Complaint Against The kansas Commission on Judicial Qualifications, Judge Lori Bolton Fleming, Judge...

Kansas Commission on Judicial QualificationsS~ptcm6f:i i\dO).5, ".Y .-~., __ ,~ -

301 SW 10th

Topeka Ks 66612

Case No 14-10018-EFM United States vs. James Russian

DUE TO RETALIATION UNDER RULE 2.16(1\)(B) FROM~SE NUMBERS06DM129P AND 2011CR93g

THIS COMPLAINT IS AGAINST THE KANSAS COMMISSION ON JUDICIAL QU~IFICATIONS,~.\

PANEL A AND PANEL B FOR FAILING TO PROPERLY ASSEMBLE ABOClffiALRLAN UKE WAS

RECOMMENDED IN the case of In re Platt, 269 Kan. 509, 8 P.3d 686 {2000}whkh was aREPORTED JUDICIAL DISCIPLINARY CASE UNDER RULE 601A IN THE EXAMPLES IN THE 2013

ANNUAL REPORT FROM THE KANSAS (OMM~SSIN ON--JU-Dl-ClAl QUAUHCATIONS.

THIS IS ALSO A COMPLAINT AGAINST THEM FOR LACK OF SUBJECT MATTER J~ICTION TO

HEAR ANY COMPLAINT FILED BY ~Y SELF DUE TO A CONFLICT OF INT-fRfSI~ RULE2.11(A) BECAUSE AN INJUNCTIVE RELIEF PETITION WAS FILED IN CASE NUMBER 2015CV79P IN

CRAWFORD COUNTY ON JULY 22,2015 AGAINST PANEl A AND PANEl B FOR FAILING TOINVESTIGATE COMPLAINTS PROPERLY-WHICH LED TORETALIATIONS-t.lJtWEB:,~ULE 2.16 BY 11TH

DISTRICT JUDGES LORI 'FLEMING, A.J. WACHTER, AND KURTIS LOY AGAINST JA.-'..~.,\IES DONALANDRUSSIAN FOR PAST ETHIC CMPLAINTS WHERE HE GOT 11T-HDISTRJcrdtIDi:f?~EPRIMANDS

BUT HE RECEIVED ONE LETTERAND THE JUDGES RECEIVED ANOTHER LETTERWHICH LED TODAMAGES.

THE KANSAS COMMISSION ON JUDICIAL QUALIFICATIONS FAILURE TO DUE THBI\JOB HAS LEDTO THE VIOLATIONS OF THE FOLLOWING 11TH DISTRICT JUDGES: '

THIS COMPLAINT IS AGAINST 11THDISTRICT JUDGE LORI BOLTON FLEMING. KURTLOY, AND CHIEF JUDGE A.J. WACHTER FOR CONSPIRING TQDEmlJVE JAMESDONALD RUSSIAN OF CIVIL RIGHTS BECAUSE OF HIS PAST COMPLAIN~S WITH THEKANSASCOMMISSION ON JJUDICIAL QUALI FICATIONS AND THEYREJ;tLlATEDAGAINST HIM UNDER RULE 2.16(A)(B) BECAUSE "NONE" O~~ES IN THE11THDISTRICT HAD SUBJECT-MATTER JURISDICTION BECAUSE HE IS USED AS AN

EXAMPLE IN 2011 AND 2012 EXAMPLESOF "IMPROPER CONDUCT' ~.,.,.OCMHISAPRIL 24, 2011 COMPLAINT ON JUDGE A.J. WACHTER, AN[}-tll~~LAINT ONDONALD NOLAND IN JANUARY OF 2012 WHICH IS USED AS AN 'EXAMPLE UNDER"IMPROPER CONDUCT' ASWELL AS HIS JUNE 12, 2011 COMPLAINT ON CITYJUDGE FREDERICK SMITH WHICH WAS LISTEDAS AN EXA~JN~-zo:\l UNDER,"PROPER JUST OUTSIDE JURISDICTION" WHICH SHOWS THAT ALL JU,.'.'?:,.GESIN THE11THDISTRICT OF CRAWFORD SHOULD HAVE Dt5QUALlFIED T~~ES UNDER

"

RULE 2.11 (A) AND K.S.A 20-311d AND BY FAILING TO FOLLOWTHE CODE OFJUDICIAL CONDUCT NONE OF THE ABOVE MENTIONED JUDGES HAD ANYSUBJECT MATTER JURISDICTION TO HEAR ANY OF HIS CASES-AETER2011!

My friend Jamie Russian is "loud and annoying" and I will be the first to a

Lori Fleming has sinced "FORGED" a search warrant on James Russian and has lied a~out stalking herso that he could not receive "BOND". The Federal prosecutor in his federnh:ase:clmmf their was anemail sent from Lori Fleming to him stating that Mr. Russian was stalking Lori Fleming so when thenew committee who investigates her for the email takes-her computer to check the email I wouldalso like for your committee to look for this "EMAIL"where she lied about him stalking her becauseit is impossible from where she claims it happened. She would have called the police immediatelybecause she is a "COP CALLER"and has always "TATTLED"on people h.ec"wltok-~o whywouldn't Lori Fleming have "TATTLED"on James Russian aswell unless it was a "LIE"which it was.

Lori Fleming has proved she is "EXTREMELYUNETHICAL" please investigatecMktgese cases andinvestigate why Judge Wachter came back in case number 13DM308P TlMOT.HYkvNDIGER andNATALIE KUNDIGERVS. JAMES RUSSIANwhen James Russian pr-ev4uus1y-getJA.J.Wachter aletter of caution and "improper conduct" example in 2011 and A.J:W;i

and Rule 2.3 Bias, Prejudice, and Harassment which has led to more ha~ment andunethical actions from the 11thjudicial district. "~\

I

This also shows just how incompetent both Judge Kurt Loy and Judge AJ. Wachter are byboth notkrrowingthatitwas "FOREMH OF THEIRINFORMA'I'l-N ONLY"Kurt Loywasnot even suppose to show Judge Wachter then Judge Wachter actnarrrfite ..s.}l)e"ORDER"publicly so people like myself can have public access to so we can make a co~laint underhim for failing to follow Canon 2 where a judge has to perform dutlesctH!1~ntly whichthey both failed to do under Rule 2.5 Competence, Diligence, and Cooperation.

I have included the Mardi 31, 201Zretirement article on Donald Noland by The MorningSun and Chief Judge A.J.Wachter calls Donald Noland "THEGODFATHER"-r'~ says familiesattended funerals not so much out of respect but to make sure he was dead!! !,~

What kind of judicial system has judges who make jokes like that Wheri-"-lffi GODFATHER"judge Donald Noland has ruined more "FAMILYLIVES"than any "GODFATHER"everthought of with the illegal incarcerations he has issued out wher~~ not have subjectmatter jurisdiction and the numerous conflicts of interest and violations of.~ "OATHOFOFFICE"he was involved in! "

1Is the reason why James Donald Russian had Judge Lori Fleming, Judge AJ. Wachter, andJudge Kurtis Loy conspire.to illegally incarcerate him because he "FORCEDTHEGODFATHER"to an "EARLYRETIRMENT"and "THEGODFATHER:~Aas an example of"IMPROPERMISCONDUCT"in 2012!

\P.S.I have included the "search warrant" that is more like a carto~an an actualsearch warrant on James Russian's illegal federal arrest. Ifyou are actually interested indoing a thorough investigation you can check u.S. vs James D.Russiaa.from February 24,2014 hearing (Wichita, Kansas) whose audio can be heard using tfferInk'-ot,,\VWw.tinyurl.corn/p Zowy'Zy "or" www. YouTube.comj watch?v=jox38H6r;~~ ~ can jump to21:42 minute mark onwards to hear for-your-self how-the blatant-lie . .. _ se of office of

Lori Fleming on James Russian which led to him being denied bail.

"Check case No. 106,150" State of Kansas, appellee, v ..Tyjuna M. Sharkey, appellagtto also see howJames Russian received "ineffective assistant of counsel" when his own court appointet\fttorney DouglasAdams tries to disqualify himself but is not allowed by magistrate Kenneth G. Gale.. \

Kasey King

Very truly yours

PO Box 101

Opolis Ks 66760

Cc

Debra L. Barnett

Office of United States Attorney Wichita

301 North Main Street, Suite #1200

Wichita, KS 67202

Terminated Federal Prosecutor but then "Designation" Retained

Alan G. Metzger

Office of United States Attorney Wichita

301 North Main Street,-Suite #1200

Wichita, KS 67202

rr Court appointed in~~ctive counsel )./Douglas Adams Jr.

200 Worth Broadway St. Suite 300

Wichita, Ks 67202

Magistrate Judge Kenneth G. Gale

United-States District Court

401 North Market, Suite 403

Wichita, Ks 67202

James Russian

clo Butler county Jail

701 S Stone Road

EI Dorado Ks, 67042

April 24, 2011

To Whom it May Concern:

I am filing a complaint on Judge A.J. Wachter for his unethical behavior in Case Number 06DM129P.

Judge Wachter was biased against me before this case started because I filed a private infernational

administrative remedy demand and commercial claim within admiralty on Mr. Wachter. Judge Wachter

also is biased against me as we both were of the Catholic faith and I am no longer attending the Catholic

church I was raised in, but he still attends this same Catholic church and we both attended Colgan HighSchool.

Judge Wachter states on page 65 of the court transcript, "when you get my age, and YOt,JRDAD'S

age" ...my father coached AJ. Wachter in basketball and I played football with his brothel'. I quit going to

that particular Catholic church and have since formed my own spiritual relationship with GOD. JudgeWachter should never have been the presiding judge during my case since I have a lien against his

property and this is a violation of RULE2.3 Bias, Prejudice, and Harassment.

Judge Wachter also violated RULE2.2, which is Impartiality and Fairness, as he was prejudiced against

me for putting a lien against his property.

On page 63, Judge Wachter says, "You know what though, one of the first times that I became

ACQUAINTED with you as a person in Court, you filed a multi-billion dollar lien or something against-

yeah, well, you are laughing about it but and then Noland recuses, for what reason I don't know and

they sent it over to me. I'm not going to give you a hearing on that, YOU ARE NUTSDOI~G THAT." This

type of behavior by Judge Wachter is a violation of RULE1.2, Promoting Confidence in to):? Judiciary andRULE2.8, Decorum, Demeanor, and Communication with Jurors (B) and RULE2.10, Judicial Statements

on Pending and Impending Cases. It is also a violation of RULE2.9(C), which states a judge shall not

investigate facts in a matter independently. Judge Wachter should not be commenting on any lawsuit Ifiled against Don Noland as that is another case. By calling me names and telling me I ~m NUTS, Judge

Wachter violated RULE2.5, Competence, Diligence, and Cooperation(2) by givlng.mea demeaningnickname which is not allowed.

Judge Wachter also states at the bottom of page 63, "you've had a little bit of a history of erratic

behavior in the PAST./I Judge Wachter is biased against me and once again, that is a ~iolation of RULE

2.3. Judge Wachter should have never heard my case because of our past relationship and he should

have disqualified himself according RULE2.11 Disqualification.

On page 27 of the court transcript, Judge Wachter states, "I'm not going to let you ask questions thatare inappropriate and take us until 9;00 at night." This is a violation of GENERALPRINCIPLESAND

GUIDELINES FORTHE DISTRICTCOURTS letter (D) Under Simple and Efficient Rules of Procedure (3)

which states, "The ultimate judicial goal should be JUSTICE,not SPEED, in the disposition of cases."

Judge Wachter also says at the bottom of page 27, "that is the rules of the game okay7-" It disappoints

me greatly to stand before a man who is determining my parenting time with my children who clearly

stated this is just a game to him. This is my life, my children's life, and I was under the impression we

were in a court of law with rules, not playing the BOARDGAME of LIFE.

On page 30, Judge Wachter admits 01'1line 6 that he is ignorant when he says "We are all ignorant solet's go on". Well, this is a violation of RULE2.5 Competence, Diligence and Cooperation (A) which says

a judge shall perform judicial and administrative duties competently and diligently. If judge Wachter

admits he is ignorant, then obviously he is not competent to hear my case. It also is a violation of RULE

2.3(2) to, once again, using a demeaning nickname by calling me "ignorant".

On page 32, Judge Wachter states, "I'm letting you ask the questions I think are apprQ-W'iate only,

period, end of story". This is a violation of RULE2.6, Ensuring the Right to Be Heard. ~,as and still am

very offended from that statement made by Judge Wachter. Everyone has a differentthought on what

is appropriate and what is not appropriate and it should depend on the situation, not one man's

personal thoughts and opinions.

I have saved the worst thing Judge Wachter did during this court case for last. On pag~~6 of the

transcript, line 22, Judge Wachter looked me in the eye with an angry look and said "Ym-lf0ing to get a

little rougher on you now'. I could not believe my ears, I am a country boy and where I come from that

means there is about to be a fight. At this point, I obviously know this man is totally biased against me

so I tried to say nothing further so I would not get arrested for contempt of court. I am scared to go infront of Judge Wachter. Judge Wachter was a good athlete in high school, he is a tall ma.,nof

approximately 6 feet and is substantially taller and weighs quite a bit more than ~do. -Inave never seenI

him fight, but I heard he was a pretty tough guy back then and as the story goes, you wouldn't want to

fight AJ. Wacther. I went home and I looked up the definition of "Rougher" and have included it.

Definition 4: acting with or characterized by violence, 5: characterized by unnecessary violence orinfractions of rules, 9: sharp or harsh, 10: unmannerly or rude, 12: difficult or unpleasant, and last, but

certainly not least, Definition 30: TO GIVE A BEATING TO, MANHANDLE, OR SlJ8JECTTO!PHYSICAL

VIOLENCE. The statement made on page 36 of the transcript, Iine22 ALONE violates 'RULE1.1 as this is a

threat, RULE 1.2, RULE2.2, RULE2.3, RULE2.4(B), RULE2.5, RULE2.8, and Rule 2.12 Comment (1) which

says "A judge is responsible for HIS or HEROWN CONDUCT and for the CONDUCT of others".

Sincerely,

.Iames-Donald: Russian, sui juris, a Sovereign Living Soul

Telephone 785-296-2913

ME,MBERSOF,PANEL A

CHAIR:William B. SwearerLawyer Member'

VICE-CHAIR:Carolyn TillotsonLay Member

Nancy S. AnstaettLawyer Member

J. Patrick BrazilJudge Member

Theodore B. IceJudge Member

Jennifer L. JonesJudge Member

Christina PannbackerLay Member

SECRETARY:Carol G. GreenKansas Judicial Center301 S.W. Tenth AvenueTopeka, KS 666 J 2- J 507

~tate of }kansas

Q[:ommission on 3Jubicial @ualificatiollSKansas Judici~I..center301 S.w. Tenth AvenueTopeka, Kansas 66612-1507

Facsimile 785-296-1028

June 7, 2011

Julie Stover303 S. JeffersonStreetFrontenac, Kansas 66763

Re: Docket No. 1115, In the Matter of A. J. Wachter

Dear Ms. Stover:

The Commission met June 3, 2011, at which time the above-captioned complaintwas considered.

Judge Wachter acknowledged and expressed regret for his use of the term"peanut gallery." It was the consensus of the Commission that the judge's use of thatterm was inappropriate, and it was the decision of the Commission to caution JudgeWachter regarding future word choices.

It was further the decision of the Commission that the remainmg allegationscontained in your complaint contained no facts evidencing judicial misconduct as definedin the Code of Judicial Conduct. . .

Thank you for bringing your concerns to the attention of the Commission. Thismatter is now closed.

Sincerely,

William B. Swearer,Chair

mm

EXAMPLES OF CONDUCTFOUND TO BE IMPROPER '

A judge was found to have violated Rule 2.5(A) by failing to rule on a motion forappointment of counsel for approximately one year. The judge was cautioned regardingthe importance of disposing of issues promptly and efficiently. The departmental justiceand chief judge were advised of the Commission's concern regarding delay.

A judge was found to have violated Rules 1.2 and 1.3 by throwing a cell phone notbelonging to the judge into the street and/or attempting to use the judge's position to gaindeferential treatment to prevent the filing of charges. The judge was privately ordered tocease and desist from activities which lead to impropriety and the inappro .ate us theprestige of judicial office. r e t>. 1'\ uk

~1.\\\

Date: 7/22/2015Time: 01 :26 PM

Page 1 of 2

Crawford County District Court (Pittsburg)ROA Renf"\rt---~

Case: 2013-DM-0~0308-P ~ /(CU~JUdge: AJ Wachter

James Donald Russian, R nTimothy Kundiger, et ai, Petitioner vs.

Date

User: KV

(Dt! (lJc-A- 0 {-~ tIl'trf"es+-

Protection from Stalking

12/18/2013

12/20/2013

1116/2014

1/22/2014

1/24/2014

1/2712014

2/5/2014

2/13/2014

Petition FiledDocument 10 Number: 224782 \

General Information Sheet V! ,\\~t-~o flDocument 10 Number: 224783 f

Date: 7/22/2015Time: 01 :26 PM

Page 2 of 2

Crawford County District Court (Pittsburg)ROA Report

Case: 2013-DM-000308-P

Current Judge: A J WachterTimothy Kundiger, et ai, Petitioner VS. James Donald Russian, Respondent

Date \ Judge

3/13/2014 Email Sent Date: 03/13/2014'03.15 pili Tcr:-el'lafa araoharo.com File A J WachterAttached: FINALORDEROFPROTECTIONFROMSTALKING.pdf Name ofDocument: Final Order of Protection from Stalking

User: KV

~'( /"~D3~ f\r;-+~~..J ~ ~e~vAJ Ucl.) r.;Jo..uV /-j:vV\ l

---

, am making this ethic complaint with the Kansas Commission on Judicial Qualifications ~n Honorable

Frederick Smith of Crawford County, Kansas for the following rules he possibly violated VlJiththe KANSAS

CODE OF JUDICIAL CONDUCT RULE601B in case number Cll000400 on June 8, 2011. I filed a motion for

a continuance on April 26, 2011 and received half of what I requested. In my motion for a continuance

"that I have enclosed", I informed Honorable Smith on statement 6 that I had filed an ethics complaint

against Judge Wachter and Judge Noland who are both work colleagues of his and have ~een for over 20

years and I did not feel comfortable with him hearing my case.

On statement 8, I informed him of RULE2.11 DISQUALIFICATION, according to KANSASCODEOF

JUDICIAL CONDUCT and K.S.A. 20-311D. In my closing statement, I asked for a new court date and a

new unbiased judge. I received a new court date on June 8, 2011, but I was surprised when I showed up

and Honorable Frederick Smith was still the judge. Honorable Frederick Smith failed to rfcuse himself

from this case and I feel he violated RULE2.11 of the KANSASCODEOF JUDICIAL CONDt1~. I do not feel

comfortable in front of any judge in Crawford County, Kansas and I am afraid to speak in court or I will

be charged with contempt.

I feel Honorable Frederick Smith violated RULE 1.1 and RULE 1.2 of the KANSASCODEOF,JUDICIAL

CONDUCT as he is not avoiding impropriety in this case number and he is not showing impartiality. I feel

he has violated RULE2.2 of the KANSASCODEOF JUDICIAL CONDUCT as he was not showing impartiality

and fairness towards me because I had filed ethic complaints on two of his work colleagues. I did not

bring this up in my MOTION FORCONTINUANCE because I thought that my ethic complaints on his work

colleagues would have been a big enough conflict of interest that I did not feel I had te bring up mypersonal relationship with Frederick Smith. However, I feel Honorable Smith violatedR:/JLE 2.3 of the

KANSASCODEOF JUDICIAL CONDUCT as he has been biased and prejudiced against me for an incident

that happened approximately 20 years ago. I was getting my hair cut at Kristy's Beauty Corner over by

Pittsburg State University and Honorable Frederick Smith's wife was in there getting her hair cut. Shewas informing the hairstylist and whoever else would listen in the shop as she was pretty angry about

this incident she was speaking about. She went on to inform us that her husband, Honorable Frederick

Smith, was a cheater and that he was having an affair with his secretary at the time, Mrs. Bozich. I knew

of Mrs. Bozich's husband, John Bozich, and was very shocked to hear this information. I was not friends

with Mr. Bozich but I was friends with a co-worker of his, Michael White, as we both went to theCatholic Church together for years. I knew that both, Mr. Bozich and Michael White, wojked at the

Residential Center for Youth for years and then went on to work together at KAW VaUey., I informed Mr.White what I had heard and of course hiewent on to tell John Bozich about the so-called affair between

Honorable Frederick Smith and Mrs. Bozich. Mr. and Mrs. Bozich got a divorce and I feel that HonorableRick Smith has been mad at me ever since I let this information out that Honorable Smith's wife had

revealed that day in Kristy's Beauty Corner. This is another reason that Honorable Frederick Smith

should never have heard my case.

I also feel he violated RULE2.6 of the KANSASCODEOF JUDICIAL CONDUCT Ensuring the Right to be ~

Heard, because when I spoke, Honorable Smith said, "MR. RUSSIAN,YOU BETIER SHUT YOUR MOUTH 71CNOW!!!!! OR YOU WILL GO TO JAIL FORCONTEMPT OF COURT!!!!!!" I feel that telling a person to shut

their mouth and threaten them with jail is no way to treat anybody, let alone a party to a lawsuit in a

courtroom where you are supposed to be made to feel at ease with confidence. I am t~ scared toproperly present my case for fear of arrest. I feel Honorable Smith violated RUlE2.-8by~ot being

courteous to me. I feel Honorable John Gariglietti should have re-assigned this case to another judge

from another county and he did not so I think he is responsible for this mistake as well. For this reason, I

am also filing a complaint on Honorable John Gariglietti, for violating RULE 1.1 and 1.2 of the KANSAS

CODE OF JUDICIAL CONDUCT as I have no confidence in the judges of Crawford County ~~ be fair to me.

I feel that Honorable John Gariglietti violated RULESOF THE ELEVENTHJUDICIAL 91STRICTSTATEOF

KANSASRULENO.2 on Assignment of Cases. This case should have been re-assigned like Chief JusticeLawton Nuss has done in the past by assigning Retired Judge Janice Russell to cases that are conflicts of

interests.

I would now like to file a complaint stemming from Vera Pepper vs. Edward Battitorl's.ease on June 9,2011 in case number llSC57P that I attended with Vera to support her as she is aJriern;! of mine.

Before court started at 9:00 AM, I heard Pro Temp Judge Rick Smith telling the Defendant, Edward

Battitori, also an attorney in Pittsburg, Kansas, in case number llSC57P, that Eddie should have a seat

and Judge Smith would call his case fast. Pro Temp Judge Rick Smith then called this case first that day

so his friend lithe Defendant, Eddie Battitori", could leave and not have to wait his tur~. This is aviolation of EXPARTERULE2.9 of the KANSASCODEOF JUDICIAL CONDUCT ashe made this statement

before court without consent of Vera Pepper, who is the other party. I feel this is also a violation of

K.S.A. 60-104 Acts by Court of Judge which says "that no hearing, other than one ex parte, shall be

conducted outside the district without the consent of all parties affected thereby who are not in

default". He also violated K.S.A. 61-2707 (a) Appearance by Others in a Representative ~apacity by not

allowing Vera Pepper to have me, James Donald Russian, appear in a representattve capacitv which thecode allows since I am not an attorney. He called Vera's case number first because he is friends with

Edward Battitori and that is why he called his case first and had an EXPARTEconversation with him to

save him time. Honorable Rick Smith does not have those same conversations with everyone else whois a party in small claims court and I feel this is a violation of RULE2.3 of the KANSASCOqE OF JUDICIALCONDUCT by being biased and prejudice. He did disqualify himself under rule2.11ofth~ KANSASCODEOF JUDICIAL CONDUCT for a conflict of interest and I do commend him for that. This is how I feel he

should have handled case number C11000400 and should have disqualified himself from that case. He

also made a ruling in case number llSC61P involving ({JOEPAGE" to have a power of attorney, but

Judge Janice Russell did not allow Michael L. King in case number llSC33P to have a ~OWER OF

ATTORNEYwhen I was made aware of that case number. I do not understandwhvone rule can bebroken by one judge and one party is allowed something where another party in another case is notallowed the same respect. Is it a "ALL IN WHO YOU KNOW" situation down here in Crawford County,Kansas?

It seems the only time you can have a POWER OF ATTORNEY or a representative in.acr:~rdance with

K.S.A. 61-2707 la) in Crawford County Court is if you are possibly a millionaire businessman like JOEPAGEwas in Pittsburg, Kansas for over 20 years. It is VERY,VERYpossible that every judge in Crawford

County, Kansas has at least done business with JOE PAGEas he owned a trash service in town amongst

other types of businesses. I have enclosed an order from case number 11SC33P where Judge Janice

Russell says that The court denies Mr. King's motion to allow his son to act as his spokesperson in courteven though is son is his Power of Attorney. Then in case number llSC61P, withJGf ~E, he isallowed to have a power of attorney or representative speak for him and Joe Page1)10NOT EVENSHOW

UP! I am making this complaint so that I can understand the rules of SMALL CLAIMS court so that I

don't get a contempt of court. I am scared to even speak in the courtroom as I look up codes and one

judge, Judge Janice Russell, rules one way on a representative and then another judge.Pro Temp Rick

Smith, rules the complete opposite.

There is no way that both judges can be right on this ruling. Either Janice Russell is wrong or Rick Smith

is wrong and I would like to find out as soon as possible on the statute K.S.A. 61-2707 (a). Can you have

a representative that is not an attorney sit with you in small claims court or not? Can you have a power

of attorney speak for you in small claims court or any court for that matter and the party not even have

to show up? These are questions that need to be answered to avoid public citizens-goinQ to jail for an

UNNECCESSARYcontempt of court charge.

Sincerely,

James Donald Russian

EXAMPLES OF CONDUCT FOUND TO BE PIlO~EROR OUTSIDE THE COMMISSION'S JURISDICTIQN

No violation was found when it was alleged a district judge denied a defendant the rightto a jury trial on an appeal from misdemeanor convictions following a trial to amagistrate judge. The judge acted in accordance with K.S.A. 22-3609a and 22-3404.

No violation was found when it was alleged a judge made inappropriate personalcomments to a defendant by telling the defendant to shut tJP. The transcript of theproceeding did not reflect the statement. ""'S~y/\ 'Ie 15 CDrl'pl "'~11.+ 0 VI fr.~ y.~(l' fl\ ,',t-V'No violation was found when it was alleged a judge ordered the complain~t be removedfrom a CINe temporary custody hearing. While the judge admitted thec0l!tplainant wasasked to leave the courtroom, it was because interested party :status -had not beenrequested or granted and the attorneys also requested removal. The removal from thecourthouse was due to disruptive and disorderly behavior.

No violation was found when it was alleged a judge failed to recuse due ~ a conflict ofinterest. A hearing was held on the motion to recuse, and the party ~ advised thematter could be further addressed with the chief judge.

No violation was found when it was alleged a judge exhibited racism toward a defendantand/or defendant's homeland with regard to decisions. The defendant was represented bycounsel, and court pleadings did not reflect any violation. There were no;witnesses tosupport the allegations.

No violation was found when it was alleged a judge exhibited disruptive behavior bycontinually interrupting and yelling at a defendant and telling the defendant to hurry upso the judge could go home. While the judge admitted to being stem to maintain controlof the courtroom, the judge denied exhibiting disruptive behavior. Witnesjes confirmedthe judge acted appropriately.

No violation was found when it was alleged a judge inappropriately held court at acorrectional facility. Authority does exist to hold hearings at a correctional facilitypursuant to K.S.A. 20-347.

2011 Annual Report t',_ 21

--s-~ ~e3 ~J~

Honorable Noland has allowed this case to float in the system to long and has not taken.control of the

court calendar since Information was first filed on March 2, 2011 and has not oaidattentlon to the (180)

calendar days for me to go to trial by October 7, 2011. According to letter (E) under Justice is effective

says that Older cases should be emphasized and ordinarily given priority in trial settings .

.-t, This case has been on the docket for approximately 300 days and should be dlsralssed, and JudgeNoland is not giving this case priority even though it has been on the docket since ~arch 2, 2011.

r feel that with all the issues r raised that Honorable Noland has now violated THE KANSASCODEOF

JUDICIAL CONDUCT.

I feel that he violated RULE1.2(5) appearance of Impartiality, as I have made an ethic c~plaint against

Honorable Noland in the past and I feel that he can not be impartial in this case. lieeltb~t he can notlisten to this case and be Impartial and Fair in accordance with RULE2.2. I also feel now that I have

made an ethic complaint against him in the past that he is biased against me according to RULE2.3 and

he should disqualify himself from hearing this case in accordance with RULE2.11. I feel he also could

have violated RULE2.4(6) as he is allowing other interests, which I feel is his biased ag~inst me as why>.

this case has not already been dismissed.

r feel that Honorable Noland has also violated RULE2.5 as he has not taken control of this case and has

not gotten this case to trial within the 180 days that K.5.A. 22-3402 states should be done. I therefore

feel that he has shown he is not following court rules and procedures and has shown he is not

competent according to RULE2.5.

j And last but not least my attorney Katherine Cerne wrote a letter on A~ril 6, 2011 for Honorable Nolandto disqualify himself in accordance with K.S.A. 20-311d and he has still not made a decision. My

attorney shows Via Facsimile to 620-724-4987 which is the courts number. I received my letter in the

mail to Judge Noland to disqualify himself with a Request for Jury Trial Out of Time attached. I went and

got a copy of the court docket on January 3, 2012 and noticed on April 6, 2011 that the clprk of the courthad only filed the 2nd page which was the "Request for Jury Trial Out of Time". I think that the clerk of

the court made a mistake by not getting the full document filed in the case and did not follow K.S.A. 60-

2601(d). I noticed this on January 3,2012 so I took my copy and had the letter to Honorable Noland to

disqualify himself stamped with the court on January 3, 2012. Even though the clerk oftt'e court did not

get this filed like she should have on April 6, 2011, the court still received this asmv att~ney faxed it tothe court. Judge Noland has never given the hearing my attorney requested. I feet since Honorable

Noland has waited this long to make a decision to disqualify himself and this court case has went over

the 180 days to get a defendant to trial, I now feel he violated RULE2.11 because he still has not

disqualified himself even though there are numerous conflicts of interests and he is ~ed against me.

After reading the pamphlet on COMMISSION ON JUDICIAL QUAUFICATrONS,lfeeltnat ~he Commission

should take the following action by issuing a cease and desist order to Honorable Noland on this case,

since he seems to be determined to hear this case even though there is a conflict of interest.

James Russian

EXAMPLES OF CONDUCTFOUND TO BE IMPROPER

Several judges were found to have violated Rule 1.3 by providing a statement ofendorsement which appeared in an annual report of an organization that provides medicaland behavioral healthcare, social services, and education to children and families. Whilethe judges did not give permission for their statements to appear in the ann~l report, thejudges were cautioned to be mindful and vigilant in the future to avoid statements thatmay be used in unintended ways to advance the interests of others.

A judge was found to have violated Rule 2.5(A) by failing to enforce a court order whichresulted in several months' delay in settling an estate. The judge was privat~ly ordered tocease and desist from dilatory practices which result in unnecessary delay,

A judge was found to have violated Rule 1.2 by making an inappropriate joke whileappearing on a radio program. The judge was cautioned about future word choices andthe importance of public perception.

A judge was found to have violated Rule 2.9(A) by participating in ex partecommunications regarding child visitation and Rules 1.1 and 1.2 by threatening to have alitigant arrested. The judge was cautioned regarding ex parte communications and forthreatening the litigant with arrest without a legal basis.

A judge was found to have violated Rule 1.2, the appearance of impwpriety, afteradmitting a romantic relationship with a court employee. In cautioning il?-ejudge, theCommission emphasized the importance of maintaining a professional relationship at theoffice and the need to consider the public's perception of a judge's personal relationshipwith an employee.

i1~'C-:~ A judge, who was found to have violated Rule 2.5(A) by failing to rule o~a motion for~ v "T: \..approximately 10 months, was cautioned regarding delay. i

Q. ~ti~"" . .'

--ju' 0) A judge, who made inappropriate comments which offended a litigant during a physicalabuse hearing, was found to have violated Rule 2.8(B). The comments were reflected inthe transcript, and the judge was cautioned regarding word choices.

A judge was found to have violated Rules 1.3 and 4.1(B)(2) by endorsing a politicalcandidate for office on the candidate's Facebook page by "liking" a comment. The judgewas privately ordered to cease and desist from publicly endorsing a candidate for anypublic office.

24 .',- 2012 Annual Report

Telephone 785-296-2913

CHAIR:David J. KingJudge Member

VICE-CHAIR:William B. SwearerLawyet Member

Nancy S. AnstaettLawyer Member

J. Patrick BrazilJudge Member

Bruce BuchananLay Member

Dr. Mary Davidson CohenLay Member

RobertJ. FlemingJudge Member

Theodore B. IceJudge Member

Jennifer L. JonesJudge Member

Jeffery A. MasonLawyer Member

Christina PannbackerLay Member

Mikel L. StoutLawyer Member

Carolyn TillotsonLay Member

Thomas L. ToepferJudge Member .

SECRETARY:Carol G. GreenKansas Judicial Center301 S.W. Tenth AvenueTopeka, KS 66612-1507

QCommission on jJutnnal ~ualifitationsKansas Judicial Center301 S.W. Tenth AvenueTopeka, Kansas 66612-1507

Facsimile 785-296-1028

January 13,2012

James Donald Russian503 West KansasPittsburg, Kansas 66762

Re: Your complaint against District Judge Donald R. Noland

Dear Mr. Russian:

The above-captioned complaint will be referred to the Commission and will beplaced on the Commission's March 2, 2012, meeting agenda.

Cordially,

~n8'~Secretary

mm

I), .

Date: 7/22/2015

Time: 01 :27 PM

Page 2 of 3

Crawford County District Court (Girard)

ROA Report

Case: 2011-CR-000093-G Current Judge: Lori A Bolton Fleming

Defendant: Russian, James DonaldJames Donald Russian

User: KV

State of Kansas vs.

Date

Misdemeanor

Judge

4/12/2011 Donald R Noland

7/13/2011

8/112011

8/2/2011

1/3/2012

1/6/2012

2/6/2012

2/7/2012

2/27/2012

3/26/2012

4/312012

5/2/2012

" 5/22/20125/23/2012

5/24/2012

5/31/2012

6/112012

+ 6/7/2012

Letter from the Def re: case.Document 10 number: 76288

Letter from Defendant RE: caseDocument 10 number: 82727

Subpoena Issued to Holly Engelbrecht-Russian (back to CA's office for out Donald R Nolandof state service), Benne Phipps, Jeremy Allen and Bob Arnall

Subpoena Return: Bob Arnall- office-8/1/11, Benne Phipps-office-8/1111,Jeremy Allen-office-8/1/11Document 10 number: 84322

Endorsement of Additional WitnessesDocument 10 number: 84486

Ltr - copy of letter addressed to Judge Noland from Cerne brought in bydef to be added to his fileDocument 10 number: 94532

Notice of Hearing prepared by CA's officeDocument 10 number: 94533

Hearing Rescheduled (First Appearance 02/13/2012 09:00 AM) diversion Donald R Nolandnot returned

Notice of HearingDocument 10 number: 97052

Hearing Rescheduled (First Appearance 03/26/201209:00 AM) Notefrom CA says: Per Tresa Noyes. Mr. Mr Russian is currently working outof town & probably didn't receive his Notice of Hearing. She said he hasalways been cooperative on Bond Supervision & recomends we proceedwi a Summons instead of a Warrant.

Summons Issued to CRCOSO

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Summons Return: James Donald Russian - no contactDocument 10 number: 100009

Hearing Scheduled (First Appearance 05/14/201209:00 AM)

Summons Issued to CRCOSO

Summons Returned/No Service - no contact 5/1/12Document 10 number: 102763

Judge: Retired (batch process)

Affidavit for Bench Warrant

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Lori A Bolton Fleming-?( Document sealed kFailure to Appear Defendant:Bench Warrant Issued Bond amount: .00

Russian, James DonaldDocument 10 number: 104375

Cancelled Warrant ReportDocument 10 number: 104662

Bench Warrant ServedlReturned Failure to Appear Defendant: Russian, Lori A Bolton FlemingJames DonaldDocument 10 number: 104766

Diversion Agreement Lori A Bolton FlemingDocument 10 number: 105145

Lori A Bolton Fleming


Date: 7/22/2015Time: 01 :27 PM

Page 1 of 3

Crawford County District Court (Girard)ROA Report


Defendant: Russian, James DonaldJames Donald RussianState of Kansas vs.

Date

Misdemeanor

Judge

3/2/2011 Donald R Noland

3/3/2011

3/4/2011

3/11/2011

3/14/2011

3/29/2011

3/31/2011

4/412011

4/6/2011

4/7/2011

InformationDocument ID number: 72788

Factual AffidavitDocument sealed

Arrest Warrant Issued Bond amount: .00 Defendant: Russian, JamesDonaldDocument ID number: 72789

Arrest Warrant Served/Returned Defendant: Russian, James Donald

Notice of Hearing-Cerne-packet mailed to her officeDocument ID number: 73091

Commitment to county jail- $2000 CashlSurety bondDocument ID number: 73092

Order for Bond SupervisionDocument ID number: 73093

Cancelled Warrant ReportDocument ID number: 73094

Bond received - $2000 (Girard)Document ID number: 73095

Warrant ReturnedDocument ID number: 73096

Subpoena Issued to Bob Arnall

Subpoena Issued to Holly Engelbrecht-Russian (back to CA's office for outof state service), Benne Phipps, Jeremy Allen and Bob Arnall

Subpoena Return: Lt Bob Arnall- office-3/4/11Document ID number: 73888

Subpoena Return: Bob Arnall- office-3/4/11, Jeremy Allen- office-31114/11,Benne Phipps-offic3e-3/14/11Document ID number: 73889

Subpoena Return: Holly A. Engelbrecht-Russian-cert- 3/15/11Document ID number: 75070

Letter from Defendant RE: About AttorneyDocument ID number: 75528

Motion for ContinuanceDocument ID number: 75529

Letter from Judge RE: defs letterDocument ID number: 75530Request for Jury Trial Out of TimeDocument ID number: 75802

Notice of HearingDocument ID number: 75897

Notice of Rule #354- ctr/mot-digital recorder on 4/7/11Document ID number: 75898

Memo to Pam Re: Jury TrialDocument ID number: 75899

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

Donald R Noland

'11. SEP 16 1\8 :29IN THE DISTRICT COURT OF CRAWFORD COUNTY, KANSAS

STATE OF KANSAS,PLAINTIFF

)))) CASE NO. 2011-CR-000093- G)))

, '-RK Of OI:;,'\P.ICT COUt,~,l\RA'fIFORD COUHT't'

:.~"y . ----- .... --.--- .

VS.

JAMES DONALD RUSSIAN,DEFENDANT

ORDER TO DISMISS

NOW, on this k day of ~ , 2013, the aboveentitled matter comes before the Court on the Motion to Dismiss filed herein by the State

of Kansas.

The Court, being fully advised, finds that the above-entitled matter should be and

hereby is dismissed with prejudice, as Defendant has complied with terms of his

Diversion Agreement.

JUDGE OF THE DISTRICT COURT

Date: 7/22/2015

Time: 01 :27 PM

Page 3 of 3

State of Kansas vs.

Date

Crawford County District Court (Girard)ROA Report


Defendant: Russian, James DonaldJames Donald Russian

User: KV

Misdemeanor

Judge

9/13/2013 Lori A Bolton Fleming

9/16/2013

Motion to DismissDocument ID number: 137284

Order to DismissDocument ID number: 137285


STATE OF KANSAS,

Fll..:n'"rrV

'12 JJN-7IN THE DISTRlCT COURT OF eRA WFORD COUNTY, KANSAS AlJ .'57

cCRI( OF DI'": tr.,

A.WFDlTO' tIler too ~___.. . COU/fry fI,'-.

Plaintiff,

VS. Case No: 2011CR-000093G

JAMES DONALD RUSSfAN,

Defendant.

DIVERSIONARY AGREEMENT - PRETRIAL RELEASE ANDGENERAL CONTINUANCE ORDER

NOW on this ~ day of ~ , 201 ~the defendant appears in person and

by ltislher attorney, Kathleen M Cerne. The State appears by Reina J Probert Assistant County

Attorney. The matter comes on before the Court on the joint agreement of diversion of prosecution

and continuance for approval by the Court.

The Court, being fully advised in the premises, finds that the defendant was charged on the 18th

day of February, 201 I, with Violation of a protection from stalking order, a class A person

misdemeanor, contrary to KS.A. 21-3843 (a) (6) and these charges remain in full force and effect.

Defendant agrees as follows:

1. To pay the following fees within 90 DAYS of the date of signing this Agreement, to-wit:

a. Court Costs:b. Fine:c. Diversion Fee:d. Other:

$160.00$

s$

TOTAL: $]60.00

THE TOTAL OF $160.00 SHALL BE PAID TO THE CLERK OF THE DISTRICTCOURT LOCATED AT GIRARD DISTRICT COURT, P.O. BOX 69, GIRARD, KANSAS66743.

2. To not violate any federal, state or local law for a period of 12 MONTHS from the date ofsigning this agreement.

DEFENDANT SHALL HAVE NO CONTACT, EITHER DIRECTLY OR INDIRECTLYWITa HOLLY ENGELBRECHT-RUSSIAN.

3. That the following facts are true and correct and the defendant is stipulating to these facts:

That on or about 18th day of February, 2011, in Crawford County, Kansas, James

Donald Russian, then and there being did unlawfully and knowingly or intentionally violate a

protection from stalking order issued pursuant to K.S.A. 2004 Supp. 60-31a05 or 60-31a06,

and amendments thereto, in Crawford County Case No. 2011-DM-43P, in violation of KS.A.

21-3843(a)(6), Violation of a protection from stalking order, a class A person misdemeanor.

4. To waive all hislher rights to a speedy trial under the laws and statutes of the State of Kansasand under the constitutions of the State of Kansas and the United States, and further waives his/herrights to a speedy arraignment, preliminary examinations, to a trial by jury, and hislher rights againstself incrimination under the constitutions of the United States and the State of Kansas and the lawsand statutes of the State of Kansas.

5. That under the Constitution of the United States and of the State of Kansas, the defendanthas the right to be represented by a lawyer at all critical stages, before trial, at trial itself, and duringproceedings to determine what sentence should be imposed if he/she is found guilty. The defendantunderstands that if he/she is unable to obtain the services of a lawyer without incurring substantialhardship to themselves or to their family, one will be furnished for him/her. Court may orderattorney fees if appropriate and the defendant is financially capable of so paying.

6. That if the State files a motion to revoke diversion due to the defendant's failure to complywith any of the provisions of this diversion agreement, including but not limited to failure to payfees, and the criminal proceedings on the complaint are resumed, the defendant agrees andacknowledges that the proceedings, including any proceedings on appeal, shall be conducted on therecord based on the stipulation of facts relating to the complaint, and the defendant will be unable topresent any defense as to the underlying offense and stipulation of facts. The State, however, maypresent additional facts necessary to establish a factual basis if required by the Court withoutobjection by the defendant.

2

C. State agrees as follows:

Upon successful completion of this diversion to dismiss the underlying complaint withprejudice.

The defendant acknowledges that he/she has read and reviewed the above diversion agreement,including the waiver of rights and stipulations. The defendant further acknowledges that he/sheunderstands this diversion agreement and will comply with its terms.

D. The Court further finds that:

1. The defendant has voluntarily waived his/her right to a speedy trial with advice of counsel.

2. The defendant understands that the State must prove him guilty beyond a reasonable doubt and

that he/she has a right to a trial.

3. The defendant understands that during the period of diversion of prosecution, the charges

pending against him will remain in full force and effect and that the said matter may be set for trial

prior to the end of diversion period if this diversionary agreement is terminated before successful

completion.

4. That upon successful completion of the diversion period, the complaint will be dismissed with

prejudice by the State of Kansas.

IT IS THEREFORE BY THE COURT ORDERED that said defendant be and is hereby

released pending trial or disposition for a period of twelve months, conditioned upon the successful

completion of the diversionary program and upon the following conditions, to-wit:

1. That he/she refrain from violating any ofthe laws of the United States or of any state.

2. That he/she report to this Court, the County Attorney's Office, or any other person at any

time that he/she may be ordered to do so by the Court or anyone so designated by the Court.

3. That he/she pay the associated costs as enumerated above during the allotted time.

The Court or the State of Kansas hereby reserves the right to terminate this agreement at any time

prior to the successful completion of all the terms of this diversion agreement and dismissal of the3

case herein, if the defendant fails to fulfill any of the terms of this agreement or demands that this

case be set for trial.

Approved:

DiS~~=r"",-- -

Kathleen M Cerne, #15572Attorney for the Defendant1001 NBroadway Suite BPittsburg, KS 66762

I, James Donald Russian, the above-named defendant, have read the above order and knowthe contents thereof and I hereby agree to comply with the conditions as set forth herein.

Subscribed and sworn to before me by James Donald Russian this 3\ day of ~2011-

~\. o:-e. eJ...~ . \' C\ f\Cj

C

4

March :J 6 I A

Kathleen Cerne

1001 N Broadway

Pittsburg, Ks66762

Dear Attorney Cerne:

I am writing to you because I have not heard anything back from you in regards to. the letter I sent you

on December 20,2012. I never heard back if you filed a Motion to Dismiss for lack of presecution andpersons not-brought promptly to trial in accordance with i

May 6 ,2012 w h..'1 W rH) \0- he S} j v'1 ~ 1) 1J {> Y 5~0.1\ a.. {4--er 6 U e I'300 Ja.y5 '1 ~e )0tX.?~ '1l>+Cdiu'l-l~;'\("'J\ 1>j{e~ r~c\\

-rhe ()}t).-el') ~01' ,1'5 4-f-R AU t)-) ~ 411'lE'-& lie flJr'rA '" :s n >?'\e

Kathleen Cerne

1001 N. Broadway

Pittsburg, Ks 66762

Greetings Attorney Cerne:

I have been busy working out of town trying to make a living to be able to eat and pay my bills. I have to

report to Teresa Noyes until the case number of 2011CR93G has been dismissed. Ms. Noyes informed

me that she had heard that the county had not dismissed this case. She stated that-she heard the

county was trying to serve me and I told her I had been busy working. She asked me-if I had been in

contact with my attorney and I told her that Ihad sent you letters.

I am very disappointed that this case has been going on for over a year and still has not been dismissed.

The county is now starting to cause me financial and emotional damages because I still have to report toprobation and this is interfering with the wages I could make, by welding on the road and visitation withmy children. I have a rare trade skill that pays per diem and good wages on the road. However if Iamforced to be stuck around Pittsburg, Kansas this town does not pay anything close to what Ican makeover seas or in other states on the road.

Iwould like for you to request a hearing for attorney Michael Gayoso to recuse himseJf from prosecutingthis case. According to "KANSAS RULES OF PROFESSIONAL CONDUCT" Rule 1.9 CONFLICT OF INTERESTFORMER CLIENT, Rule 1.6 CONFIDENTIALITY OF INFORMATION, Rule 1.7 CONFLICTOF INTEREST:

GENERALRULE,and possibly Rule 1.8 CONFLICTOF INTERESTPROHIBITEDTRANSACTIONS I feel that Mr.

Gayoso should be disqualified from prosecuting this case.

Mr. Gayoso previously was an attorney for "Holly Engelbrecht" and she isthe witness in this case for

the state. She is my ex- wife and Mr. Gayoso was her divorce attorney during our divorce and she later

retained Mr. Battitori to represent her at a hearing that took away my visitation freedom with my

children. Mr. Battitori and Mr. Gayoso also were previously private law partners before Mr. Gayoso

became Crawford County Attorney. My good friend Vera Pepper sued Mr. Battitori in a S,mall Claims

Proceeding because Mr. Battitori did not do all that he had informed Ms. Pepper that he-would do for

what she paid him. I showed up at the case with Ms. Pepper and attempted to sit with her according to

K.S.A. 61-2707(a) but Honorable Rick Smith told me I was not allowed even though the Small Claims

Pamphlet says that "Indivlduals and Corporations may use non-attorney representatives".

I feel the reason this case has not been dismissed is because of Mr. Gayoso's prejudice against me for

the above reasons' stated. Please inform me if you will be filing a motion for Mr. Gayoso to recuse

.,.

himself for conflict of interest or if I need to proceed with filing my own complaint aga'rst Mr. Gayoso

with Stanton Hazlett of the "OFFICE OF THE DISCIPLINARYAOMISISTRATOR". lalsopJa" to sue the

county for civil damages if this case is not dismissed and I was wandering if you would 1ike to represent

me in a civil lawsuit against Crawford County if this case is not dismissed or if I will need to proceed Pro

Se for that.

I also wanted to let you know that if the county does not dismiss this case and we do I~ at trial that Ido want you to file an appeal. I would like you to file a post trial motion if!aC-OOT-danGe,w~thK.S.A. 22-3501 and if we lose that then I would like to appeal in accordance with K.SA 22-"3"601and K.S.A. 22-3602. I also would like for you to file a motion in accordance with K.S.A. 22-3418 View of Place of Crime.I feel once the jury sees the house that I stopped at then the case would be dismissed for sure and I can

get a little peace of mind.

The stress and anxiety that this is causing me for being held over my head forover-:a.year is almost

getting to much for me to handle. Please do all you can as my attorney to get this case dismissed. I also

would like for you to file this letter into the case docket and file everything else I have sent to you

previously in this case up to this point as well. If I have to appeal at a later date I would like everything

that has went on to be in the court docket for the appeal judges to be able to view. I waf also informedthat Honorable Noland retired at the end of March and I would like to know-whatjudgenas been

assigned this case.

Sincerely,

James Russian

Case 6:14-cr-10018-EFM Document 126 Filed 06/26/15 Page 1 of 2

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS

))))))

l ~\--------------~) 1

MOTION FOR JUDGMENT OF ACQUITTAL, OR /IN THE ALTERNATIVE, MOTION FOR NEW TR1AL~

UNITED STATES OF AMERICA,

vs. Case No. 14-10018-EFM

Plaintiff,

JAMES RUSSIAN,

Defendant.

COMES NOW the defendant, James Russian, by and through counsel, Douglas L.

Adams, Jr., and respectfully moves the Court, pursuant to Rule 29, renews the previous motion

made at the time of trial for judgment of acquittal, or in the alternative, pursuant to Rule 33,

moves the Court to grant a new trial. In support thereof, Defendant states:

1. The evidence was insufficient to justify a finding or verdict beyond a

reasonable doubt that defendant had committed the acts alleged in the indictment.

2. With regard to the basis for a new trial, the Court erred when it admitted the

evidence of marijuana and weapons and cell phone data found in the vehicle and residence

following pretrial motions which should have been sustained.

3. The Court further erred when it permitted the Rule 404(b) evidence of what

transpired prior to the chase on the back roads of Crawford County from the night before through

what happened just before law enforcement began to chase Mr. Russian in addition to the data

(text and pictures) taken from his phone( s). Because the crimes were for possession of firearm,

drug possession, and possession of a firearm in furtherance of a drug trafficking crimes, none of


the evidence from the prior incidents were necessary to prove the elements of the charged

offenses, and only provided background for why law enforcement gave chase, which was not

contested at trial. Even if it were relevant as res gestae, rule 404(b), or otherwise, the prejudicial

impact far outweighed the probative value. Without this evidence, it is clear that the

Government's case against Mr. Russian would have been substantially diminished, and the result

would likely have been different.

WHEREFORE, for all the foregoing reasons, James Russian, through counsel,

respectfully requests that this motion be granted and that the Court acquit Mr. Russian, or in the

alternative, grant a new trial without the previously discussed evidence of other crimes displayed

through the cell phone text conversations of James Russian, the pictures from Defendant's phone

showing what appeared to be marijuana and cash, the testimony ofT.P., and the testimony of

officers describing why they were chasing Mr. Russian based on the statements ofT.P. and A.L.

Respectfully submitted,

sl Douglas L. Adams, Jr.Douglas L. Adams, Jr., S. Ct. #16092200 North Broadway St., Suite 300Wichita, Kansas 67202(316) [email protected]

CERTIFICATE OF SERVICE

This is to certify that, on this 26th day of June, 2015, a copy of the foregoingMotion was sent via electronic filing system to the United States Attorney's Office.

sl Douglas L. Adams, Jr.Douglas L. Adams, Jr.Attorney for the Defendant

Case 6:14-cr-10018-EFM Document 126 Filed 06/26115 Page 1 of 2


Plaintiff,

))))))))))

Case No. 14-10018-EFM


vs.

JAMES RUSSIAN,

Defendant.

MOTION FOR JUDGMENT OF ACQUITTAL, ORIN THE ALTERNATIVE, MOTION FOR NEW TRIAL

COMES NOW the defendant, James Russian, by and through counsel, Douglas L.

Adams, Jr., and respectfully moves the Court, pursuant to Rule 29, renews the previous motion

made at the time of trial for judgment of acquittal, or in the alternative, pursuant to Rule 33,

moves the Court to grant a new trial. In support thereof, Defendant states:

1. The evidence was insufficient to justify a finding or verdict beyond a

reasonable doubt that defendant had committed the acts alleged in the indictment.

2. With regard to the basis for a new trial, the Court erred when it admitted the

evidence of marijuana and weapons and cell phone data found in the vehicle and residence

following pretrial motions which should have been sustained.

3. The Court further erred when it permitted the Rule 404(b) evidence of what

transpired prior to the chase on the back roads of Crawford County from the night before through

what happened just before law enforcement began to chase Mr. Russian in addition to the data

(text and pictures) taken from his phone(s). Because the crimes were for possession of firearm,

drug possession, and possession of a firearm in furtherance of a drug trafficking crimes, none of

Case 6:14-cr-10018-EFM Document 126 Filed 06/26115 Page 2 of 2

the evidence from the prior incidents were necessary to prove the elements of the charged

offenses, and only provided background for why law enforcement gave chase, which was not

contested at trial. Even if it were relevant as res gestae, rule 404(b), or otherwise, the prejudicial

impact far outweighed the probative value. Without this evidence, it is clear that the

Government's case against Mr. Russian would have been substantially diminished, and the result

would likely have been different.

WHEREFORE, for all the foregoing reasons, James Russian, through counsel,

respectfully requests that this motion be granted and that the Court acquit Mr. Russian, or in the

alternative, grant a new trial without the previously discussed evidence of other crimes displayed

through the cell phone text conversations of James Russian, the pictures from Defendant's phone

showing what appeared to be marijuana and cash, the testimony ofT.P., and the testimony of

officers describing why they were chasing Mr. Russian based on the statements ofT.P. and A.L.

Respectfully submitted,

sl Douglas L. Adams, Jr.Douglas L. Adams, Jr., S. Ct. #16092200 North Broadway St., Suite 300Wichita, Kansas 67202(316) [email protected]

CERTIFICATE OF SERVICE

This is to certify that, on this 26th day of June, 2015, a copy of the foregoingMotion was sent via electronic filing system to the United States Attorney's Office.

sl Douglas L. Adams, Jr.Douglas L. Adams, Jf.Attorney for the Defendant



Defendant.

Case No. 14-10018-01-EFM


Plaintiff,

vs.

JAMES D. RUSSIAN,

MEMORANDUM AND ORDER

A grand jury indicted Defendant James D. Russian on March 4,2014, on the following

four counts: (1) felon in possession ofa firearm in violation of 18 US.c. 922(g)(1); (2) felon

in possession of ammunition in violation of 18 U.S.c. 922(g)(1); (3) possession ofa firearm in

furtherance of a drug trafficking crime in violation of 18 US.c. 924(c)(1)(A); and (4)

possession with the intent to distribute a controlled substance in violation of 21 US.C.

841(a)(1). The matter was called for jury trial on June 15,2015. The jury returned a verdict of

guilty on all four counts. Defendant has now filed a Motion for Judgment of Acquittal, or in the

Alternative, Motion for a New Trial (Doc. 126).

A. Motion for Judgment ofAcquittal

Rule 29(c)(2) of the Federal Rules of Criminal Procedure states, in relevant part, that "[i]f

the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal."


When reviewing the sufficiency of evidence to sustain a guilty verdict, the Court "ask[ s],

whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' ,,1

Substantial evidence must support the conviction, but" 'it need not conclusively exclude every

other reasonable hypothesis and it need not negate all possibilities except guilt.,,,2 Furthermore,

the Court cannot cast aspersions on the credibility of witnesses or weigh conflicting evidence,

because "these matters are within the exclusive province of the jury.?'

Defendant asserts that the evidence at trial was insufficient to support a guilty verdict.

The Court disagrees. Viewing the evidence in the light most favorable to the Government, it is

not even a close call as to whether a rational trier of fact could have convicted Defendant on the

evidence presented. There was more than substantial evidence to support the convictions.

Therefore, Defendant's Motion for Judgment is Acquittal is denied.

B. Motion for New Trial

j:. A court may "grant a new trial if the interest of justice so requires."? A motion for a new~ ~trial is viewed with disfavor, and courts only grant such motions with great caution.' The burdenI United States v, Magallanez, 408 F.3d 672, 681 (10th Cir, 2005) (quoting Jackson v. Virginia, 443 U.S.

307,319 (1979)).

2 United States v. Vallejos, 421 F.3d 1119, 1122 (10th Cir. 2005) (quoting United States v. Johnson, 42F.3d l312, l319(lOthCir.1994.

3 Magal/anez, 408 F.3d at 682 ("The jury apparently believed the witnesses, and that is the end of thematter.").

4 Fed. R Crim, P. 33(a).

5 United States v. Pearson, 203 F.3d 1243, 1274 (10th Cir. 2000).

-2-


is on the defendant to prove the necessity of a new trial." "[T[he relevant rule is that a new trial

should be granted upon any error of sufficient magnitude to require reversal on appeal.?"

Defendant makes two arguments as to why a new trial should be granted. First, he

contends, without any elaboration, that the Court erred "when it admitted the evidence of

marijuana and weapons and cell phone data found in the vehicle and residence following pretrial

motions which should have been sustained.',g The Court denied Defendant's motions to suppress

and set forth its reasoning in a detailed Memorandum and Order filed April 23, 2015. Defendant

has not alleged any inconsistencies in the facts or any new facts that were not present before the

Court at the suppression hearing. He also has not set forth any change in the relevant case law.

Defendant has therefore failed to meet his burden to show that a new trial is warranted on this

basis.

Defendant also argues that the Court erred when it "permitted the Rule 404(b) evidence

of what transpired prior to the chase on the back roads of Crawford County from the night before

through what happened just before law enforcement began to chase Mr. Russian in addition to

the data (text and pictures) taken from his phonets)."? The Court admitted the "Rule 404(b)

evidence" because it was intrinsic to the crimes charged. 10 "Generally speaking, intrinsic

evidence is directly connected to the factual circumstances of the crime and provides contextual

6 United States v, Walters, 89 F. Supp. 2d 1206, 1213 (D. Kan 2000) (citations omitted).

7 Id. (quotations omitted).

8 Defendant's Motion, Doc. 126, p. l .

91d.

10 See United States v, Irving; 665 F.3d 1184, 1212 (10th Cir. 2011) (stating that Fed. R Evid. 404(b) limitsthe admissibility of evidence related to other crimes or wrongs but it only applies to evidence of acts extrinsic to thecrime).

-3-

Case 6:14-cr-10018-EFM Document 129 Filed 07/20/15 Page 4 of4

or background information to the jury."!' The testimony at trial regarding the events that led to

the car chase and Defendant's arrest provided background information to the jury. Without it,

the law enforcement officer's testimony as to why he pursued Defendant into Kansas, arrested

him, and searched his car would have been confusing and incomplete. Furthermore, the

1\'OY--21-101..3 U:.13l'lA fROlA-JUDIiEFLEhI\!t1i 235-0008 T-061 P,005/00e H25t t HOW WAS A WARRANT ISSUED HOURS BEFORE THEREWAS A NEED FOR ONE??? THE EARLIEST THERE WOULDThe AII~ged Time HAVE BEEN A NEED FORA WARRANT WOULD HAVE TO

And Date The Warrant HAVE BEENAROUND 10 - 12 PM! SET UP?????Was Issued By; , .....

Judge Lori Fleming. ,EARCH WARRANTSTATE OF KANSAS. COUNTY OF CRAWFORD:TO ALL LAW ENFORCEMENT omCERS IN THE STATE OF KANSAS

WHERBAS, at! Affidavit and Application for Search Warrant has been made to me byDeputy Cbris Wilson, Crawford Coanty Sheriff's Department, and having evidence ~

??? .2..athbefore me from Which I find that there is probable cause for believing as follows: 1. The following crime or crimes under the laws of the United States, the State of

Kansas, or any municipality of this county have been committed, to-wit:

KSA #21-S706{a) Possession ofJvfethamphet.amine "KSA #21-5706(b)(3) Possession of MarijuanaKSA #21--S709(bX2) Misdemeanor:Possession of Drug ParaphemsliaKSA #21-$707(a)(2) Unlawful Distribution of a Controlled Substiwce

2. That the following items are contraband, fnrits, instrwnents, or evidence of saidcrime or crimes, to-wit:

Methamphetamine and any controlled substances; any idandilcation ofindividuals present or found to be associated with the commission of the crimes;paperwork; we.records, currency, coin. OT other proceeds;items used or ~tci withproducing. processing. preparing, selling. packaging, repackaging, storing. containing.concealing, using, ingesting. inhaling, or otherwise' introducing controlled substances intothe human body- Firearms, eleetreaie equipment, or other items tbaI could be used tofaeilitate the conunission ofth.ese crimes. Computers, including butnot limited to theirhardware. software. manuals. storage components, disks, CD ROM, photos. video tape,3!ld printers, cell phones tbm:could be used to facilitate the commission of the crim6

S. That said items will be found at, in or upon the following described person, placeor means ofconveyan~Wrong Address!!!The residence of 503 E. Kansas Apt #1 Pittsbutg Kansas 66762 wililin CrawfordCounty described as a crown brick building with a porch on the north side, It willbe the second residence west ofCollt.-ge St. on the south side of the road. Thebuilcling has two exterior doors one on the north side and one on the south sidewith a hall way in tbe middle. Apt. 2 is one ofJour apartmentS within this buildingend is located Qn 1.bc ~orthWl:!$l comer of the building. Apt. ?112is occupied byJames D. Russian.

FROtA-JUDGE FLEMING

???-a -.

Lori Fleming 806 South Catalpa Pittsburg, KS 66762 (620)235 0008Souce; http://www.zoominfo.com/p/Lori-Fleming/206539545

YOU ARE THEREFORE coMMANDED to go torthw:lth, andwi~the.tilneprovided by law, and search the persM, place, or .means of conveyance descnbed mParagraph 3 above an!!.seize the items described :n Paragraph 2 and hold them to be dealtwith according to law, and make due return oftbis Wamnt.

WAlffiANT issued: Date AI0V .d- to

I???nj!'.5'... /WHAT TIME AND DATE

WAS lHIS WARRANT ISSUED!

,2003oclockiJn.

IDDGE~CRAWFORD COUNTY, KANSAS

Judge Lori Fleming allegedly lied to a federal prosecutorabout being stalked from the Crawford County Judicial Center parking lot whereshe and Elaine Schultz could not possibly see because there are no windows inthe Southeast parking lot of the Judicial Center. The people believe that if Judge

Lori-Bolton-Fleming was truthfully and factually being stalked by anyone shewould have immediately called the police department or the court security

already in the premises of the courthouse. Especially when she claimed to thefederal prosecutor [VIA EMAIL ON A SUNDAY EVENING] and the court in federal

case number 141001801EFM that she and Elaine Schultz were both fearful for their lives.The people are of the belief that if Mr. Russian was in fact stalking Judge Lori-Bolton-Flemingthen the court security cameras should have been provided as evidence. She would have

most definitely called the police on him if there was even an iota of belief that hewas stalking her. The people demand to see the court security video that wouldprove the alleged stalking allegations by Judge Lori-Bolton-Fleming and herco-conspirator Elaine Schultz. The people belief it was usurpation of power

and a criminal act by Lori-Bolton-Fleming to lie to a Federal Court in the hopesof jailing an innocent person - James Donald Russian. Such a blatant andobvious usurpationof power and violation of (Oath of Office) should be

considered as criminal activity as well and should be subject to a CRIMINAL INDICTMENT!!!

5

There are ~9Wll\IQ9W", on the South East side'ofthefenced in partdng!Qtoftbe,CraWfolti counh' cou,rt house where Judge"l.od ~., BOlton and t:laine SChultz

, claim to have "observed" that Mr. R.ussianwas stalking them. ,', ., .

Why didn't the Judge or Mrs. Schultz @Il the police since they claim they fearedfor their lives??1

The people allege this was a tie ngineered by Judge Lori Fleming to haveMr. Russia kept in ~era{prison. -

r: ~':"~. '~L --- filED How Come ThisW,ho Delet d The TlIEg,EVE..l'ITHJUDICLI\..LDISWQ'QllRTOF Information wasFax Date and Time CRAmORD COVNTY. ~""1ffi ~ NOT Deleted??(AND WHY) FromJudge Fleming

On NOV-27-2013@8"23pM ???

"..:

TNREi SEARCH WARRANT FOR! l'1:U~fKR~'~M~f~;1 One Samsung brand cellular telephone mJ~ S~irj reTina black incolor and lIllY.removable lll~dia sloragcrdcyi~e}fttaChcd fRund in the p9ssession otJiIIIlcsDonalcl Russianlltthne ofmcst, - .' , . ;. ".'

:2- One SIllllSUIlg brand ccllulertelephonc Inodel SOHS275G black1n color IIIldany removable-media storage deViceattached fOllndln thll possession of Ja1Ues~mUdRussian at~eofap:esland; ~ong Address!! .

S - The re~ence s E. I(~as A~ if'2 I'itIsblllg KansllS 66702 withinCIawford County occuple~ by James. Russian to include any outbuildings,attached or unattached gll'221':S ana: vCbiClcs at-lhat iooation. .

APPLl,CATIONFOR SEARCHW~

State ofKrmsas, Crawford County, ss:

Deputy Chris Wllron. oJ/awfid ag~jlrst beIngdulysw()rn on oath, on. !r{ormation and belief slate!: . . .'.' .

Affia'nt has prob~le cause to believe and 1. Tal: m~$~ges,J'!lolle numb~rs,phone calls s~nt~drecived, any data comainoowithin the phone oron any removable media devi~~Withinthe phone IllldTma8CS QontriQutingto the possession or sale of lUIy Ulega!drug end dcugparaphernalia.

1. MY m~gal drugs of drug pata~hetnali!

A.rc ioeated in or upon the above described person, pb.ces, thing s, Drmeans orcoovCJ'lln~,

Russian Discovery 1000090

\Deleted Fax Information. Why?

\

N'! P .OI!3/VOI F-m

That the bi!S1sofnffi:tnt's probable caw!! l!~I, Oeplity Chris Wj\s~ a duly authorized Iaw -entorcement oiicer of . HOw Do You Apply

Crawford County, Kansas, being ofl~ al1:~,after f'b:st being swomon oath. does St1\~ . For A Warrant 'This Was Afterthe follOwinllll:l. it occurrcdbtCraWfo:l"clCci,:' ICmU8!I. . BEFORE There'

The Warrant November 27111, 2013at'230 I was dispatchaHo the lOCAtionofUl60 Is A Need For One???Was Faxed Hwy ~ sta e e Jnre el ce 0 a v cle PIIlSulC in which Barton CountY was

O.1pYOlved.It was reported by B.Barton C()unty .Deputy t\lat he was putSuing a blue or

n Nov-27-20 1~lVet vehicle in which the driver (suspect) trreatencd uulijeot II!ld .'as possibly in@ 8:23 PM possessionoflhandgun.

By Judge Fleming??? '. . ..... " . .' ;Banon.j:;ol;IDty deputies p~ued.~~.yehicle into Crawfutd CoUl\t)', State of ... .: .l.

Kansas.Ientered the l'\I~uit which c:o~tinued~ton tI160, tIY'Y ore tumilJg southmu..U(')U.J k, s ,~'l'c,c.[il'240111 St. The Berton -,:>~---. . -.., . .....

In the driver's door a ball of greed leafY substance that based on my training andexperience Ibelieved to be n:tarijuana.

2 Also on tlre driver's side was lo~tecl one $1.00 bill, one$S.OO bill and one $10,00blll, ... ,.. .

l-J~jY'f' 4!.'T- ~.~In the front E.lie!!g.e;-Seat _Ikl.cateda black: Sams\lIlg ~~phoI\e, a small ccoler .. I ~tIiaicontamed oltles afan alcoholic beverage and a blae!; bag that contained nine

plastic baggies with eaeh bag containing a small Qmnuntof a green leafysub.9tancebeuev'ed to be marijuana, one half of A match book and one to two .rolling papers, All cine baggles had the same wrlt~g Ol\: them, Storm !1aektnlller,605W_ Marrin, '1'his l's 00me, ~14-3265209 .

. 4- One broken g1!1Ss- smoldnll pipe with a whlte powdery residue and a burnt marI{.Due 10'my training and expeclencethe white powdery substill\cc within the glasspipe is believed to be Ine!Mm-phetamine .


-;:=:=C;::===, , ===-"* :=:=,=.--~~~,'~~~OGI~-:==81~o~===~.~~,~~Not Missing???Missing??? All the iWDlS were co1lec1eclllS evid~ and the vehicle towedfrmn the scene.

I .laterCo.Q1:!Cted ~arton County Deputy lordl!l1 JlIStic~ who advised Ille that ~8 hisin~gation the viClim' in his rCpo~Allaeia Lowery. rCported, to himthatMr' RlIssiIlll

~ dNgsaDd dmgrl!atedib:ms~ bAA~t1rls~inPitts~l{s. Sheaho sta1I!d thatho has alndden COlI\pamnein Wldtrtbe slnkvanity inhisbalhio~'Ashcmn:d thatlhete is a removable board to reveal the~em wherehe keeps_~th~~. ' '

Based onmy' training 8I!d expe:ticnce individual. whoselli!l~ druiD c'arIy, and use small tlenooirMtiems of ~ in dtUg iranftCtiOll! and 1lSlWly haw seyeftl '

Correct srnall (ll11!"eneyb11lsO:ntbeir~on. Al$c;I"nsedln Ut:distn'bUHonOfi~ ~ilrecen, phones and ~ ~ om: cell phonc.is,laIIallytmled. Based on the items fotmd w:h!dnAddress??? ,Mr. Rwsian'II vehicle Slld on his person aloagmth \'heViCriIII'S$WeIlIeIl.t \\1Batton

~ ~0\1I1~ PepUtY JusWiC~thm:e~P-"Qb~li~~~e to ~1ieved, tPatthe reSi~~~ in Wlii!;Jt;.~!iap resides. S03 W.Kans!lS St.m the City ofP~ttsbuIg Ks. 66162,WithinCrawf'oid

, %lnty oornains di\ii Idated itemsmed in tile possession, IIIgestion amd s~ of Illegal, drn&S. Thereis 'iIlsopmbable Cl!lISC to believe that mcssag~. pholilS and otherdati Will "

be ~ wilhJn lhc cell phoaes IDeated WI'thMr; lb,AAitm'lIt his time ofarrest.

FURTHER~T SAlTHN9T.

, ' WHEREFORE. pjflf1m prcrp tirIJi aMchwarrt111/ be !$$ued. a~dJng to, law, TO searchfor; apj;rTmmd and,~ 'the abow 'described ft~m.s,t/atrj (we be, ,haldmg thllm to be det4twilh according 10law., ., , ~~' lUP--;~N1 ~uBs~l~SWORN to~~thiS ss {Jay~f l

.. ~,, CRAWFORD~, :

HOVYWAS, THISAPPUCATION FOR A SEARCH WARRANTSUBSCRIBED AND SWORN (UNDER OATH, MIND YOU)BEFORE JUDGE FLEMING ON THANKSGIVING DAY

, NOV*28TH-2013 WHE~ SHE HAD ALREADY PREVIOUSLYFAXED IT THE NIGHT BEFORE (THANKSGIVING EVE)@8:23 PM NOV-27-20~3AND HOURS BEFO~I;: THE

INCIDENT THAT STARTED AT 11:03 PM ON NOV*Z7., 2013.WHERE WAS THIS DONE SINCE Tt-fE 'COURT HOUSE

WAS CLOSED ON THE 28TH OF NOV, 2013???

Russian Discove

..,

- - -. 1.3 ntC-2 AS :431'- OneSamsung brand cellulartelephone model SCHR270 reaandDfack incolor and any remo~le n;edia storage deviceattachedfound ~,~i18r5fs~~R~,i

This Contradicts Th~nalg.!?J~_~attimeofarrest. 0 Cff.l\ViFOROCOUHfV

Previous Appllcanoru. OneSamsung brandcellulartelephonemodel SGH-S27stY blm;kiIrnltonmrt-"For searon WarranfllnY removab!emed~a storage device attached foun9in theposseaslon of~

_ "Donald Russian at timeof arrest and; "Which Shows Th~ -' ("' , ,

Residence of 3-:"theresidence01'503W. Kansas Apt #2 Pittsbur~Kansas66762v.:~. Crawford County occupied by Lames p,Russian to mclude any outbuildmg9,

503 ,East Kansas, attachedor unanachedgarages'end vehiclesai1iiatIocstion,-Apt #2.

, ;

__,,_, -RETURN OFSEARCH WARRANT

State of Kansas, County of Crawford, 55:How Can You T"rlE STATE OF KANSAS TO any-ShcrifI, Deputy Sheriff OrPeace-Officer of the State or

Search a House any Peace Officerof Kansas:23 Minutes BEFOR~' d 'd'received this warrant on November 28th. 2013, at m.m an have exec,ute It asThe Search Warran Ilows: "

is Valid??? The' )I.- - ' ,Search Warrant, On November 28th. 2013at ~ I conducted a search of the person, place, or means of

_ conveyanccdescnhed111the al-W'bea warrant and I seized the items of property listed below,Was Dated f.or en re-verse side, or onattached list. -The search was completed on Noyember 28th.1013 atNov-28-201~ 11:13 AM. Officers present and participating in this search are identi1ied as follows:@8:15AM. ' "'",,'

Crawford County Deputies. Cbris Wilson, Donnie Kmiec. Dong Morrison. ReserveDep!ltt Dustin Walker, Pittsburg-Police omeel'S' Dustin McDanieisund Tony Colyer

Acopy of thiswiinant, wi!h signed copy aftbis return listing said property seized and, held,was by me: (check applicable box)

o Left with I', as a receipt particularly describing each sucharticle seized from such person and held, sneb person being detained or mested In connection 'with this search, I

~ l..eft attlJc l'laceQf~c~ch and seizure, there belng no personavajillblD with whom to leave It- List ofltemsaeized is attached.

Returned / f). -().!CkJ / J

Subscribed end sworn to and returned before me on

/ '{)...!).~/") , ,2013,

Judge - Clerk


DETECTIVE STU HITE SHOULD NEVER BE INVOLVED IN A CASE INVOLVING JUDGE LORI B. FLEMING ANDVICE VERSA IT IS A CONFLICT OF INTEREST FOR JUDGE LORI. B FLEMING TO BE INVOLVED IN A CASETHAT .lNV-o.LV-ES-DETECTNE STU H!TE D,UE TO. THEIR PERSONAL TJES I CONFUCTS o= JNTERESTS.

\,/I TlZU-C!? ,fI

f.:~kr'b, ifA-

CRAWFORD COUNTY SHERIFF'S DEPARTMENr-'DETECTIVE'S NARRATIVE

It is a disturbing conflict of interest for Detective Stu Hiteto be involved in any case involving Judge Lori Bolton Fleming

December4,2013due their' personal ties. ~ Stoillte n;Investigation Date Detective

SUBJECT:VICTIM:kIUME:

PLACE.& DATE:

..James Russian/St;'te~OfKans:asPossession of Marijuana with intent to distribute, Possession withintent to manufacture methamphetamineeRA WFORD COUNTY, KANSASNovember 28, 2013

RE:,/~''-:''''l

Photograph text m~ssages f;om one Q(g~5cell pn,6nesand obtain approX1lllate weights of drugs recovered. .

DETAILS:

OnDecember 4,2013 1. Detective Lieutenant Sto RITE assistedDeputyChril;\Vrr.sONIfu.bis r!,!'.!-'. $tAte ys iWnes RlJSSIAN case. I photographed' each of the text meSsag~.Qii!ono o{iheplione";"V,'1tsON recovered from RJlS.s.!~!'f/Wea1so weighed the suspected nareoticsThat WILSONrecovered from ~!iSs!A1;l'SNehicle following a pursuit as well as what was recovered from asearch warrant of RUSSIAN'S residence.~... ~~We weighed items that WILSON had labeled in Item #29 (41 Individuallywrapped plastic bags.containing a tom book 01 matchesiand ~t was. determined to be approx, 1 gram of greenvegetation believed to be marijuana)!- Care was taken not to include the weight of the packagingand matches and a bag containing just matches 1"BSweighed peperately to arrive.at the 1.gramweight of the vegetation. This would be what is collllll~nlj referred to in street slang I!Sa "dimebag" 6~ $10 bag ofmarijuana ~Sometbing very oad abolltthe packagingwas that each bagcontained the name of "Storm Haokmiller'', an address and telephone number and thewords,"this one is on me"~ I find this highly unusual, and have never observed any such branding orownership of illicit drugs in my 25 years in law el!f2!c~ment.

The following is a total weight of each item weighed.:

ltem#l & 13...3 gramsItem#29 .41 grams of marijuaauItem #511 .. 9 gramsHem #3 1.gramltem#7a l gramItem#25 .1 gramItem #26 1 gram

CRSO Case Number: _-,2",0",,1~300=14,,-,8:.::8,--_

Russian Discovery 1 000094

.LORI.BOLTON FLEM!NG 15 MARRJED TO ATTORNEY KYLE FLEMING.

IN THE SUPREME COURT OF THE STATE OF KANSAS ~

No. 106,150

STATE OFKANSAS,Appellee,

v,

TYJUNA M. SHARKEY,Appellant.

SYLLABUS BY THE COURT

LA motion for new trial filed within the 14-day limitation period in K.S.A. 2013

Supp. 22-3501(1) and before a direct appeal is a critical stage of a criminal proceeding,

and a defendant has a right under the Sixth Amendment to the United States Constitution .

to representation by conflict-free counsel at a hearing on the motion.

2.It is the task of a trial judge to ensure that a defendant's right to counsel under the

Sixth Amendment to the United States Constitution is honored. In order to fulfill this

duty, where a trial judge becomes aware of a possible conflict of interests between an

attorney and a defendant charged with a felony, the judge has a duty to inquire further.

3.If a trial judge makes an appropriate inquiry regarding a possible conflict of

interests between an attorney and a felony defendant, the trial judge's decision is

reviewed under an abuse of discretion standard But a trial judge abuses his or her

discretion when the judge fails to inquire into the nature of the conflict.

1

4.A trial judge does not fulfill the obligation to ensure a criminal defendanfs

constitutional right to effective assistance of counsel at a hearing on a motion for new

trial by merely providing the defendant with an opportunity to make a pro se statement

5.

The complete denial of the assistance of counsel or the denial of counsel at a

critical stage of criminal proceedings, which can occur if an attorney stands mute and

fails to advocate for the criminal defendant, presents circumstances of such magnitude

that a court must presume a probable prejudicial effect upon the outcome and a case-by-

case inquiry of prejudice is unnecessary.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed April 11,

2014. Affirmed in part, reversed in part, and remanded witb directions.

Michelle A. Davis, of Kansas Appellate Defender Office argued the cause and was on the brieffor

appellant.

Boyd K Isherwood, chief appellate attorney, argued the cause, and Nola Tedesco Foulston,

district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Tyjuna M. Sharkey appeals from his jury trial conviction for

aggravated indecent liberties with a child, in violation ofK..S.A. 21-3504(a)(3)(A).

Sharkey raises three issues, two of which have been resolved.

One issue, an error in completing the journal entry to include lifetime electronic

monitoring, even though that condition had not been announced at the time of sentencing,

has been corrected through a nunc pro tunc journal entry and is moot.

2

In a second issue, Sharkey argues the State presented insufficient evidence that he

acted with both the intent to arouse or satisfy his sexual desires and the intent to arouse or

satisfy the sexual desires of the alleged victim. Sharkey contends the State was required

to prove both alternative means of the intent requirement because the jury was instructed

on both means. See State Y. Wright, 290 Kan. 194, Syl. 1[ 2, 224P3d 1159 (2010) (inalternative means case, jury need not be unanimous as to which means defendant utilized

but there must be substantial competent evidence of each instructed means), overruled on

other grounds by State v, Nunez, 298 Kan, 661, 316 P3d 717 (2014). Subsequent to

Sharkey filing his appellate brief, however, this court held in State v. Britt, 295 Kan,

1018, 1025-26,287 P3d 905 (2012), that the intent element ofK.S.A. 21-3504(a)(3)(A),

which was the basis for the jury instruction, does not state alternative means. Sharkey has

not presented any compelling reason to reverse Britts holding. Consequently, we reaffirm

our holding in Britt, which resolves the issue against Sharkey; and without further

discussion, we reject Sharkey's arguments on this issue.

This leaves as the sole issue for our consideration Sharkey's claim that the trial

judge erred in denying his pro se motions for new trial-based on allegations of

ineffective assistance of counsel--without first appointing new conflict-free counsel to

assist him in arguing the motions. We hold that this argument has merit because the effect

of the trial judge's failure to inquire into the nature of the conflict and appoint new

counsel was to deny Sharkey his right under the Sixth Amendment to the United States

Constitution to have the effective assistance of counsel at a critical stage of the criminal

proceedings against him. We remand the case for appointment of new counsel and

consideration of Sharkey's motions for new trial.

3

FACTS AND PROCEDURAL BACKGROUND

Sharkey's conviction arose from his contact with 12-year-old T.W., who was a

friend of Sharkey's stepdaughter. During a sleepover at Sharkey's house, T.W. awoke

when she felt something heavy pushing against the back of her body. T.W. found her

pajama bottoms and panties had been pushed down to her upper thighs and Shatkey was

"forc[ing]" or "shov[ing]" his penis between her buttocks in an up-and-down motion, to

"kind of like make it fit." T.W. pushed Sharkey's shoulder and was able to pull away and

flee.

Based on T.W.'s allegations, Sharkey was charged with aggravated indecent

liberties with a child. Sharkey was eventually tried two times. In his first trial, which

resulted in a conviction, the State presented a DNA expert who linked Shatkey to semen

found on T.W.'s pajamas. Posttrial, Sharkey sought and was granted a new trial when

additional DNA testing showed the "presence of at least a third individual" -someone

other than T .W. or Shatkey--as a secondary or weaker source matching the DNA profile.

At the second trial, which is the subject of this appeal, Sharkey presented expert

testimony explaining the third contributor could have been Sharkey's wife or her teenage

son. The defense expert suggested the DNA could have been postcoital discharge from

Sharkey having sex with his wife and the fluids could have been transferred to the

pajamas. Based on this testimony, Shatkey built a defense around the suggestion that

T.W.'s story had been concocted in concert with his wife and her daughter because they

were upset with him. The second jury again convicted Sharkey.

Seven days after the verdict and before sentencing, Sharkey filed two pro se

motions. In the motions, Sharkey requested a new trial and new counsel, basing his

arguments on allegations of ineffective assistance of defense counsel. Previously, at

various stages of both trials, Shatkey had filed similar motions and had cycled through

4

several attorneys. During the second trial, Sharkey had made complaints against his

attorney, at least some of which were similar to those in his posttrial motions.

Pro Se Motions at Issue

In one motion, labeled "Pro Se Motion for Re- Trial,"" Sharkey argued he was

entitled to a new trial because his counsel kept him "in the blind" throughout the trial and

failed to explain "all and

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