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Randy “Duke” Cunningham ex rel v. The House of Representatives HA-7-7-06


Majority Leader John Boehner (R-OH)


1. California Republican congressman Randy "Duke" Cunningham traded military contracts for $2.4 million in antiques, cash, and other booty. He is sentenced to jail, but his case exposed a world of bribery, booze, and broads that reaches into the Pentagon, the C.I.A., and Congress. In November, Cunningham's heroic image came crashing down, and his swagger evaporated when he pleaded guilty to accepting $2.4 million in bribes from military contractors in exchange for pressuring the Pentagon to buy their products and services. In March, Cunningham was sentenced to eight years and four months in prison—the harshest sentence ever received by an ex-congressman for corruption.  Congress would like to permit their former member to trade in his former life of military finance in return for the payment of insurance benefits to retired employees 11USC(11)§1114.  Wherefore there is an absence of a reasonable likelihood of rehabilitation in the criminal cases against Randy “Duke” Cunningham and his friends, Brent Wilkes and his protégé Mitchell Wade, et al, they must be dismissed to the House for counseling in regards to the terms of their probation under 11USC(11)§1112(b)(1) and 18USC(227)§3563 as a question of privilege under Rule IX of the 109th House Rules


2. In 1967, Cunningham joined the navy, where he became a fighter pilot. It was Vietnam, where he flew an F-4 Phantom, that changed his life and ambitions. In May 1972, he shot down five North Vietnamese MiGs to become the war's first "ace." Around this time he took the pilot call sign "Duke." It was a name he kept on his return to civilian life, in 1987. Faerstein believes it symbolizes both his strength and his undoing: "'Duke' became an outsized personification of Randall Cunningham," Faerstein wrote. "It is possible that his extraordinary deeds in the service planted a subconscious sense of entitlement." Eight years ago Cunningham was diagnosed with prostate cancer and two months later underwent a radical prostatectomy, but the cancer has recurred. He will live, doctors at Bethesda Naval Hospital estimate, perhaps seven years. A long jail term "would likely be a death sentence," Cunningham's lawyer informed the court. Currently, he is expected to serve seven years—although his sentence may be further reduced if the government is satisfied with his revelations. He is to be told shortly which federal prison will be his new, and perhaps final, home.  Tens of thousands of pages of congressional documents going as far back as 1997 have been demanded by the U.S. Attorney's Office in San Diego. The C.I.A., Pentagon, I.R.S., and F.B.I. are conducting investigations, and at least three congressional committees are cooperating in hopelessly tardy fashion. It is high time that they were dismissed.


3. The government believes Mr. Cunningham was bribed chiefly by two men, identified in court documents as "co-conspirator No. 1" and "co-conspirator No. 2," now known to be Brent Wilkes and his protégé Mitchell Wade. (Wade's lawyer Howard Shapiro refuses to comment on this story) The products they hawked—computer software to scan and convert military maps, drawings, and documents into digital format—lacked glamour, perhaps, but they made the two entrepreneurs and Cunningham wealthy, arrogant, and even reckless, courtesy of a compliant Pentagon. Wilkes's two dozen or so firms, in California and Virginia, raked in $100 million over the last decade, while Wade's Washington-based MZM Inc. has gotten $150 million since 2002. According to prosecutors, Wilkes and Wade generously remunerated Duke Cunningham for steering government business their way. Wilkes, prosecutors allege, gave Cunningham more than $600,000 in bribes, including two checks totaling $100,000 and $525,000 to pay off a mortgage. (Wilkes, through his attorney, denies these allegations.) In February, Wade pleaded guilty to bribing Cunningham with over $1 million—but he operated with more panache, indulging Cunningham's taste for outsize antiques. The trove he offered included Persian and Indian rugs, sleek Louis-Philippe and Restoration commodes, a $24,000 Victorian china hutch, leaded-glass cabinets, and silver candlesticks worth $5,600. "Duke liked his antiques big and he liked them expensive," explains a Maryland antiques dealer, who despaired of his taste.


4. Bribery statute 18USC(11)§201 being a public official or person selected to be a public official, directly or indirectly, corruptly 
demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in 
return for: (A) being influenced in the performance of any official act; (B) being influenced to commit or aid in committing, or to 
collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) being induced to 
do or omit to do any act in violation of the official duty of such official or person; directly or indirectly, corruptly gives, offers, or 
promises anything of value to any person, or offers or promises such person to give anything of value to any other person or entity, 
with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or 
other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or 
officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence such person to 
absent himself therefrom; directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything 
of value personally or for any other person or entity in return for testimony under oath or affirmation as a witness upon any such 
trial, hearing, or other proceeding, or in return or absenting himself there-from; shall be fined under this title or not more than three 
times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and 
may be disqualified from holding any office of honor, trust, or profit under the United States.
5. On the other the court can be construed to be Interfering with Commerce by threats and violence for obstructing, delaying, or 
affecting commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires 
so to do, or commits or threatens physical violence to any person or property shall be fined under this title or imprisoned not more 
than twenty years, or both under 18USC(95)§1951(b)(1)(2) The term "robbery" means the unlawful taking or obtaining of personal 
property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence.  The 
term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened 
force, violence, or fear, or under color of official right.  The term "commerce" means commerce within the District of Columbia, or 
any Territory or Possession of the United States. Neither of these charges should result in anything more than Probation under 
18USC(227)§3563 – whereas a defendant who has been found guilty of an offense is sentenced to a term of probation as an 
alternative to imprisonment.  Probation is immediately effective unless the offense is a Class A or Class B felony – meaning that 
a crime is valued at more than 50 years in prison or considered a physical danger to the community.   This scandal has been 
mismanaged by the judiciary attempting to discipline a Congressman.  Although it is true Mr. Cunningham and associates 
engaged in unnecessary and fraudulent war contracts it is equally true that the judiciary engaged in an unnecessary and fraudulent 
war contract to prosecute people rather than civilly prosecute the termination of war contracts under 41USC(2)§101.
6. In Gov. Ernie Fletcher v. Attorney General Greg Stumbo (Kentucky) HA-15-5-06 whereby both candidates have voluntarily 
resigned from the race for Governor, although all they need to do settle the unemployment claims.  We are now concerned that State 
office is too dangerous for human habitation and pray to the court for immunity from prosecution for civil and political cases to be 
unimpeded by arbitrary criminal investigations.  Society charges prosecutors with the duty of obtaining results that are just – not 
merely convictions – a judge is typically sufficient to right this wrong . Young v. United States, 481 U.S. 787 (1987). Consequently, 
it is black letter law that an impartial prosecutor is a constitutional necessity. When a prosecutor’s personal interests or biases 
threaten society’s interest in impartial proceedings, courts squarely hold that disqualification of that prosecutor is required. 
An important consideration emphasized by many courts in these cases is the dual nature of the prosecutor’s duty. The prosecutor’s 
mission is not so much to secure a conviction as it is to achieve a just result. The defendant is entitled to a full measure of fairness, and 
it is as much the prosecutor’s duty to see that the accused is not deprived of any statutory or constitutional rights as it is to prosecute. 
Thus, disqualification may be necessary if the trial court determines that the prosecutor has a conflict-of-interest which might prejudice 
him or her against the accused. Courts have concluded that disqualification from participation in criminal prosecutions was required or 
proper on the basis of . . . political confrontations.  Recognizing that certain circumstances inherently jeopardize a prosecutor’s ability 
to remain impartial, those situations “when a prosecutor must disqualify himself/herself from prosecuting a case on the basis of a 
conflict-of-interest.” are “when the prosecutor . . . has an interest that could be substantially affected.” cautioning against the risk of a 
prosecutor “‘over prosecuting’ a criminal action insofar as he has a vested interest in the outcome”. 

7. In Powell v. Alabama 287 U.S. 45 (1932) Chief Justice Anderson thought the defendants had not been accorded a fair trial and strongly dissented. the judgments are assailed upon the grounds that the defendants, and each of them, were denied due process of law and the equal protection of the laws, in contravention of the Fourteenth Amendment, specifically as follows: (1) They were not given a fair, impartial, and deliberate trial; (2) they were denied the right of counsel, with the accustomed incidents of consultation and opportunity of preparation for trial; and (3) they were tried before juries from which qualified members of their own race were systematically excluded.  In Norris v. Alabama 294 U.S. 587 (1935) judgments of conviction were reversed upon the ground that the defendants had been denied due process of law in that the trial court had failed in the light of the circumstances disclosed, and of the inability of the defendants at that time to obtain counsel, to make an effective appointment of counsel to aid them in preparing and presenting their defense.  In Brown v. Mississippi 297 U.S. 278 (1936) the Court rejected, on Equal Protection grounds the convictions of people whose confessions were coerced.  In Missouri ex rel. Gaines v. Canada 305 U.S. 337 (1938) Chief Justice Hughes declared, “An individual is entitled to the equal protection or the laws”.  

8. In Chambers v. Florida 309 U.S. 227 (1940) it was stated, in order to preserve 'the blessings of liberty', our country wrote into its basic law the requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed.  In Gideon v. Wainwright 372 U.S. 335 (1963) the right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner's trial and conviction without the assistance of counsel violated the Fourteenth Amendment.  The exclusionary rule of Mapp v. Ohio 367 U.S. 643 (1961) determined that all evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible.  In Miranda v. Arizona 384 U.S. 436 (1966) it was found that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers unless they can demonstrate that the use of procedural safeguards effective to preserve the Fifth Amendment’s privilege against self incrimination.  The privilege against self incrimination, which has a long and expansive historical development, is the essential mainstay of our adversarial system and guarantees to the individual the, “right to remain silent unless he chooses to speak in the unfettered exercise of his free will”, during a period of custodial interrogation as well as in the courts or during the course of official investigations.  

9. The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances. Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1. The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3.  The following are the powers of the Executive: veto power over all bills; appointment of judges and other officials; makes treaties; ensures all laws are carried out; commander in chief of the military; pardon power. The Legislature has the power to pass all federal laws; establishes all lower federal courts; can override a Presidential veto; can impeach the President. The Judiciary has the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional.  

10. Aristotle favored a mixed government composed of monarchy, aristocracy, and democracy, seeing none as ideal, but a mix of the three useful by combining the best aspects of each. In his 1656 Oceana, James Harrington brought these ideas up-to-date and proposed systems based on the separation of power. John Locke, in his 1690 Civil Government, second treatise, separated the powers into an executive and a legislature. Montesquieu's 1748 Spirit of the Laws expanded on Locke, adding a judiciary. The framers of the Constitution took all of these ideas and converted the theories into practical applications.  The phrase "checks and balances" was coined by Montesquieu for a multi-branch government or a federal system, "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases.  In France, judges were regarded as sources themselves of tyranny and not liberty as in England, establishing the 'non-interference' model of the separation of powers.  James Madison wrote in Federalist 51, regarded the ability of each branch to defend itself from actions by the others, that "it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." In Murray's Lessee v. Hoboken Land & Improvement Co. (1856), the Supreme Court held that a legislative court may not decide "a suit at the common law, or in equity, or admiralty," as such a suit is inherently judicial. Legislative courts may only adjudicate "public rights" questions (cases between the government and an individual involving political determinations). 

11. The House of Representatives has the power to impeach both executive officials and judges; the Senate tries all impeachments.  This authority was made clear in William J. Jefferson, that precipitated the resignation the Attorney General, Deputy Attorney General and Director of the FBI and the quiet dismissal of United States of America v. Lewis Libby (alias “Scooter Libbry”) CR. NO 05-394 (RBW).  The Judiciary must clearly learn their role as a humble petitioner to Congress much better.  The Constitution of Hospitals & Asylums Non Governmental Ethics (CHANGE) anticipated such disputes regarding Political Parties and provides in Art. 5(E)(3) (3) “the judiciary must be unbiased in political and electoral issues and although litigation is obviously required the trials of Political Parties should be held by the Boards of Elections (or Congress in this Case)”.   For questions regarding Congressional privilege first affecting the rights of the House collectively, its safety, dignity, and the integrity of its proceedings; and second, those affecting the rights, reputation, and conduct of Members, to be heard in the proper venue the Majority Leader is sought to offer this resolution for debate regarding the fundamental freedom of a former Congressman and his associates under Rule IX of the 109th House Rules.  A decision regarding whether Congress should pay retirement insurance or find for private property of aforementioned individuals so that retirement insurance could be fairly terminated under the Lobbying Accountability and Transparency Act (H.R. 4975) of 2006.  Whereas the right to petition Congress is inalienable Congress will need to note in the disciplinary record that Randy “Duke” Cunningham and his friends, Brent Wilkes and his protégé Mitchell Wade were not skillful lawyers and their convictions have exhausted their military consulting license, but are entitled to life, liberty and a living wage. 

Tony Sanders