24- Bill of Particulars- Memorandum of Law and Brief in Support Of

IN THE MUNICIPAL COURT OF ST. LOUIS COUNTYTWENTY-FIRST JUDICIAL CIRCUIT

STATE OF MISSOURI

ST. LOUIS COUNTY, ))

Plaintiff, )) Case I-09063201

vs. ))

TERRY LEE HINDS )) West Division

Defendant. ))

) No Trial Date Set

MEMORANDUM OF LAW AND BRIEF IN SUPPORT OFDEFENDANT'S MOTION AND SECOND REQUEST FOR A BILL OF PARTICULARS

COMES NOW, TERRY LEE HINDS, (hereinafter the “[Accused]”) proceeding as a pro

se Defendant in the above cause files this motion and respectfully moves this Court to issue an

Order requiring the St. Louis County Counselor’s Office and its prosecuting attorney, Molly

Chestnut (hereinafter the “[Prosecution]”) to produce a meaningful Bill of Particulars to the

defense and this Court, as set forth herein. This motion is made pursuant to THE

CONSTITUTION OF THE UNITED STATES, THE CONSTITUTION OF THE STATE OF

MISSOURI AND U.S. SUPREME COURT DOCTRINES, relevant case law, the purview of the

Missouri Rules of Criminal Procedure, as well as, the good cause shown to the Court through his

attached Brief and Memorandum of Law in support of the [Accused]’s Motion states as follows:

STATEMENT OF THE ALLEGATIONS

Presumably, these generalized allegations appear in a very large host of “Violation Notice and

Information” relating to several thousand similar cases; however these boilerplate allegations do

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not discuss the specifics of the particular case in which they are submitted. The allegations are:

“The below-signed County Counselor and Municipal Court Prosecutor for St. Louis County, Missouri, acting upon the person’s belief, knowledge, or information and having probable cause to believe the ordinance violationdescribed below was committed by the above-named Defendant, charges:”

-and-“The above-named defendant failed to have in effect a waste collection serviceagreement for the following location in violation of St. Louis County Revised Ordinance Section 607.140 and punishable under Section 607.960.”

In this criminal case, the [Accused] asserts that the [Prosecution] has failed to set forth specific

facts of wrongdoing with the Plaintiff’s Information providing no individual or particular facts as

revealed above; therefore insufficient to give the [Accused] proper notice of any specific acts,

inactions or even the nature of the charge against which he must defend. The only significant or

fastidious criminal act of wrongdoing as set forth by the [Prosecution] in this case is the identity

and address of the [Accused]. It is constitutionally offensive to believe that the only particulars

in this criminal case are limited to the [Accused]’s name and address with an alleged date of a

violation presenting no time of occurrence. This ascribe information is featured or arranged in

little boxes drawn for it and illustrated on Plaintiff’s Violation Notice and Information. It should

be self evident to a common man or the [Prosecution] that “real life doesn't fit into little boxes

that were drawn for it.” A person’s name and address alone does not constitute a crime. The

Supreme Court has controlling held for over 100 years of our Nation history: “There are no

constructive offenses, and before one can be punished, it must be shown that his case is plainly

within the statute.” Fasulo v. United States, 272 U.S. 620, 629 (1926). See also United States v.

Lacher, 134 U. S. 624 (1890). This is a case which involves a fundamental principle of a lawful

society (“Equal Justice Under Law”) which has been needlessly changed in a way that

circumvents the entire legitimacy concerning the criminal justice system process.

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INTRODUCTION

The [Accused] is not seeking any evidence and is not making a request for evidentiary

matters concerning his motion and this Second Request for a Bill of Particulars. The [Accused]

in holding to the true principles for a request for a Bill of Particulars, as well as his constitutional

concerns with the law enforcement practices in this case; the [Accused] seeks the duty of court as

an agency of justice and a custodian of liberty which forbids that a defendant should be

convicted upon a lack of particulars or circumstances as revealed herein. The [Prosecution] has

failed to uphold both the legal principles in the freedom to contract and in the due process

doctrines inherent to our constitutional design. The present case, then, concerns a relationship

lying within the right to contract, and the [Accused]’s free exercise of First Amendment rights

established by several fundamental constitutional guarantees. Rights have penumbras, formed by

emanations from those guarantees that help give them life and substance, with the [Accused]

who now seeks particular relief that he is entitled to… as a matter of law and fact. The Plaintiff

or [Prosecution] have rendered their decision to prosecute the [Accused] as a malicious teaching

and will, in time; prove to be quite as pernicious as the decision made by the government and its

tribunal system in the Dred Scott Case. “The history of liberty has largely been the history of

observance of procedural safeguards. And the effective administration of criminal justice hardly

requires disregard of fair procedures imposed by law.” See McNabb v. United States, 318 U.S.

332, 347 (1943) (per Holmes, J.)

The [Accused] is charged by Information, apparently establishing a single alleged

colorable offense of the St. Louis County Waste Management Code, § 607.140, [Waste to be

Collected] which is alleged to be punishable and enforceable under § 607.960 [Penalties and

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Enforcement]. Through his Motion the [Accused] makes the following limited, but essential,

requests for particularized information:

a.) Please describe with particularity each and every fact that support a finding of probable

cause to believe a crime was committed inside the home of the [Accused] or within the

property line of his address and that the [Accused] committed said crime;

b.) Please describe with particularity the details regarding “TRASH DISTRICT 4” pursuant

to Plaintiff’s Information vs. ‘Designation of Collection Areas’ pursuant to § 607.1300;

c.) Please describe with particularity the details regarding “DESIGNATED HAULER” as

well as, the identity of “VEOLA” pursuant to Plaintiff’s Information;

d.) Please describe with particularity the details regarding the [Accused]’s account(s) and his

account status with “Veolia” on June 23, 2009 as well as before June 23, 2009 as well as

after June 23, 2009;

e.) Please describe with particularity the details as to the [Accused] being the property owner

pursuant to § 607.140;

f.) Please describe with particularity the details as to the [Accused] being “the person

generating the waste” pursuant to § 607.140;

g.) Please describe with particularity the details regarding “an agreement” that was to be “in

effect” pursuant to § 607.140;

h.) Please describe with particularity the details with reference to the alleged failure of the

[Accused] to have “an agreement” on June 23, 2009;

i.) Please describe with particularity the details with reference to the alleged failure of the

[Accused] to have “an agreement” after June 23, 2009;

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j.) Please describe with particularity the details with reference to the alleged failure of the

[Accused] to have “an agreement” before June 23, 2009

k.) Please describe with particularity the details with reference to “the person generating the

waste” on June 23, 2009 at the [Accused]’s address;

l.) Please describe with particularity the details with reference to “the person generating the

waste” before June 23, 2009 at the [Accused]’s address;

m.) Please describe with particularity the details with reference to a “waste collection service

agreement” for the [Accused]’s address that was to be in effect;

n.) Please describe with particularity the details with reference to the kind or type of waste

found at the [Accused]’s address that was allegedly generated on June 23, 2009;

o.) Please describe with particularity the details with reference to the kind or type of waste

found at the [Accused]’s address that was allegedly generated before June 23, 2009;

p.) Please describe with particularity the details with reference to the kind or type of waste

found at the [Accused]’s address that was allegedly generated after June 23, 2009;

q.) Please describe with particularity the details with reference to the exact or the proximate

position or the various locations of the waste to be collected that was allegedly generated

by the [Accused],

r.) Please describe with particularity the details with reference to the WASTE TO BE

COLLECTED at 438 Leicester Square Drive Ballwin, Missouri 63021 on June 23, 2009

as well as before June 23, 2009;

s.) Please describe with particularity the details with reference to or concerning why June 23,

2008 is a violation date or the date determined for said charge;

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t.) Please describe with particularity the details with reference to that each day a violation

continues after service of written notice to abate such violation shall constitute a separate

offense in this case;

u.) Please describe with particularity the details with reference to that no notice is required to

prosecute and convict a person of any violation of Waste Management Code as it pertains

to this case;

v.) Please describe with particularity the details with reference to witness or witnesses

statement or statements, as well as, to any statements of Veolia’s employees about a

violation at the [Accused]’s address ;

w.) Please describe with particularity the details with reference to what extent the [Accused]

had allegedly failed to have a waste collection service agreement;

x.) Please describe with particularity the details with reference to waste collection service

being reasonably available for the [Accused]’s address on June 23, 2009 as well as

before June 23, 2009 as well as after June 23, 2009;

y.) Please describe with particularity the identity of the “person” Molly Chestnut was

referring to in Plaintiff’s Information when stating “..acting upon the person’s belief,

knowledge or information…”;

z.) Please describe with particularity the details with reference to the location of the alleged

crime or offense occurring outside the [Accused]’s residence or inside the [Accused]’s

home and whether a search warrant was obtained or required by law.

The particulars requested are narrow and necessary and without this information, the

[Accused] is not sufficiently advised of the conduct the Government alleges violated § 607.140

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[Waste to be Collected] or § 607.960 (i.e.“..Each day a violation continues… shall constitute a

separate offense…”) and cannot adequately prepare his defense and avoid prejudicial surprise

during trial. The particulars requested by the [Accused] is factual information not recited in the

Information. None of the items requested are evidentiary material, rather, the [Accused] seeks,

through particulars, to determine what his participation was in the acts alleged in the Information

was suspected to have occurred. A reading of the [Accused] Second Request for a Bill of

Particulars shows that each question requested is only for factual information not provided in the

Plaintiff’s Information. The grounds for this motion and a second request are set forth below.

I. CONSTITUTIONAL CONSIDERATIONS

The Plaintiff’s Information is vague, indefinite, uncertain, and insufficient in its terms and

conclusions. It is not possible to reasonably know the nature and cause of the charge asserted

from the matters stated in the Plaintiff’s Information. Thus, it is not possible to prepare a defense

to the charge in the Plaintiff’s Information. To inform the [Accused] of the accusations and what

crime(s) have been charged, and so that a defendant’s rights guaranteed by both the Missouri and

United States Constitutions may be fully protected; the [Prosecution] should be required to

present to the [Accused] a Bill of Particulars. Additionally, obtaining a Bill of Particulars is a

critical piece in effectively performing a thorough and independent investigation on his own

behalf, thus maintaining the concepts of fairness or such conditions as justice requires. A detailed

Bill of Particulars is all the more critical here because this is a case of first impression. The

[Accused] is entitled to notice of the crime charged by way of a detailed and meaningful Bill of

Particulars. This protects the [Accused]’s State and Federal constitutionally guaranteed rights to

effective assistance of counsel, due process of law, equal protection of the law, and confrontation

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of the State’s evidence. This second request for particulars will lock the government in place and

not force the [Accused] to defend against moving targets, e.g., to date Plaintiff has set forth five

assorted titles of a violation of § 607.140.

Issues Presented:

Is a Bill of Particulars necessary in the instant prosecution in order for the [Accused] to properly

prepare his defense and avoid surprise at trial and to adequately secure the rights guaranteed to

him by the United States Constitution, the Missouri State Constitution and applicable case law?

In particular, the Bill of Particulars requested in this case is necessary to assure the [Accused]

the following constitutional rights:

1. The due process requirements of the Fifth and Fourteenth Amendment to the United

States Constitution or Article 1, § 10 of the Missouri State Constitution;

2. The Sixth Amendment rights of the United States Constitution insuring effective

assistance of counsel, notice and the opportunity to confront any accuser, with the right to

cross-examine all witnesses and to have compulsory process for obtaining witnesses in

his favor, or protections afforded in Article 1, §19 of the Missouri State Constitution and;

3. To secure his Fifth Amendment rights of the United States Constitution or Article 1,

Section 19 of the Missouri Constitution against self incrimination and double jeopardy.

The Accused’s Answer: YES

Whether, pursuant to the [Accused]’s other constitutional rights or in accordance with the

requirements of the Fifth and Fourteenth Amendment or his Sixth Amendment rights, this Court

should grant the [Accused]’s Second Request for a Bill of Particulars as set forth in his motion

having special regards to the insufficient notice of a violation constituting the offense, the

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deficient in particulars with the nature of the criminal charge or to the extent the [Accused] has

identified defects in the Plaintiff’s Violation Notice and Information. A motion for a Bill of

Particulars should be filed, because the government [is] under no obligation to volunteer such

information unless requested; accordingly to properly inform the [Accused] of the charge made

against him with sufficient precision to enable him to prepare a proper defense, avoid surprise,

and enable him to plead his acquittal or conviction in bar of any further prosecution for the same

offense.

Particularly, for reasons or inadequacies stated herein, because this is a case where an

alleged violation first takes on the appearance of a ‘status crime’ and/or a ‘status offense’

according to the complainant, Veolia. This status offense is confirmed by Plaintiff’s letter, dated

December 5, 2009 stating in part: “St. Louis County has been notified that your account with

Veolia is in delinquent status”. However, a status crime becomes self apparent as confirmed in

Plaintiff’s letter, (Notice of Violation) dated February 17, 2009 stating in part: “Veolia has

informed the County Health Department that, due to non-payment, it has terminated waste

collection service at this residence.” This arranged status or status crime facilitated by Veolia;

transforms a particular person or positions classes of persons to undergo criminal prosecution

for a ‘stigma crime’. This captivity condition of legal inferiority as established by § 607.960

[Penalties and Enforcement] is hostile to the Missouri Constitution, Bill of Rights, Article I,

Section 11: [Imprisonment for debt], declares: “That no person shall be imprisoned for debt,

except for nonpayment of fines and penalties imposed by law.” As a practical matter, the

intervening constitutional right would make it unlawful for any court to imprison the [Accused],

due to non-payment of a bill or an alleged debt owed if a conviction should be obtained.

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Plaintiff’s endorsement of a status crime, status offense or their enforcement of a stigma crime is

completed by the underpinnings of a waste collection program, serving as the latest socially

unacceptable offense through the legal undertakings of a government benefit or its Waste

Management Code. Plaintiff’s iniquities have effectively constructed a road to serfdom, if not, a

perfect path to hell paved with good intentions. This is accomplished in part by the County’s

Counselors Office who seeks a form of manufactured consent using the customs of the Courts

or a self styled home rule policy for the presumption of guilt of the [Accused]’s ‘thought crime’

pertaining to Waste Management Code, program, or Veolia’s and Plaintiff’s actions. These

unjust actions are well documented in 32 letters written by the [Accused] concerning

constitutional considerations or his legal or lawful rights, of which the Plaintiff or the

[Prosecution] have refused to produce pursuant to the [Accused]’s discovery requests.

Auspiciously, this Second Request for a Bill of Particulars will lock the government in place and

not force the [Accused] to defend against other various moving targets, e.g., (1) The

[Prosecution] has contended a crime of § 607.140, involves an account, or in the alternative in

some cases, the status of an account, and (2) involves someone’s “thoughts” TO HAVE versus TO

ASSURE an agreement is in effect, with (3) the government’s assumption that by not

participating in a social program; each day becomes a continuing crime, pursuant to § 607.960

with no notice required “to prosecute and convict a person of any violation of this Chapter”.

This is accomplished, in part, when government actions endorse a ‘status crime’ against a

particular person or classes of persons, or engages the services of selective enforcement for a

stigma crime and seek prosecution or punishment for a thought crime; while operating under the

color of the law. Plaintiff’s policy, procedure, practice or ordinances are the moving force for the

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constitutional violations involved in this case with officials deliberately indifferen[t] to the

[Accused]’s constitutional deprivations. The [Accused] additional constitutional considerations

for a Second Request for a Bill of Particulars are set forth herein.

Summary of Argument:

The [Accused] is entitled to a meaningful Bill of Particulars which is to be in compliance with

Missouri R. Crim. P. 21.02 [Misdemeanors - Information - Prosecuting Attorney] which states:

“The prosecuting attorney may file an information charging the commission of a misdemeanor based upon the prosecutor's information and belief that the offense was committed. The information shall be supported by a statement ofprobable cause as prescribed by Rule 21.04.”

The prosecuting attorney, Molly Chestnut, did not file a Violation Notice and Information in this

case based upon her own information and belief that the offense was committed, rather was

“..acting upon the person’s belief, knowledge or information…” who has not been identified at

this time. Since Missouri Rules of Criminal Procedure are not being complied with, the

[Accused] relies upon United States Supreme Court doctrines and its practices as set forth herein,

to assure the [Accused] of his constitutional rights. The Sixth Amendment requires that

a citizen ‘be informed of the nature and cause of the accusation’. It is a well-

settled principle of law that a person needs to know what law or duty was

violated. United States v. Cruikshank, 92 U.S. 542 (1876); Sheppard v. Rees,

909 F.2d 1234 (9th Cir. 1989). This type of compliance plays an important role in

safeguarding and effectuating the [Accused]’s Federal and Missouri Constitutional rights to

effective assistance of counsel, due process of law, equal protection of the law, and confrontation

of the State’s evidence. The [Accused] is apparently charged with a specious offense of the

Waste Management Code, under § 607.140 [Waste to be Collected], that is alleged to be

enforceable and punishable under § 607.960 [Penalties and Enforcement].

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Section 607.960 states, in relevant parts as it relates to the requested Bill of Particulars:

“..Each day a violation continues after service of written notice to abate such violation shall constitute a separate offense; however, no notice is required to prosecute and convict a person of any violation of this Chapter…”

The [Accused] states that this language (‘Each day’ ‘constitute a separate offense’ or ‘no notice

is required to prosecute and convict a person’) poses assured “surprise and uncertainty” which

unnecessarily and indefensibly burden[s] his exercise of his right to a jury trial, due process or

would even allow him to prepare a proper defense or avoid surprise. To make matters worse, the

charge in violation of §§ 607.140 and 607.960 against the [Accused] has never before been

leveled by the government in a Court setting having such arguments as presented in this case.

The Plaintiff’s designated Trash District Plan for District #4 went into effect on September 29,

2008 with its enforcement of § 607.140 beginning on December 5, 2008 with the [Accused].

However, Plaintiff’s Information set forth the date of the violation as “6/23/09”. In this unique

context, the government should at the very least be compelled to provide the requested

Particulars in this case of first impression and conflicting facts. Indeed, it is impossible to tell

from the charge sheet exactly in what way the [Accused]’s actions were criminal. The possible

scenarios are vast because the charge is so vague and its alleged offense is complicated as

described herein. This fact is made more evident pursuant to § 607.960 subsequent prosecution

power constructing that “..Each day a violation continues after service of written notice to

abate such violation shall constitute a separate offense…”A detailed Bill of Particulars is all

the more critical here because each day a violation continues after service of written notice to

abate such violation shall constitute a separate offense . From a practical point of view, there are

serious problems with this legal approach. Considering § 607.960 scope and severe penalties, a

(12)

possible defendant or the [Accused] should not have to guess which day or days he allegedly was

in violation of § 607.960. Fundamental principles of fairness dictate that the [Accused] ought to

be advised of the day or dates of potential or existing violations, so that he will have a

meaningful opportunity to prepare and present his defense. The [Accused] is entitled to a specific

notice of the crime(s) charged by way of a detailed and meaningful Bill of Particulars.

Subsequently, this additional single arbitrary fact that “..no notice is required to prosecute and

convict a person of any violation of this Chapter…” raises relevant constitutional due process

problems, as well as, the [Accused] being tried twice or perhaps numerous times in favor of the

legalism that no notice is required to prosecute and convict a person for the same crime on the

same set of facts. A Bill of Particulars in this case would allow or permit the [Accused] to

successfully plead double jeopardy, if he should be prosecuted later for the same offense

pursuant to § 607.960. These precarious positions and the potential future legal arguments of

double jeopardy, properly advances and/or is germane to the [Accused]’s motion, since §

607.960 further states, in relevant parts for a Bill of Particulars:

“..In addition to the penalties hereinabove authorized and established, the County Counselor shall take such other actions at law or in equity as may be required to halt, terminate, remove or otherwise eliminate any violations of this Chapter…”

The [Accused]’s alleged offense and potential future offenses revolve around an alleged

violation of § 607.140 [Waste to be Collected] and § 607.960 [Penalties and Enforcement] of the

Plaintiff’s Waste Management Code. However, the visible “triggering” ordinance for § 607.140

are not within § 607.960 or even in § 607.140, rather within section 607.950 [Authorization for

Director…Prosecution of Violations]. Plaintiff’s Information makes no mention to § 607.950 or

most importantly, or thus far of Chapter 607, the “Waste Management Code”. This leaves the

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[Accused] no legal guidelines to understand what overt act was allegedly committed in

furtherance of said offense § [607.140]. Conversely, § 607.140 [Waste to be Collected] own

legal language as written, is in direct conflict with the Plaintiff’s Information to the extent

described hereinafter (i.e., “service agreement” per County Counselor Office versus “an

agreement” per § [607.140]). The [Accused] is of the proper legal opinion that § 607.140

[WASTE TO BE COLLECTED] was written for a Waste Collection Service (i.e., Trash Hauler-

who collect waste) with the only duty, if one should exist involving a property owner and the

person generating waste is: “..the responsibility of the property owner and the person generating

the waste to assure that an agreement for the collection of waste is in effect.” The very language

of § 607.140 confirms the [Accused] cannot meet this essential element of a crime as the

gravamen of this current offense is centered on “TO HAVE” “an agreement.” The Plaintiff’s

prosecutors, Molly Chestnut and Brian Malone, have maintained in the course of this criminal

case the unsettled violation is the “FAILURE TO HAVE A WASTE COLLECTION

SERVICE AGREEMENT” being of an unacceptable and deceptive practice. A deceptive

practice because “FAILURE” is nowhere written in §§ [607.140] or [607.960] with [the law]

declaring” “the property owner and the person generating the waste to assure that an agreement

for the collection of waste is in effect”. An unacceptable practice is the term “waste collection

service agreement” because it is nowhere to be found in the County’s ordinance § [607.140] or

within the entire breath of the Waste Management Code- [Chapter 607]. More precisely, Plaintiff

or the [Prosecution] rendering a strict ludicrous adherence to a falsehearted fiction involving a

“waste collection service agreement” without particulars of such a service agreement; would

make any person rely exclusively on a prosecutors’ presumed knowledge of [the law] that would

(14)

construe such an agreement or, in this case, as alleged a ‘waste collection service agreement’.

The [Accused] has made a formal “Request for Disclosure” pursuant to Missouri Rule of

Criminal Procedure 25.03, requesting the Plaintiff and the [Prosecution] to: “..produce all

material and information within its possession or control…” which was filed with this Court on

August 21, 2009. However, to this date (approximately 13 months later) the Plaintiff has

produced little cooperation and no additional information apparently within their possession or

control. The [Accused]’s “Request for Disclosure” is information sought being reasonably

calculated to lead to admissible evidence. As a threshold matter, and with an eye towards –

among other factors; Plaintiff’s Information and their “total release” of fifteen (15) documents,

of which produced only one (1) new document, received by [Accused]’s legal Counsel on

December 28, 2009; fails to represent a compulsory process. This is the case here, when

Plaintiff’s acts unilaterally in a manner which interferes with the [Accused]'s ability to discover,

to prepare, or to offer exculpatory or relevant evidence prior to trial, by or through

documentation held in Plaintiff’s possession or its agent and complainant, Veolia Environmental

Services. The [Accused] contends Veolia ES motivation for cooperating with Plaintiff and this

criminal charge § [607.140] is monetary. These significant facts make a Bill of Particulars

request more germane, necessary and applicable, as such being a condition that justice requires

it.

The matters requested herein are absolutely essential to properly prepare the [Accused] a

defense and are well within the scope of Missouri R. Crim. P. [23.04], case law, Supreme Court

doctrines and constitutional law. There is no request to seek information as to how the

[Prosecution] will make its case and therefore this request is not for evidence, but only for

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[Prosecution] will make its case and therefore this request is not for evidence, but only for

information to specifically identify the actual facts, persons, allegations and testimony relied

upon by the [Prosecution] ‘to make their case’.

II. GENERAL BACKGROUND AND LEGAL FRAMEWORK

A.) The Bill of Particulars Previously Requested.

On January 21, 2010 by and through the [Accused] previous legal counsel, Michael

Merritt presented to the Court the [Accused] First Request for a Bill of Particulars. The

Plaintiff filed their response/opposition on February 25, 2010 with the Court hearing the

[Accused]’s motion and arguments on April 15, 2010. The Court denied the [Accused] First

Request for a Bill of Particulars based on RULE 37.35 of the Missouri R. Crim. P. -

[INFORMATION--FORM OF—CONTENTS]. In the Court’s opinion the Plaintiff’s

Information was sufficient under Rule 37.35. Nevertheless, stripping the Plaintiff’s response

of rhetoric, Plaintiff raises only two routine and fairly de minimus disputes for the Court’s

determination: (1) Defendant’s Motion is Untimely; and (2) The Information Contains All

Essential Allegations. Plaintiff’s response or argument to the [Accused]’s motion and his

First Request for a Bill of Particulars was clearly moot.

B.) Timeliness.

This motion and Second Request for a Bill of Particulars is being filed within the timeline

established by Missouri Rules of Criminal Procedures. The Plaintiff had made the spurious

argument that the [Accused]’s First Request for a Bill of Particulars was untimely. The

determination whether to grant a bill of particulars is left to the sound discretion of the trial

court. See Wong Tai v. United States, 273 U.S. 77, 82 (1927). See also United States v.

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Mitchell, 744 F.2d 701, 705 (9th Cir. 1984), citing Will v. United States, 389 U.S. 90, 98-99

(1967). Furthermore, pursuant to Missouri R. Crim. P. 23.04, and for the other reasons set

forth herein, this Court should grant the [Accused]’s motion and Second Request for a Bill of

Particulars because the time provided for the filing of pretrial motions by this rule or within

such other time as the judge may allow, a Defendant may request or the court upon its own

motion may order that the [Prosecution] file a statement of such particulars as may be

necessary to give both the [Accused] and the Court reasonable notice of the crime charged,

and in this case the requested particulars the [Accused] seeks.

It has been said “timing is everything” however the good cause as stated in this

memorandum and brief and in particular within sections G.) Clarifications and H.)

Discussion which holds to the timeless fact that the [Accused] is entitled by a… moment in

time, where the Founders of a Nation established a Bill of Rights, and a defendant was, at the

very least “..to have compulsory process for obtaining witnesses in his favor…”. A Bill of

Particulars is a part of that compulsory process. The Court has the power to advance this

process forward in the name of a good cause- (Justice) simply because; a compulsory process

is not the discovery process.

The Plaintiff in their opposition to the [Accused] First Request for a Bill of Particulars

neglects to address a threshold question: Where is the benchmark on timeliness, set

expirations or a deadline for a Bill of Particulars? A compulsory process in criminal cases

makes “timing everything” or the lack of having a compulsory process; a collected waste of

time. This fact remains true in most criminal cases; because the accused person is subject to

time in jail, or is not given the time necessary to understand the criminal charge [or] enough

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time to prepare a defense, as well as, the time to go to law school. This single fact alone,

involving the [Accused], is a proper showing of a good cause to defeat any arguments for

denying a Second Request for a Bill of Particulars for being untimely.

Missouri R. Crim. P. 23.04 provides that a motion for a Bill of Particulars may be made

“at such later time as the court may permit” or “the court may direct or permit the

filing of a bill of particulars” as may be necessary to give both the Defendant and the Court

reasonable notice of the crime charged. [Emphasis added]. The Court, therefore, has the

discretion to hear and consider the [Accused] presented motion and his Second Request for a

Bill of Particulars.

C.) All Essential Allegations versus Essential Facts

It is important to note that Plaintiff’s response and opposition to the [Accused] First

Request for a Bill of Particulars, the Prosecutor Malone declared on page 2 in section II:

“The Information Contains All Essential Allegations.” The Plaintiff’s novel response and

hollow argument admits to the essential fact, the legal existence of more than “one

allegation” as the learned County Counselor Brian Malone, used the word “Allegations” and

certainly not the legal phrase ‘The Information Contains All Essential Facts.’ Even to a

layman allegations are not facts just assertions, especially relating to wrongdoing or

misconduct on somebody’s part that has yet to be proven or supported by evidence.

The legal framework of the Plaintiff Information is misleading and its allegations are

vague, indefinite, uncertain, and insufficient in its terms and conclusions for the reasons set

forth herein. First and foremost there is no such legal designation within Waste Management

Code [Chapter 607] as to the existence of “TRASH DISTRICT 4”. Inconsequently, Chapter

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607, § 607.1300 [Designation of Collection Areas] allows the County Executive to “establish

areas within the unincorporated County for the collection and transfer of waste and recovered

materials.” Furthermore, there is no legal definition for “TRASH” or “DISTRICT” or even

the term “DESIGNATED HAULER” in Chapter 607. Plaintiff’s Information is so vague and

uncertain, the word “VEOLIA” being listed as the “DESIGNATED HAULER” fails to set

forth a proper legal description or its legal identity. The [Accused] is legally entitled to a

proper statement of probable cause pursuant to Missouri Rules of Criminal Procedure 21.04 .

[Misdemeanors - Statement of Probable Cause – Contents]. The Plaintiff or the [Prosecution]

has made no such statement in their Information, only declaring “..and having probable

cause to believe …” consequently, further supporting the [Accused]’s grievances for

“Constitutional Considerations” for due process or to be informed of the nature and

cause of the accusation.

D.) Statement of Facts

1. The subject Information was sworn to on July 20, 2009 by Molly Chestnut. A single

count listed, encompassing two (2) short or insufficient paragraphs purporting to establish

a single colorable offense of the St. Louis County ordinance, involving § 607.140, [Waste

to be Collected] with the assumption, punishable and enforceable under § 607.960

[Penalties and Enforcement]. See Exhibit # I-1, (Information) attached hereto and

incorporated herein by reference.

2. Enclosed with the Information were five separate pages of official looking papers which

are not referenced to in any manner or form, concerning Plaintiff’s Information.

However, these official looking papers were not incorporated therein by reference,

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creating additional guesswork for the [Accused]’s defense.

3. The Plaintiff’s Violation Notice and Information’s four enclosed documents, having a self

styled cookie cutter format along with a court summons which contains only broad

allegations apparently triggered by someone’s personal discretion or injudiciousness.

4. The court summons, dated August 6, 2009 issued in this case to the [Accused] fails to

state the exact section of the alleged violation charged stating: “WASTE

MANAGEMENT CODE- FAILURE TO HAVE WASTE COLLECTION SERVICE

AGREEMENT”. See Exhibit # S-1, (Summons issued to the Accused by mail) attached

hereto and incorporated herein by reference.

5. This court summons, (Exhibit # S-1) has a totally bizarre statement listed on a criminal

citation in large bold capital print: “IF YOU HAVE QUESTIONS ABOUT THE

WASTE MANAGEMENT PROGRAM, CONTACT 615-HAUL OR THE

ASSIGNED HAULER LISTED ON THE ENCLOSED VIOLATION AND

INFORMATION FORM”. Apparently the [Accused] is to seek some type of Court

order relief via the instructions by an assigned hauler’s legal position or perhaps Veolia

assumed authority to serve as a de facto judge or jury in this criminal case. De facto

meaning in this criminal case: “in practice but not necessarily ordained by law”.

6. The court summons, dated August 5, 2009 presented by the [Prosecution] in this case

pursuant to the [Accused]’s discovery request also fails to state the exact section of the

alleged violation charged stating: “WASTE MANAGEMENT CODE- FAILURE TO

HAVE WASTE COLLECTION SERVICE AGREEMENT”. See Exhibit # S-2,

(Summons obtained through discovery request) attached hereto and incorporated herein

by reference. (20)

7. However, this court summons, (Exhibit # S-2) is missing the totally bizarre statement

mentioned on Exhibit # S-1 as apparently, someone has removed it from Exhibit # S-2

for undisclosed reason(s). Both summons (Exhibits # S-1 and # S-2) failed to have a

proper or visible signature placed on them and their legitimacy is in question.

8. These two court summons filed and executed by the Plaintiff as official documents,

forces the [Accused] to defend himself against the entire breath of the Waste

Management Code, in lure by the fact that Plaintiff relies on § 607.960 for its lack of

probable cause to prosecute , by holding that: “Each day a violation continues after

service of written notice to abate such violation shall constitute a separate offense;

however, no notice is required to prosecute and convict a person of any violation of this

Chapter.”

9. The surprise and uncertainty that these two court summons and Information filed in this

case poses to the [Accused], an unnecessarily and indefensibly burden to the exercise of

the right to a fair trial or to enable the [Accused] to mount an adequate defense, or avoid

double jeopardy, and prevent surprise at trial is apparent.

10. To complicate matters further, currently there are five (5) different various or so called

legal versions of the criminal charge of § 607.140 issued by the Plaintiff or used in this

case and their alleged criminal analysis or its prosecution. See the argument herein

concerning these relevant facts.

11. [T]here is no good reason to require the [Accused] to engage in guesswork to determine

who the witness(es) of the offense were, what facts the government will rely on, and who

are the other suspect(s) in this criminal case that were deemed unnecessary to prosecute.

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E.) Discovery Status

From the inception of this criminal case, the government has made little information (one

new document) available pursuant to the [Accused]’ discovery request made and filed on

August 21st, 2009. The [Accused] interests and right to know, the verbal or written statements

of a witness(es) or any agreements made concerning this case or the terms and conditions of

an agreement that is alleged to be a requirement pursuant to § 607.140 is vital. The Plaintiff

has declared they will call Theresa Farrell, apparently serving as a character or complaining

witness on behalf of her employer Veolia ES Solid Waste Midwest, LLC. In addition, the

[Accused] has received only one discovery of document order by the Court ‘an agreement

between Veolia and Plaintiff’ which the defense believes is material to the preparation of the

[Accused]'s defense, however there were no particulars concerning an agreement involving

a ‘property owner’ and ‘the person generating the waste’ in that document signed by the

Plaintiff and Veolia as the legal or contracting parties.

F.) The Accused’s Position on Plaintiff’s Prosecution

The [Accused] contends that the Plaintiff’s prosecution is both vexatious and frivolous,

as to be devoid of merit, because the [Prosecution] is operating utterly without foundation in

law or fact. The [Accused] declares the prosecutor, Molly Chestnut is acting upon erroneous

“..belief, knowledge, or information…” of some unknown “person” only declaring “..and

having probable cause to believe ”… thus issuing an Information without personal “..belief,

knowledge, or information…” as required or pursuit to Missouri R. Crim. P. 21.02.

G.) Clarifications

Plaintiff’s previous curtailed response and opposition to the [Accused]’s First Request for

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a Bill of Particulars; maintaining that the government does not have to provide a Bill of

Particulars to the [Accused] in this case suffers from a fundamental defect in legal

logic… obedience to the U.S. and Missouri Constitutions, (i.e., effective assistance of

counsel, due process of law, equal protection of the law, self incrimination and double

jeopardy rights with the right to prepare a proper defense or avoid surprise at trial). The

Plaintiff’s response to the [Accused]’s First Request for a Bill of Particulars is legally

deficient to recognize the [Accused]’s free exercise of the right to petition the

government for a redress of grievances (a Bill of Particulars is a formal objection) or his

lawful right to protest (his express opposition through words and action), being First

Amendment protections afforded under the U. S. and Missouri Constitution. See Exhibit

# X-1, (Plaintiff’s Response) attached hereto and incorporated herein by reference.

H.) Discussion

The Prosecuting Attorney’s Job

If the prosecuting Attorney refuses to answer the Demand for Bill of Particulars and

brings a person before the court for a plea or to move forward to trial; the Defendant points

out the grounds of their legal deficiencies and that the prosecuting Attorney's job is to “do

justice”. Just as it is the duty of a U.S. Attorney to do so, as quoted by this very relevant,

germane and prevailing U. S. Supreme Court’s statement concerning U.S. Attorney's

responsibilities in the case of Burger vs. U. S., to wit: “The United States Attorney is the

representative not of an ordinary party to a controversy, but of a sovereignty whose

obligations to govern impartially is as compelling as its obligation to govern at all, and whose

interest, therefore, in a criminal prosecution is not that it should win a case, but that justice

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shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the

twofold aim of which is that guilt shall not escape or innocence suffers. He may prosecute

with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he

is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods

calculated to produce a wrongful conviction as it is to use every legitimate means to bring

about a just one.” Berger v. United States, (1934) 295 U.S. 78, 88, 55 S.Ct. 346, ---, 79 L. Ed.

655, ---. To this point… to “do justice” the prosecuting Attorney should be forthright and

obey the U.S. Constitution and the Court doctrines as written.

Rights Guaranteed: Due Process of Law

From the onset of our constitutional history, due process of law, as it occurs in the Fifth

Amendment had been recognized as a restraint upon government, but, with the conspicuous

exception of the Dred Scott decision, (Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857),

is the exception) only in the narrower sense that a legislature must provide ‘due process for

the enforcement of law.’ This is apparent when the Supreme Court Justice ruled against Dred

and Harriet Scott and overturned the decision of a Missouri jury, returning the Scotts to

slavery, thus creating a badge of servitude or for the moment establishing a certain class or a

race as chattel or private property, and could not be taken away from their owners without

due process. The Thirteen Amendment to the United States Constitution officially abolished

and continues to prohibit slavery and involuntary servitude, except as punishment for a

crime. However, the institution of slavery (in the eyes of the [Accused] administrative law

and its enforcement) has only been curtailed by the Supreme Court doctrines of substantive

due process protections or procedural due process rights. The [Accused] is a citizen of the

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State of Missouri and a natural born citizen of the United States of America. The [Accused]

holds no license nor has he made any agreement with the County Health Department or is

subject to the jurisdiction of this administrative agency or its rules. The [Accused] is a

constitutional “person” however, is not a “person” as defined in § 607.040 [Definitions] or a

“person generating the waste” as set forth § 607.140.

“Persons” Defined.

§ 607.040 [Definitions] in sub section # 42 states: “Person means any individual,

partnership, corporation, association, political subdivision, limited liability entity, institution,

or municipality.” This is a legal fiction involving certain actors. However, the [Accused] as

prescribed by a legal element within § 607.140 [Waste To Be Collected]; would have to

become a “person generating the waste”… and a “property owner” which is not defined in

§ 607.040 [Definitions]. It is not clear if a “person” is in fact a “property owner” as set forth

in § 607.040’s definition. It is unknown if a “person” is in fact the “property owner” of a

certain partnership, corporation, association, or limited liability entity as proscribed in §

607.040 [Definitions]. The [Accused] argues that the Plaintiff cannot do directly (establish

trash districts without a vote) what it could not do indirectly (violate County Charter) by

violating a citizen’s right to vote who lives within a trash district. Notwithstanding, the

historical or timeless controversy that has been waged concerning whether the founders of

the Constitution and the framers of our Constitutional Amendments intended the word

“person” to mean only artificial persons, or whether the word was substituted for the word

“citizen” with a particular view to protecting natural persons, and not artificial persons still

remains. Regardless of those arguments, the [Accused] is not an actor in a legal fiction, nor

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is he an indentured servant (a worker, typically a laborer or tradesman, under an agreement

to a business (Veolia) for a fixed period of time). Interestingly, the U.S. Constitution

quantifies a ‘slave’ as 3/5 of a person (“three fifths of all other Persons”) for direct taxing

purposes or for representation. While it’s true that slaves weren’t explicitly defined as 3/5th

of a person within the constitution, it is true, for the purpose of representation, that slaves in

the eyes of government weren’t even considered people, but a form of property. A property

that could be easily ‘ordered about’ or even bought and sold under an agreement, as well as,

punished under state law or by the mere will of their new masters. The [Accused] will not

live under any agreement or “an agreement” that reduces him to a form of property or which

induces him to become an indentured servant or servant status.

The Accused properly notes for the Court, the Plaintiff’s County Council denied a vote

on trash district as required by the County Charter, which is offensive to the concepts

representation, however not to the “contextual approach”, that is the appropriate analysis

under the Thirteenth Amendment. The [Accused] is not a slave to someone’s sins (poor ideas

i.e., no vote) nor can he be define by the local government anything beyond that of a citizen

or as a natural person. In the eyes of the [Accused] with reference to the Waste Management

Program and its Code of Conduct; he has been forced by [law] to become a “person” to

work for an organization (Veolia) under an agreement which is not of his own choosing, thus

falling within the plain meaning of “involuntary servitude”. The [Accused] argues that,

because the organization (Veolia) will receive a tangible benefit of his work is, almost by

definition, “servitude.” Because service is forced upon the [Accused] under the threat of

penalties and enforcement of law, the service is “involuntary.” Therefore, the [Accused]

properly asserts (26)

the waste management program and its code falls within the plain meaning of “involuntary

servitude.” What defines a “person” or the very institution of slavery, or ‘involuntary

servitude’ is for the proper determination of the United States Supreme Court or perhaps “We

the People”. Perhaps what’s even more significant is that 3/5th is perhaps better than being

treated as if you didn’t exist, or had no value or worth. You can’t really justify slavery in any

of its many forms, if an enslaved man or woman (natural persons) has no value and can’t be

counted on for taxes and representation purposes.

Liberty of Contract. 

Liberty of contract is a concept originally advanced by Justices Bradley and Field in the

Slaughter-House Cases, (83 U.S. (16 Wall.) 36 (1873)) which was elevated to the status of

accepted doctrine in Allgeyer v. Louisiana case, 165 U.S. 578, 589 (1897). The U.S.

Supreme Court held: “The liberty mentioned in that [Fourteenth] Amendment means not only

the right of the citizen to be free from the mere physical restraint of his person, as by

incarceration, but the term is deemed to embrace the right of the citizen to be free in the

enjoyment of all his faculties, to be free to use them in all lawful ways; to live and work

where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or

avocation, and for that purpose to enter into all contracts which may be proper, necessary and

essential to his carrying out to a successful conclusion the purposes above mentioned.”

Applied repeatedly in subsequent cases as a restraint on federal and state power, freedom of

contract was also alluded to as a property right, as is evident in the language of the Court in

Coppage v. Kansas case, 236 U.S. 1, 14 (1915). The U.S. Supreme Court held: “Included in

the right of personal liberty and the right of private property--partaking of the nature of each-

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-is the right to make contracts for the acquisition of property. Chief among such contracts is

that of personal employment, by which labor and other services are exchanged for money or

other forms of property. If this right be struck down or arbitrarily interfered with, there is a

substantial impairment of liberty in the long-established constitutional sense.” To that extent

the Court acknowledged that liberty of the individual may be infringed by the coercive

conduct of other individuals no less than by the arbitrary action of public officials, the Court

in effect transformed the due process clause into a source of encouragement to state

legislatures to intervene affirmatively to mitigate the effects of such coercion. By such

modification of its views, liberty, in the constitutional sense of freedom resulting from

restraint upon government, was replaced by the civil liberty which an individual enjoys by

virtue of the restraints which government, in his behalf, imposes upon his neighbors. The

Liberty to Contract is a basic right, such as life or liberty, seen as constituting part of the

order of society and considered independent of and not subordinate to the body of human law

which is based upon someone’s justification. The Plaintiff substantive rights are firmly

secured by the due process requirements of the Fifth and Fourteenth Amendment making this

second request for a ‘Bill of Particulars’ a constitutional consideration for the court’s

deliberations on this matter.

I.) The Violation Notice and Information is “Boilerplate”

The government proffers in their opposition to the [Accused]’s motion and First Request

for a Bill of Particulars, is that the Information in this case is sufficiently specific to apprise

the [Accused] of the charge against him or to enable him to prepare for trial, ignores the

visible and critical gaps in the Plaintiff’s Violation Notice and Information identified in this

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new motion and Second Request for a Bill of Particulars. Plaintiff’s previous response and

opposition to the [Accused] First Request for a Bill of Particulars blurs the legal line between

the [Accused]’s actions and his alleged inactions concerning “an agreement” and a prudent

person’s understanding of what constitutes, “If waste collection service is reasonably

available.” Plaintiff’s previous response and its weak argument remind a sensible person of

the proverb “the most dangerous thing in the world is to try to leap a chasm in two jumps.”

David Lloyd George, British Prime Minister (1863-1945).

When boilerplate appears troublesome, some other mischief is often afoot. A boilerplate,

Information while not a vice itself, is frequently the symptom of a problem that the law

should appropriately address. Legal rules play a useful role in regulating a government’s

Violation Notice and Information that are deemed ‘boilerplate’ but one can make no

progress in understanding this role through blanket assertions about the evils of boilerplate,

when lower Court’s decisions deny a defendant’s request for a Bill of Particulars only to

become a black hole where citizens’ or the [Accused]’s rights can vanish. This case involves

a number of complicated legal and factual issues. The Prosecutor’s criminal charge against

the [Accused] in this case made use of a “short form” Information as the pretext for an

alleged offense of § 607.140 which contained only bald allegations against the [Accused]

without any detail. The [Accused] notes these same boilerplate allegations are used in every

alleged violation of § 607.140 by the Plaintiff concerning their waste management program’s

enforcement. This has creating in part, a vexatious vacuum on the [Accused]’s constitutional

rights and a leap of faith into a legal abyss requiring pure devotion of Plaintiff’s own making.

The complicated legal issues arrive not just from the language used in § 607.140 (i.e “an

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agreement,” “reasonably available,” “waste generated,” or “person generating the waste”).

But, subsequently from § 607.960 unreal mandate that “..Each day a violation continues after

service of written notice to abate such violation shall constitute a separate offense…” It is

doubtless, as §§ 607.140 and 607.960 is clearly vague, arbitrary and unreasonable, having no

substantial relation to the public health, safety, morals, or general welfare; therefore

Plaintiff’s “short form” or boilerplate Information fails to avoid constitutional difficulties.

J.) The Bill of Particulars Requested

This Second Request for a Bill of Particulars is reasonable. It is not a request for the

theory of the government's case and it is not an attempt to restrict the government in its proof

at trial. It is merely an attempt to determine what acts or omissions the government will

attempt to prove the [Accused] allegedly committed so that he may properly prepare a

defense, avoid surprise at trial and avoid a second prosecution for the same or similar act. In

this case, the [Accused] submits that the particular information requested in this motion is

necessary to afford him due process by enabling him to know what acts the government

claims are illegal in order that he may be prepared to defend or explain those acts.

The information requested is narrow and necessary and without particulars, the [Accused]

is not sufficiently advised of the conduct the Plaintiff alleges violated § 607.140 [Waste to be

Collected] or § 607.960 (i.e.“..Each day a violation continues… shall constitute a separate

offense…”) and cannot adequately prepare a defense and avoid prejudicial surprise during

trial. The grounds for granting this motion are further advanced below or set forth herein.

III. LEGAL ARGUMENT

The government’s bold assertion that it enjoys a free-wheeling legal discretion in this cause

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of action (i.e., using Rule 37 et seq., vs. misdemeanor’s rules) against the [Accused] or all those

whose exercise Constitutional rights or practice its doctrines, of which the [Accused] seeks to

properly challenge the Plaintiff’s actions as well as, the [Prosecution]’s conduct in this case;

legal discretions that should be roundly rejected by this court.

An indictment, or in this case an Information, is required to begin a prosecution, unless

waived, as stated in Fifth Amendment of the Constitution of the United States. The accusations

of the Plaintiff have not been waived in this case. The U.S. Supreme Court has noted in many

decisions, that the purpose of a indictment, Information, criminal charge or upon a prosecutor

using a verified complaint, is to inform the accused of the charges so that he may prepare a

defense, and “..in case any other proceedings are taken against him for a similar offense…” to

show accurately the extent of his acquittal or conviction. See Russell v. United States, 369 U.S.

at 749, 82 S.Ct. at 1047(1989); Berger v. United States, 295 U.S. at 78, 55 S.Ct. 629 (1935). The

Supreme Court has established “A crime is made up of acts and intent, and these must be set

forth in the indictment with reasonable particularity of time, place, and circumstances.” The

Court further declared: “It is an elementary principle of criminal pleading that, where the

definition of an offense, whether it be at common law or by statute, includes generic terms, it is

not sufficient that the indictment shall charge the offense in the same generic terms as in the

definition, but it must state the species -- it must descend to particulars.” (quoting United States

v. Cruikshank, 92 U.S. 542 (1875)). The Plaintiff’s Information in this case does not give

sufficient notice to the [Accused] of what he is alleged to have done; he is therefore unable to

prepare an adequate defense, prevent surprises at trial by the [Prosecution] or avail himself of

double jeopardy protection.

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As noted within this brief, the limited facts provided by Plaintiff’s Information fails to

properly inform the court of the facts alleged, so that it may decide whether they are sufficient in

law to support a conviction if one should be had. For this, facts are to be stated, not conclusions

of law alone. The Plaintiff’s legal counsel unitization of their “short form” Information and its

lack of particulars is a daunting challenge, stating in part, of paragraph 2:

“The above-named defendant failed to have in effect a waste collection service agreement for the following location in violation of St. Louis County

Revised Ordinance Section 607.140 and punishable under Section 607.960.”

The [Accused] cannot, based upon language in paragraph 2, formulate a proper defense or

prepare for the anticipated proof to be offered by St. Louis County. To be sure, a reading of

paragraph 2 implicates seven possible scenarios: (a) Does Paragraph 2 intend to charge that the

[Accused]’s alleged legal requirement of “an agreement” as set forth in [607.140] for the

collection of waste generated at a premise(s) failed on or before June 23, 2008; (b) Does

Paragraph 2 intend to charge that the [Accused] never had an agreement, or never had a “service

agreement” on June 23, 2008; (c) Does Paragraph 2 intend to charge that the [Accused] never

had a service agreement prior to June 23, 2008 or never had a “service agreement” on or after

June 23, 2008; (d) Does Paragraph 2 intend to charge that the [Accused] “agreement” never

existed or was not “in effect” because it was not the right kind of an agreement or service

agreement; (e) Does Paragraph 2 intend to charge that the [Accused]’s was to have “an

agreement” versus a “service agreement” for waste collection that was to be “in effect” on the

alleged violation date of June 23, 2008; (f) Does Paragraph 2 intend to charge that the [Accused]

failed to have in effect a “waste collection service agreement” with the St. Louis County

government or some other person or entity; (g) Does Paragraph 2 intend to charge that the

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[Accused] was to assure that an agreement for the collection of waste is in effect, which St.

Louis County created, signed and maintains with ‘Veolia’.

The offense charged in the Information is unknown to the [Accused] and the gravamen of

this offense is centered on “an agreement” or on the status of ‘an account’. It is important for

this Court to note, Veolia established its own so called or arbitrary legal standards for the status

of ‘an account’ in this criminal case against the advice or consent of the [Accused]. The

[Accused] contends this case or its prosecution of him is for a thought crime for exercising

lawful or legal rights. This being the case, it is not sufficient to convict the [Accused] of an

alleged ‘failure’ when others may have conspired to use the [Accused] for illegal purposes,

holding to the fact the [Accused] was never part of “an agreement” to violate the Constitutions’

of the United States or Missouri or the St. Louis County’s Charter or its lawful ordinances made

in pursuance thereof. Thus, the [Accused] is at a loss to determine by what objects of law,

manner, or means he is alleged to have ‘failed’ to do or was to achieve, and/or what he agreed to

do in furtherance of this achievement or its failure. It is also proper for the court to note, the

[Accused] holds no license nor has he accepted administrative compliance procedures as [the

law] to constitute a violation as charged and such further guesswork would render his defense

unnecessarily complicated and burdensome.

Finally, to defend against the Government’s allegations, the [Accused] anticipates that it

will be necessary to call expert witnesses on such subjects as “probable cause” and “contract

law”. In order to focus the efforts of potential expert witnesses on the acts that will actually be at

issue at trial, the [Accused] must be allowed to know which of his acts will be in dispute. The

[Accused] cannot conceivably marshal evidence in preparation for his defense at trial in a

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meaningful way without knowing the particulars of the “probable cause” used or obtained by the

Plaintiff as well as “an agreement he was to have in effect, including the other requested

information filed in his motion. The surprise and uncertainty that the charging document filed in

this case poses to the [Accused] as he prepares to present his defense in Court unnecessarily and

indefensibly burden’s his exercise of his right to a jury trial.

I. 

THE ACCUSED WILL BE UNABLE ADEQUATELY TO DEFEND AGAINST THE INSTANT CHARGE WITHOUT

FURTHER PARTICULARIZING OF ALLEGATIONS

The Plaintiff’s allegations concern the conditions of a certain status of an account and/or

revolve around an agreement that is to be in effect for waste collection. It is impossible to

defend against the legal elements of what is unknown or make a defense of impossibility without

facts or particulars of an agreement that was to be in effect for waste collection. Furthermore, the

legal standards or official conditions for the particular status of an account for waste collection

are currently unknown.

In contract law, impossibility is an excuse for the nonperformance of duties under a

contract, based on a change in circumstances (or the discovery of preexisting circumstances), the

nonoccurrence of which was an underlying assumption of the contract that makes performance

of the contract literally impossible. For such a defense to be raised performance must not merely

be difficult or unexpectedly costly for one party; there must be no way for it to actually be

accomplished. In addition, this criminal case involves someone’s accounting standards. There are

general rules and concepts that govern the field of accounting. These general rules—referred to

as basic accounting principles and guidelines—form the groundwork on which more detailed,

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complicated, and legalistic accounting rules are based. For example, the Financial Accounting

Standards Board (FASB) uses the basic accounting principles and guidelines as a basis for their

own detailed and comprehensive set of accounting rules and standards. If the government does

not apply honest accounting or insist on honest accounting at regulated institutions (Veolia),

what is the point of accounting standards?

In this case the Plaintiff’s Information has no criminal complaint report attached, no

administrative affidavits filed or written statements from potential witnesses made; with the

Plaintiff utilizing a one page “short form” criminal Information sheet which fails to make

reference to or even identify or incorporate the four (single page) attached documents.

The [Accused] has written a large number of letters concerning the problems, issues, and

questions to the Plaintiff, its employees and its agent (Veolia ES) in his attempt to figure out

what kind of agreement/contract that St. Louis County government expects him to have “in

effect” or as a general matter consistent with the Missouri Constitution or a State statute. The

complainant in this case, Veolia, has informed the [Accused] via their lawyers, that no

agreement can exist between the [Accused] and Veolia ES. The reason(s) Veolia would pursue

criminal charges in this case, when they knew or should have known that an agreement cannot

exist in accordance with their policy and practice is beyond legal reasoning or even the court’s

interpretation. See Exhibit # V-1, (Veolia legal dept. letter) attached hereto and incorporated

herein by reference.

The Plaintiff’s Information’s is limited to the vague allegations written in two factory

form paragraphs having four attached documents, along with a court summons containing only

general allegations not attached to or not incorporated by reference with the Information. One

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document, according to the St. Louis County Health Department; the [Accused] was held to be

in violation of § 607.140 –“FAILURE TO HAVE IN EFFECT AN AGREEMENT FOR THE

COLLECTION OF WASTE AT THE ABOVE ADDRESS” See Exhibit # C-1, (Notice of

Citation, dated April 1, 2009) attached hereto and incorporated herein by reference. However,

according to Plaintiff’s court summons the Saint Louis County Counselor’s Office, holds the

[Accused] to be in violation of § 607.140 –“FAILURE TO HAVE A WASTE COLLECTION

SERVICE AGREEMENT” (See attached Court Summons). Interestingly, the County Health

Department believes at this point the “Failure to have in effect an agreement…” is the correct

violation, whereas the County Counselor’s Office believes “Failure to have a…service

agreement” is the proper violation. Nevertheless, the Plaintiff’s Information offers a third

allegation based on a sworn statement from the prosecutor: “FAILURE TO HAVE IN EFFECT

A WASTE COLLECTION SERVICE AGREEMENT”. These three official allegations are

specious arguments and deceptively attractive claims for the conceptions of a legalism

environment (administrative compliance procedures) - whose only common denominator seems

to be that they were necessary for the emergence or existence of a waste management program.

Yet again, and for all intents and purposes, the Waste Management Code, established by

the St. Louis County Council and pursuant to 607.950 –[Authorization for Director to Accept

Payment for Penalties Assessed Herein; Prosecution of Violations] declares a violation of §

607.140 should be cited as or set forth as: “FAILURE TO HAVE AGREEMENT FOR

COLLECTION OF WASTE WITH HAULER HAVING LICENSED VEHICLES WHERE

WASTE COLLECTION SERVICE IS REASONABLY AVAILABLE FOR THE PREMISES.”

This type of wording attempts to swing the pendulum in the other direction by suggesting that

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other legal requirements and actors are involved, as if its newest legal offspring’s are not

acceptable, but indeed, improper or insufficient. However, on the other hand, according to §

607.140 of the Waste Management Code, the “title” clearly is “WASTE TO BE

COLLECTED.” These five (5) different allegations for an alleged single violation or “offense”

requires particularization for a host of reasons, as set forth in this memorandum, excluding or

perhaps noting the material fact that § 607.140’s language, legal construction or its very title

“WASTE TO BE COLLECTED” fails to mention the word “FAILURE” or even recognizes or

legally establishes an overt act of “failure.”

A Bill of Particulars is a proper pre trial request to the Court. “Bills of Particulars are

designed to provide sufficient additional detail to enable an accused to mount an adequate

defense, avoid double jeopardy, and prevent surprise at trial.” United States v. Hallock, 941 F.2d

36, 40 (1st Cir.1991); United States v. Leach, 427 F.2d 1107, 1110 (1st Cir.), cert. denied, 400

U.S. 829, 91 S.Ct. 95, 27 L.Ed.2d 59 (1970).

In this case the specious allegations contained in the Information against the [Accused],

are that he had improperly agreed with or had a disagreement with someone or others or with

person(s), known and unknown, including but not limited to seven possible scenarios listed

above. Plaintiff’s Information is impermissibly vague and lacks the particulars needed to

understand the current charge or the “correct charge” according to the St. Louis County Health

Department and County Counselor’s Office and County Council, thus the [Accused] will not be

able to prepare his defense and in all probability be surprised at trial. Plaintiff’s Information

failed to specify the name of the victim or victims, or the means of the alleged failure, or the

precise terms and condition of an agreement that is alleged to be a requirement pursuant to §

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607.140. If the only thing being alleged against the [Accused] concerns ‘an agreement’ then it

certainly cannot be much of a burden for the Plaintiff to state when the agreement was to take

place, how it was to take place, what type of agreement (verbal vs. written) and between whom,

including but not limited to, all the required terms and conditions of an agreement. If more

particularity is not provided, a number of defenses that may otherwise be present may be

unavailable to the defense. For example, if this Court granted the [Accused]’s request, the

[Accused] may be able to show that on the date(s) the agreement is alleged to have taken place or

not taken place, he was elsewhere or the person(s) he established such an agreement with are, in

fact responsible for the offense charged.

By not providing that information, the entire line of defense is precluded to the

[Accused]. He cannot, prior to trial, prepare a possible alibi defense because there is no

information of where, when and with whom he was to have established such an agreement with

or not with. Furthermore, he cannot compel the appearance of necessary witnesses in court,

because, of course, he does not have the requisite information that would enable him to

determine what witnesses he will need. In other words, the pre trial preparation of the case is

severely compromised. The [Accused]’s right to be represented by counsel is curtailed; counsel

simply cannot do adequate pretrial preparation. In short, the attorney’s constitutional function of

providing an adequate defense for the client is compromised. Again, the [Accused]’s right

against self incrimination may be compromised. If the information relative to the charge is not

specific he cannot know when he can assert his right against self incrimination and when that

right will not lie.

The requested information is also necessary to complete the investigation of the case.

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Otherwise, investigating the case for the defense becomes a practical impossibility. Instead of

concentrating on the people that the government claims were involved with the [Accused] on the

days and/or times that are pertinent, all persons, all days and all times must be investigated, i.e.,

the [Accused] must investigate divers of other persons, known and unknown. How can this be

done in a reasonable manner? The [Accused] does not have the adequate resources nor is there

adequate time to do it.

Without a Bill of Particulars the [Accused] will have no way of knowing, through the

averments in the Information, or its four supporting documents which of the potential personal

contacts that he had on the potential dates in question are alleged by the government to give rise

to the allegations that are the subject of the criminal charges against him. The [Accused] in this

case argues that the Information is too vague to sustain a charge based on an agreement of

undeclared particulars. Furthermore, various agreements are subject to different agency policies

and practices, with the scope of authorization as to each being articulated in different documents,

different sets of oral instructions, and/or different customs and practices amounting to policies,

proof as to which may need to be marshaled through different witnesses, documents, or tangible

evidence. The [Accused] argues Plaintiff’s Information lacks degrees of specificity, (i.e., is

refuse collection, recycling collections, or disposal services involved) to be able formulate a

defense.

Again, if more specific information is not provided as to exactly which agreement or

who’s agreement he allegedly failed to establish, maintain, or enforce with persons, known or

unknown to the [Prosecution], or what date(s) or what time(s) understanding that “..Each day a

violation continues after service of written notice to abate such violation shall constitute a

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separate offense…” pursuant to 607.960 as relative to the alleged criminal conduct, the

[Accused] would have no way to assert a double jeopardy claim. A subsequent prosecution could

be started with exactly the same language as this Information, allegedly referring to a different

agreement between this [Accused] and the same persons or other persons and the [Accused]

would have no way of differentiating for the Court, that the new prosecution is the same, or for

that matter is different, from the instant one. This would defeat his constitutional right to contest

the prosecution on the grounds of double jeopardy.

II. 

THE INFORMATION DOES NOT ADEQUATELY APPRISETHE DEFENDANT OF THE NATURE AND CAUSE

OF THE ACCUSATION AGAINST HIM

The charge in the Plaintiff’s Information is glaringly void of requisite information

concerning the specific acts or omissions involved. The charge as written in no way enables the

[Accused] to understand the “nature and cause of the accusation” against him, as guaranteed by

the Sixth Amendment to the Constitution and to protect himself from double jeopardy as

guaranteed by the Fifth Amendment of the Constitution.

The Plaintiff’s Information for all intents and purposes, consists of a single page having

two paragraphs using a set of standardized information boxes. The first paragraph consists of one

sentence having standard non descriptive language used in most government style Information.

The second paragraph consists of two sentences with the first sentence using approximately 32

words to set forth and describe the entire criminal charge made against the [Accused]. The

second sentence of paragraph 2 has a standard warning for failing to appear on said charge. Of

the 49 words used in the second paragraph, only 16 words describe an alleged action or more

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accurately an alleged “inaction,” however, only 7 of those words set forth a meaningless “nature

and cause” of the accusation against him. These seven words are (listed in bold print):

“The above-named defendant failed to have in effect a waste collection service agreement for the following location in violation of St. Louis County

Revised Ordinance Section 607.140 and punishable under Section 607.960.”

In this case the Plaintiff’s Information gives the [Accused] insufficient notice of the

nature and cause of the accusation against him, with “waste collection service agreement”

mentioned, however not the nature of this agreement, or the overt acts he is alleged to have

performed in order to cause or perpetuate the charged alleged against him. Section 607.140

[Waste to be Collected] states:

“If waste collection service is reasonably available for a premises where waste is generated, an agreement shall be in effect for the collection of waste generated on the premises with a waste collection service having waste collection vehicles licensed by the Director for the collection, transportation, and disposal of waste. It shall be the responsibility of the property owner and the person generating the waste to assure that an agreement for the collection of waste is in effect.”

There is no doubt that “waste collection service” is referred to “twice” within § 607.140 wording

along with the term “an agreement” being distant from and ambiguous to inform the [Accused]

substantially, on what the Plaintiff's Information is founded on which is, in part a “waste

collection service agreement”. The Plaintiff’s Information further fails to track the exact

wording of the relevant portion of the ordinance § 607.140 with which the [Accused] has been

charged. The Plaintiff’s Information alleges, in part: “The above-named defendant failed to have

in effect a waste collection service agreement for the following location in violation of St.

Louis County Revised Ordinance Section [607.140]…” However, Section [607.140] simply

states, in part “If waste collection service is reasonably available for a premises where waste is

generated, an agreement shall be in effect…” This § 607.140 wording conclusory statement

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notwithstanding, nothing in the evolution of this ordinance suggests that the County Counselor’s

Office foreign adoption of a different view in favor their own failure to follow the ordinance §

607.140 as written, properly informs the [Accused] of the nature and cause of the accusation

against him.

The Plaintiff’s Information makes no reference to the [Accused] being a “property owner

and the person generating the waste” thus the Plaintiff’s Information once again fails to track the

exact wording of § 607.140 or set forth particulars concerning the proximity of the [Accused] to

the relevant events. Such a role played by this exchange in Plaintiff’s adherence to various

fictions, illegal agreements and future potential charges under § 607.960 is limited to certain

facts of law, i.e, “..It shall be the responsibility of the property owner and the person generating

the waste to assure that an agreement for the collection of waste is in effect…” Furthermore,

the [Accused] argues ordinance [607.140] fails to give fair warning of the illegal conduct

proscribed by Plaintiff’s Information. Plaintiff’s Information is a lack of notice, details, and

relevant facts using bald accusations, brought against the [Accused] requiring a person of

common intelligence to guess unnecessarily at its meaning and differ as to its application.

Plaintiff’s Information is ferreting out criminal conduct, using conclusory terms that an offense

had been committed, and did not state the source of the information. The Plaintiff’s

Information fails to even state if the “agreement for the collection of waste” involves or relates

to: “Household Waste”, “Infectious Waste”, “Biohazard Waste”, “Bulky Waste”, “Hazardous

Waste”, “Organic Waste”, “Solid Waste”, or “Special Waste” as defined pursuant to § 607.040

[Definitions]. These facts notwithstanding, the mixture of other baseless prosecutorial

accusations in the Plaintiff’s Information or its “attached documents” promotes a propensity

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theory of probability to mislead the [Accused], rather than to enlighten him of the nature and

cause of the accusations or criminal charge against him.

Section 607.140 [Waste to be Collected] of the Waste Management Code uses 78 words

creating a host of special terms and phrases for the understanding of the meaning and use of

language for an innovative account of a law as the practical expression of the will of “Waste to

be Collected”. The practices of this legal expression to which this passage alludes [Waste to be

Collected] could include the retroactivity of judicial decisions in a case of first impression, even

novel or unexpected ones. The Court taking ‘Judicial Notice’ of a person generating waste

comes to mind currently. This being the case the [Accused] properly notes that the 78 words

used for its collective expressions and phrases makes no statements that any actions or most

importantly “inactions” are illegal or criminal in nature. The Plaintiff’s Information makes no

reference to whether the alleged offense of § 607.140 is a crime of violence, passion, or stealing.

While every crime violates the law, not every violation of the law counts as a crime; e.g.,

breaches of contract and other civil law may rank as offenses or as infractions. This in itself

makes the [Accused]’s request for Bill of Particulars appropriate to permit a defendant to identify

with sufficient particularity the nature of the charge and its accusations against him, thereby

enabling a defendant to prepare for trial, to prevent surprise, and to interpose a plea of double

jeopardy should he be prosecuted for the same offense.

The [Accused] points out that this is not a case in which “payments” and “services” were

never delivered, and there is no allegation as such. The Government does not claim that the

[Accused] entered into an agreement with Veolia, just allegedly “failed to have in effect a waste

collection service agreement” apparently according to the terms and condition set by the County

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Counselor’s Office, not of the language in § 607.140. As noted by the [Accused], this is not a

case involving phantom procedures, goods, or services to compel a vain act. The [Accused]

needs to know with sufficient particularity the “nature and cause of the accusation” against him

setting forth certain applicable and material facts relevant to the issue of the charge.

III.

THE INFORMATION AND ITS’ DOCUMENTS IS FUNDAMENTALLY AMBIGUOUS AND DOES NOT ADEQUATELY EXPLAIN THE

ACCUSED’S ACTIONS OR THE CHARGE AGAINST HIM

The Plaintiff’s Information makes no reference to the four attached ancillary documents.

Three of these documents obfuscate the fact that they have been altered or changed in a violable

way. This becomes visible when compared to the original mailed versions to the [Accused]

address. The [Accused] has identified three of these official documents as (1) Warning Letter, (2)

Notice of Violation, and (3) Notice of Citation, all of which are presented as “administrative

compliance procedures” (hereinafter set forth as “[ACP]”) stated in Ms. Patricia Redington’s

letter, of June 1, 2009. The fourth document is titled “Assessment Information” and the relevance

of this document is unknown at this time. The [Accused] who is well versed in the application of

the law has taken note that there are no ordinances (law) that specifically establish a (1)

‘Warning Letter’, (2) ‘Notice of Violation’, and (3) ‘Notice of Citation’ thus, these [ACP] were

instituted without the force and effect of law, with its alleged violation(s) void of any criminal

penalties or sanctions. The Plaintiff’s Information and these [ACP] are fundamentally

ambiguous and do not adequately explain the [Accused]’s actions or the criminal charge made

against him.

This is evident as Chapter 607 of the Waste Management Code makes no mention of

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these [ACP] authorizing such government actions. Furthermore, there are no rules pursuant to

607.900 [Rulemaking] that sanctioned or established these [ACP]. This is confirmed, in part, by

the letter from Ms. Frank, Administrative Director of the County Council to the [Accused],

dated, September 1, 2009 regarding 607.900 (“Rulemaking”) in which she stated: “To date, no

rules or regulations established pursuant to Section 607.900 of the St. Louis County Waste

Management Code have been filed with the Administrative Director of the County Council.” See

Exhibit # W-1, (Ms. Frank’s Letter) attached hereto and incorporated herein by reference. Simply

put, NO RULES AND NO LAWS have been established for these [ACP] or any other forms or

types of administrative compliance procedures.

The [Accused] observed that the (1) “Warning Letter” and (2) “Notice of Violation”

make no mention of ordinances 607.140 or 607.960. The “Notice of Citation” does cite

ordinance 607.140, however the words of the actual charge is moderately different from

Plaintiff’s Information. All three of these [ACP] are in support of the enforcement of “trash

district” or a district hauler’s agreement with the Plaintiff. However, NO AUTHORITY can be

granted to establish “trash districts” or a district hauler in the unincorporated areas of the County

without the majority of voters approving it. To this date no vote has been granted to the voters of

this County or the [Accused] to lawfully establish § 607.1300- [Designation of Collection Areas

of the Waste Management Code] or be subject to such collection areas. Pursuant to Article II-

Section 2.180 (24) of the St. Louis County Charter requires a vote, which has been violated,

because there was no vote by the voters within these trash districts to approve a trash collection

district plan. This kind of debasement or dilution of a Constitutional right to vote has been

created or established through the unlawful actions of the Plaintiff’s creation and enforcement of

Trash Districts. (45)

The gist of the Plaintiff’s Violation Notice and Information, its’ attached documents or

the release of one new discovery document by the Plaintiff is unknown at this time. The

[Accused] observed, as a skilled, educated and experienced retired police officer, is that the

Plaintiff’s Information or Plaintiff’s supporting documents failed to refer to or list: (1) facts of an

existing witness to the offense or witnesses statements; (2) the existence of a criminal complaint

or a verified complaint filed; (3) known victim or victims identified; (4) investigator or

investigators utilized; (5) customer account records or the [Accused]’s account information from

Veolia was not provided; (6) a personal affidavit in support of or sworn statements from any

person, except from the Assistant Counselor Molly Chestnut; (7) a preliminary statement that a

formal investigation was conducted or submission of a detailed investigative report completed;

(8) facts or documents concerning the [Accused]’s written statements or letters mailed to

Plaintiff, its employees, officers or Veolia; (9) facts of the severity or seriousness of the violation

(10) facts whether the alleged violation was willful or intentional; (11) facts whether the

[Accused] acted in good faith to avoid or mitigate the violation, or to correct the alleged

violation when contacted; (12) facts whether the respondent has engaged in similar violations in

the past (13) Copies of pertinent reports; or of the ‘Hindsight Agreement’; (14) facts of a

specific practice or the service involved in the alleged offense; (15) facts involving the denial of

services or the proper access to a governmental benefit program. For reasons stated herein and

above, the [Accused] has made the requisite showing of “actual surprise and substantial

prejudice” required by U.S. Supreme and Circuit Courts precedents for a Bill of Particulars.

IV.LEGAL STANDARD

“It is axiomatic that a criminal defendant should be given enough information about the

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offense charged so that he may prepare adequately for trial.” See United States v. Rogers, 617 F.

Supp. 1024, 1027 (D. Colo. 1985). To the extent a criminal defendant identifies defects in an

indictment or an Information, a motion for bill of particulars should be filed, because “the

government [is] under no obligation to volunteer such information” unless requested. See United

States v. Hance, 501 F.3d 900, 906 (8th Cir. 2007).

“A bill of particulars serves to inform the defendant of the nature of the charge against

him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger

of surprise at trial, and to enable him to plead his acquittal or conviction in bar of another

prosecution for the same offense when the indictment is too vague or indefinite.” United States

v. Hernandez, 299 F.3d 984, 989-90 (8th Cir. 2002). It is well established that in order to show

reversible error from the denial of a motion for a bill of particulars, a defendant must show that

he/she was actually surprised at trial and suffered prejudice from the denial. United States v.

Hernandez, 299 F.3d 984, 989-90. The granting or denial of a bill of particulars lies within the

broad discretion of the trial court. United States v. Hernandez, 299 F.3d 984, 989-90 (8th Cir.

2002); United States v. Maull, 806 F.2d 1340, 1345 (8th Cir. 1986); United States v. Arenal, 768

F.2d 263, 268 (8th Cir. 1985); United States v. Gray, 464 F.2d 632, 635 (8th Cir. 1972). A bill of

particulars, however, is not a tool for discovery and is not to be used to provide detailed

disclosure of the government's evidence. United States v. Wessels, 12 F.3d 746, 750 (8th Cir.

1993). A motion for a bill of particulars should not be granted if the desired information has been

provided through pretrial discovery or in some other acceptable manner. United States v.

Wessels, 12 F.3d 746, 750 (8th Cir. 1993). All of these purposes will be served by a bill of

particulars in this case. All of these purposes or legal standards will be served by a Bill of

Particulars in this case. (47)

Missouri Rules of Criminal Procedures

Rule 23.04 of the Missouri Rules of Criminal Procedure provides that the Court may

direct the filing of a Bill of Particulars upon a Motion by the Defendant. Rule 23.04 states:

“When an indictment or Information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare his defense, the court may direct or permit the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.”

Rule 23.01 of the Missouri Rules of Criminal Procedure provides:

(a) The indictment or information shall be in writing signed by the prosecuting attorney, and filed in the court having jurisdiction of the offense. The indictment shall also be signed by the foreman of the grand jury.

(b) The indictment or information shall:

1. State the name of the defendant if known, or if his name is not known, the defendant may be designated by any name or description by which he can be identified with reasonable certainty;

2. State plainly, concisely, and definitely the essential facts constituting the offense charged;

3. State the time and place of the offense charged as definitely as can be done;

4. Cite the section of the statutes alleged to have been violated and the section of the statutes which fixes the penalty or punishment therefor; and

5. State the name and degree, if any, of the offense charged.

(c) The name of the defendant, if known, shall appear in the caption of an indictment or information and thereafter the word 'defendant' wherever used in the indictment or information shall refer to the defendant named in the caption.

(d) Allegations made in one count of an indictment or information may be incorporated by reference in another count.

(e) All indictments or informations which are substantially consistent with the forms of indictments or informations which have been approved by this Court shall be deemed to comply with the requirements of this Rule 23.01(b).

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(f) The names and addresses of all material witnesses for the prosecution except rebuttal witnesses and witnesses who will appear upon the trial for the production or identification of public records shall be listed. Additional witnesses may be listed at any time after notice to the defendant upon order of the court.

(g) A copy of a document may be attached to, and incorporated in, an indictment or information, by reference.

Applicable Law Regarding a Bill of Particulars

A defendant should not be deprived of information needed to prepare a defense, simply

because the information might be used by the government as evidence. See United States v.

Crisona, 271 F.2d 156 (S.D.N.Y.1967).

Moreover, a Motion for Bill of Particulars cannot be denied on the theory a defendant

“knows” what he or she “did.” Such a ruling effectively stands the presumption of innocence on

its head, in assuming a defendant has knowledge of his or her own acts, which were in fact

“guilty.” See United States v. Tanner, 279 F.Supp. 683, 695-696 (D.Del.1971).

In evaluating any motion for a Bill of Particulars, the Court is called upon to make a

“particularized decision” which takes into account the amount of facts stated in the indictment or

in this case the Information. See United States v. Thevis, 474 F.Supp. 117, 123 (N.D.Ga. 1979);

United States v. Barket, 380 F.Supp. 1018, 1021 (W.D.Mo. 1974).

It is well settled that “..when a State opts to act in a field where its action has significant

discretionary elements, it must nonetheless act in accord with the dictates of the Constitution --

and, in particular, in accord with the Due Process Clause…” Evitts v. Lucey, 469 U.S. 387, 401

(1985). Unquestionably, a bill of particulars is not meant as “a tool for the defense to obtain

detailed disclosure of all evidence held by the government before trial.” United States v.

Salisbury, 983 F.2d 1369 at 1375 (citations omitted).

(49)

THE FIFTH, SIXTH AND FOURTEENTH AMENDMENT MANDATES DISCLOSUREOF THE FACTUAL INFORMATION SOUGHT HEREIN.

 Plaintiff’s Information, its’ attached documents or the Plaintiff’s regulated release of 15

discovery documents, delivered on December 28, 2009 has taken the imaginative -- but legally

unsupported leap to conclude that by blurring the legal requirements placed on licensed waste

haulers by St. Louis County; the [Accused] has “somehow” surrendered certain Constitutional

rights and is suddenly chargeable under § 607.140, [Waste to be Collected] and deemed

enforceable or punishable under § 607.960 [Penalties and Enforcement]. The Plaintiff’s

conclusions of fact and law are apparent and become self evident when examining Plaintiff’s

Information and supporting documents.

The Contract Clause appears in the United States Constitution, Article I, section 10,

clause 1. It declares, in relevant part: “..No State shall... pass any Bill of Attainder, ex post facto

Law, or Law impairing the Obligation of Contracts…” Article I, Section 10, of the United States

Constitution contains a list of prohibitions concerning the role of the states in political, monetary,

and economic affairs. The [Accused] has exercised his right to contract, while understanding a

duty to fulfill those obligations under the semblance of a liberty found in the Due Process Clause

of the Fourteenth Amendment, the “liberty of contract.” 

The [Accused] also conceives that it is his constitutional duty to ‘assert our rights,

acknowledge our duties, and proclaim the principles on which our government is founded’, when

evils arising from such ordinances [607.140, 607.960 and 607.1300] which could be more far

reaching than those that might come to our system of government if he or the judiciary, abandons

their moral or lawful spheres assigned to them by the fundamental law of a Nation, a State or a

local government. The [Accused]’s agreements or disagreement concerning Constitutional evils

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has nothing to do with the right of a majority in a legislative body to embody their opinions in

law, as seen within [607.140, 607.960 and 607.1300]. A Bill of Particulars is therefore necessary

to provide adequate notice concerning this case. Otherwise, the Constitution of the United States

or the Missouri State Constitution is violated in the following respects:

1. Due process, as required by the Fifth and Fourteenth Amendment to the United States

Constitution or Article 1, Section10 of the Missouri State Constitution is not observed;

2. The effective assistance of counsel, the opportunity to confront any accuser, and the

right to cross-examine all witnesses and a compulsory process are not protected as required by

the Sixth Amendment of the United States Constitution, or Article 1, Section 19 of the Missouri

State Constitution and;

3. The [Accused] is not properly afforded his Fifth Amendment rights to the United

States Constitution or Article 1, Section 10 of the Missouri State Constitution against self

incrimination or to the protection of the double jeopardy clause of the same documents.

A Bill of Particulars, unlike most criminal discovery devices, directly implicates the Sixth

Amendment's guarantee of the Right to make a vigorous and prepared defense in a criminal case.

See United States v. Tanner, supra, 279 F.Supp. at 473-74. The Sixth Amendment to the United

States Constitution guarantees that a criminal defendant shall “be informed of the nature and

cause of the accusation” against him; in turn, the Fifth Amendment ensures that no one

“shall . .. be deprived of life, liberty, or property, without due process of law.” U.S. Const.

Amend. VI. Interpreting these provisions, the Supreme Court has stressed that due process

requires notice of the charges and a reasonable opportunity to defend or explain. Powell v.

Alabama, 287 U.S. 45, 59, 69-73 (1932).

(51)

SIXTH AMENDMENT states: –

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const. Amend. VI.

Guarantee of Adequate Notice. The Sixth Amendment, which is applicable to the states through

the Due Process Clause of the Fourteenth Amendment, see In re Oliver, 333 U.S. 257, 273-74

(1948), guarantees a criminal defendant a fundamental right to be clearly informed of the nature

and cause of the charges against him. In order to determine whether a defendant has received

constitutionally adequate notice, the court looks first to the information. James v. Borg, 24 F.3d

20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994). “The principal purpose of the information is

to provide the defendant with a description of the charges against him in sufficient detail to

enable him to prepare his defense.” Id.

The Sixth Amendment guarantees a criminal defendant or the [Accused] “a fundamental

right to be clearly informed of the nature and cause of the charges in order to permit adequate

preparation of a defense.” Sheppard v. Rees, 909 F.2d 1234, 1236 (9th Cir. 1989). Thus, “Due

process entitles an accused to know the charges against which he must defend in order to have a

reasonable opportunity to prepare and present a defense and not be taken by surprise at trial.”

Usher v. Gomez, 775 F. Supp. 1308, 1313 (N.D. Cal. 1991), aff'd, 974 F.2d 1344 (1992), cert.

denied 113 S. Ct. 1007 (1993).

The Sixth Amendment requires that a citizen “be informed of the nature and cause of the

accusation.” It is a well-settled principle of law that a person needs to know what law or duty

was violated. United States v. Cruikshank, 92 U.S. 542 (1876); Sheppard v. Rees, 909 F.2d 1234

(52)

(9th Cir. 1989). The notice provision of the Sixth Amendment, which is applicable to the states

through the Due Process Clause of the Fourteenth Amendment, see In re Oliver, 333 U.S. 257,

273-74 (1948), guarantees a criminal defendant a fundamental right to be clearly informed of the

nature and cause of the charges against him. In order to determine whether a defendant has

received constitutionally adequate notice, the court looks first to the information. James v. Borg,

24 F.3d 20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994). “The principal purpose of the

information is to provide the defendant with a description of the charges against him in sufficient

detail to enable him to prepare his defense.” Id.

When the charging document lacks sufficient particularity to allow a defendant to prepare

a defense, as in this case, the Defendant's ability to confront adverse witnesses and to use

compulsory process is seriously inhibited, if not irreparably obstructed. Obviously, due process

requires that an accused enjoy the opportunity to defend, including being able to examine

witnesses, offer evidence in defense, and be represented or assisted by a fully prepared trial

counsel. See In re Oliver, 333 U.S. 257 (1948). Denial of the Right to defend is an error of

constitutional magnitude, requiring proof that the error involved was harmless beyond a

reasonable doubt. Chapman v. California, 386 U.S. 18, 23-24 (1967). Therefore, any judicial

doubt concerning the [Accused]’s Motion herein must be resolved in favor of disclosure, due to

the fundamental public interest in giving the accused a right to mount a defense. See United

States v. Manetti, supra, 323 F.Supp. at 696. Any impairment of the ability to mount a defense

constitutes prejudice. United States v. Valenzuela-Bernal, supra, 458 U.S. at 869.

The Fifth Amendment to the United States Constitution, which is part of the Bill of

Rights, protects against abuse of government authority in a legal procedure.

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FIFTH AMENDMENT states: –

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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”

The Fifth Amendment, in relevant part, provides that no person “shall be compelled in any

criminal case to be a witness against himself.” It has long been held that this prohibition not only

permits a person to refuse to testify against himself at a criminal trial in which he is a defendant,

but also "privileges him not to answer official questions put to him in any other proceeding, civil

or criminal, formal or informal, where the answers might incriminate him in future criminal

proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

The Fifth Amendment can be asserted in any proceeding, civil or criminal, administrative

or judicial, investigatory or adjudicatory; and it protects against any disclosures which the

witness reasonably believes could be used in a criminal prosecution or could lead to other

evidence that might be so used.' Kastigar v. U.S., 406 U.S. 441, 44-45 ('72).

This is of particular relevance here, because a Bill of Particulars has a fundamental

connection to the Fourteenth Amendment due process requirements, especially when Plaintiff’s

Information, and its’ supporting documents is an unreasonable, unnecessary and arbitrary

interference with the right and liberty of the individual to contract, or his liberty interest in the

right to vote, speech or right of association.

Beginning with Allgeyer v. Louisiana (1897), the Court interpreted the Due Process

Clause of the Fourteenth Amendment as providing substantive protection to private contracts and

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thus prohibiting a range of social and economic regulation, under what was referred to as

“freedom of contract”.

FOURTEENTH AMENDMENT states, in 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.”

In Frisbie v. United States, 157 U.S. 160 (1895), the Court, speaking through Justice David

Brewer, offhandedly declared that “generally speaking, among the inalienable rights of the

citizen is that of the liberty of contract.” The Supreme Court gradually accepted the notion that

liberty of contract was an enforceable constitutional right under the due process clause. The rule

is an aid to construction and in some instances may be conclusive, but it must yield to more

compelling considerations whenever such considerations exist. The fact that the right involved is

of such a character that it cannot be denied without violating those "fundamental principles of

liberty and justice which lie at the base of all our civil and political institutions" (Hebert v.

Louisiana, 272 U. S. 312, 272 U. S. 316), is obviously one of those compelling considerations

which must prevail in determining whether it is embraced within the due process clause of the

Fourteenth Amendment.

In the present case, a Bill of Particulars is necessary here to afford the [Accused] a full

array of constitutional rights, because Plaintiff’s Information contained no detailed information

of the criminal acts, or elements of an agreement; all being based on the interpretations of the

prosecutor purporting a ‘criminal charge’ leveled against the [Accused]. To decide otherwise

would simply be to ignore actualities.

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CONCLUSION

In order to preserve the [Accused]’s constitutional rights, as outlined in the Fifth, Sixth and

Fourteenth Amendments to the United States Constitution, the related section of the Missouri

Constitution, pertinent case law, as well as, that the basis the purpose of a Bill of Particulars is to

provide the [Accused] of the details of the alleged offense, inter alia, the nature of the charges,

which are omitted from the Plaintiff’s Information against him and which are necessary to enable

the [Accused] to understand the charge against him (as guaranteed by the Sixth Amendment to

the Constitution) and to protect him from double jeopardy (as guaranteed by the Fifth

Amendment of the Constitution) and, inter alia, reasons set forth herein, therefore the Court

should require the government and the [Prosecution] to produce a written Bill of Particulars as

set forth in the attached motion.

Respectfully Submitted, _______________________________Terry Lee Hinds, Pro Se438 Leicester Sq DriveSt. Louis, Missouri 63021Tel# 314-795-3115Executed 15th day of October, 2010

CERTIFICATE OF SERVICE

The above signed certifies that a true and correct copy of the foregoing, was provided to the Plaintiff on this 15th day of, October 2010 by U.S. Certified Mail, first class postage prepaid, to:

County Counselor Molly ChestnutThe Office of the County Counselor41 South Central Ave. Clayton, MO. 63105

Certified Mail Return Receipt #7009-0960-0000-0249-6491

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