. Its common people members would have been unable to understand the statute, and would have refused to act to enforce such a complex and muddled law, thereby nullifying its pernicious effects against the common law and against constitutionally guaranteed liberties.

‡ This post adds emphases that are often not in the original, so it might further this publication’s task of good government.

➽ From Black’s 4th, on essential elements. “The essential elements of ‘deceit’ are representation, falsity, scienter, deception, and injury. Ochs v. Woods, 221 N.Y. 335, 117 N.E. 305, 306. Such a description of the thing defined, including all essential elements and excluding all nonessential, as to distinguish it from all other things and classes. Wilson v. Else, 204 Iowa 857, 216 N.W. 33, 37. The essential elements of “due process of law” are notice and opportunity to be heard and to defend in orderly proceeding adapted to nature of case, and the guarantee or due process requires that every man have protection of day in court and benefit of general law. Dimke v. Finke, 209 Minn. 29, 295 N.W. 75, 79; Di Maio v. Reid, 13 N.J.L. 17, 37 A.2d 829, 830. FALSE SWEARING. The essential elements of “false swearing” consist in willfully, knowingly, absolutely and falsely swearing under oath or affirmation on a matter concerning which a party could legally be sworn and on oath ‘administered by one legally authorized to administer it. Smith v. State, 66 Ga.App. 669, 19 S.E.2d 168, 169. SANE MEMORY. Sound mind, memory, and understanding. This is one of the essential elements in the capacity of contracting; and the absence of it in lunatics and idiots, and its immaturity in infants, is the cause of their respective incapacities or partial incapacities to bind themselves. 

The David Tulis show is 1 p.m. weekdays, live and lococentric.

Get your TAN now: Transportation Administrative Notice creates traffic court defense, cause of action vs. cops

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