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Supreme Court of the United States IN THE SUPREME COURT OF THE UNITED STATES Jian-yun (John) Dong - PETITIONER vs. The United States of America, U.S. Attorney's Office, South Carolina Division - RESPONDENT ON PETITION FOR A WRIT OF CERTIORARI TO UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT CASE NO. 17-4728 PETITION FOR WRIT OF CERTIORARI Jian-yun (John) Dong, M.D., Ph.D., pro se. LSCI, Butner P.O. Box 999 Butner, NC 27509-999 t QUESTIONS PRESENTED Briefly, an Agent of Defense Criminal Investigation Service of the Inspector General's Office of the Department of Defense obtained the search and seizure warrant under the color of law enforcement, and solely conducted the investigation, grand jury indictment and bringing charges against the Petitioner, a civilian, in this campaign contribution violation case without the approval of FEC. Appellant was convicted and sentenced for imprisonment. Upon appeal, the Appellate Court affirmed the conviction, ruling that military conduct civilian law enforcement without jurisdiction and in violations of Posse Comitatus Act and the federal statutes "are defects in instituting prosecution must be raised before trial," and "provide no remedy," and only repeated violations may be considered for a "special sanction of judicial deterrent." The rulings on PCA violations are inconsistent and contradicting among nearly every circuit of the court of appeals. Does the Third Amendment of the Constitution afford people the protection from military intrusion into civilian affairs, such as investigation and bringing charges against civilians for a political contribution violation? Does the provision of prohibiting the use of military as a posse comitatus in law enforcement proscribed in the Posse Comitatus Act, 18 U.S.C. §1385 and Domestic Security Act, 6 U.S.C. §466 deprive the military of jurisdiction in investigation and prosecution of civilians? Does Congress enact the Statutes 18 U.S.C. §1385, 6 U.S.C. §466 as jurisdiction removal rules? II t Is it constitutional to punish a defendant for a violation committed by a co-defendant, such as the amount of the campaign contribution made by another person? Is the appellate court's standard ruling unlawful that violations of Posse Comitatus Act (PCA) and its statutes "provide no remedy" for the victim of the violation, and these laws may be violated repeatedly before the court to consider the "possibilities" for "the special sanction of a judicial deterrent"? IM LIST OF PARTIES PETITIONER Jian-yun Dong, a/k/a John Dong LSCI, Butner P. 0. Box 999 Butner, NC 27509-999 RESPONDENT Beth Drake United States Attorney, South Carolina Division Nathan Williams Assistant United States Attorney 151 Meeting Street, Suit 200 Charleston, South Carolina 29401 iv & TABLE OF CONTENTS OPINIONS BELOW .1 JURISDICTION.................................................................................................................1 CONSTITUTION AND STATUTORY PROVISIONS INVOLVED.........................2 STATEMENTOF THE CASE...........................................................................................3 REASONS FOR GRANTING THE WRIT......................................................................15 CONCLUSION.................................................................................................................40 INDEX TO APPENDICES APPENDIX A: JUDGMENT issued by the United States Court of Appeals for the Fourth Circuit APPENDIX B: ORDER denying Motion for Rehearing or Hearing En Banc APPENDIX C: APPELLANT'S OPPOSITION TO THE BRIEF Of APPELLEE APPENDIX D: APPELLANT'S MOTION FOR REHEARING OR HEARING EN BANG APPENDIX B: APPELLANT'S SUPPLEMENTAL BRIEF FOR SENTENCING V 4 TABLE OF AUTHORITIES CITED CASES PAGE NUMBER Al-Marri, 534 F.3d 213 at 253-4 (4th Cir. 2007)................................18 Al-Murri v. Puccialli, 534 F. 3d. 213, at 253-4 (4th Cir. 2007)...............27 Bowles v. Russell, 551 U.S. 205 20...............................................29 Dreyer, 804 F. 3d at 1279-81 (11th Cir. 2015)...................................24 Giles v. California, 554 U. S. 353, 365 (2008)..................................31 Henderson v. Shinseki, 562 U.S. 428, 436, 439 (2011).........................29 Lightfoot v. Cendant Mortgage Corp. 137 S.Ct.353,196 L.Ed 2d 493(2017).............................................................................31 McCusheon v. FEC 572 US_, 134 S. Ct., 188 L Ed 2d 468 (2014).......27 McCusheon 752 US, 134 S.Ct., 188 L.Ed 2d 468...............................32 McCutcheon v. FEC 572 US, 134 S.Ct_, 188 L Ed 2d 468, (2014)......34 Mussachio v. United States, 136 S. Ct. 709 (2015).............................29 Re Bonner v. U.S. 151 U.S. 242, 14 S. Ct. 323, 38, L.Ed. 149, 151 (1893).................................................................................22 Reid, 354 U.S. at 33, 40; Laird v. Tatum, 408 U.S. 1, 15, 92 S. Ct. 2318,33 L.Ed. 2d 154 (1972) (Burger, C.J.) ................................................ 15 United States v. Floresca, 38 F.3006, 710 (4th Cir. 1994)....................37 United States v. Malloy 568 F.3d 166, 177-78 (4th Cir. 2009)................37 United States v. Redd, 161 F.3d 793, 795 (4th Cir. 1998)......................37 vi LI 4 United States v. Whitfield, 695 F.3d 288, 307 (4th Cir. 2012).................37 United Students Aid Funds, Inc. V. Espinosa, 559 U.S. 260, 130 S. Ct. 1367, 176 L. Ed. 2d 158 (2010)...........................................................22 U.S. v. Denedo, 556 U.S. 904, 173 L.Ed. 2d 1235 (2009)......................22 U.S. v. Walden, 490 F. 2d.. 372, 376 (4th Cir. 1974) ........................... 23 U.S. v. Wooten 377 F.3d 1134, 1140 (10th Cir. 2004)..........................23 STATUTES AND RULES 6 U.S.C. §466..................................................19,20,28,30 6 U.S.0 §466(a)(1),(4),(5)..............................................20 6 U.S.C. §466(b)......................................................20,33 10 U.S.C. 375........................................................28,30 18 U.S.C. §371.......................................8, 10,34,35,37,38,39 18 U.S.C. §441(e)........................................................34 18 U.S.C. §441(f)............................................8,10,34,38,39 18 U.S.C. §1385 ................................................ 19,20,28,30 28 U.S.C. §1254(l) .......................................................................... I vii 4 IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI Petitioner respectfully prays that a writ of certiorari issue to review the judgment below. OPINIONS BELOW The Opinion of the United States Court of appeals for the fourth circuit appears at Appendix A to the petition as is reported at LEXIS 9742 (4th Cir. 2018). The opinion of the United States district court is reported at JURISDICTION The date on which the United States Court of Appeals decided my case was April 18th, 2018 A timely petition for rehearing was denied by the United States Court of Appeals on the following date: on June 7th, 2018, and a copy of the order denying rehearing appears at Appendix B. The jurisdiction of this Court is invoked under 28 U.S. C. § 1254(1). 1 4 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Constitutional: The First Amendment of the Constitution Freedom of Speech The Third Amendment of the Constitution Free of military intrusion in civilian affairs and enforcement of law The Fourth, Fifth, and Sixth Amendment of the Constitution Due Process Clause Statutory: Posse Comitatus Act, 18 U.S.C. §1385 Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully use any part of the Army or the Airforce as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years or both. Domestic Security Act, 6. U.S.C. §466 (2002) Section 1385 of title 18, known as Posse Comitatus Act prohibits the use of the Armed Forces as a posse comitatus to execute the laws except in cases and under circumstances expressly authorized by the Constitution or Act of Congress. Congress reaffirms the continued importance of section 1385 of title 18, United States Code, and it is the sense of Congress that nothing in this Act should be construed to alter the applicability of such section to any use of the Armed Forces as a posse comitatus to execute the laws. 0111 A STATEMENT OF THE CASE The Third Amendment of the Constitution affords citizens of the United States the protection from military intrusion in civilian affairs. Congress enacted Posse Comitatus Act (PCA) and federal statutes prohibiting military from participation of law enforcement. However, the incidences of military participated law enforcement have increased dramatically since the establishment of variable Criminal Investigation Services of Department of Defense (DoD) under the Inspector General Act (IGA). The question of PCA violation has been raised repeatedly in nearly every Circuit of the appellate courts, and resulted in contradicting or inconsistent rulings and resulted "disastrous consequences for the Constitution". "For a court to uphold a claim to such extraordinary power [of using military for civilian law enforcement] would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth amendments; it would effectively undermine all the freedoms guaranteed by the Constitution." Judge Motz, Fourth Circuit. 3 4 The current case exemplifies this Constitutional
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