Original Sixteen to One Mine, Inc.

Motion to Set Aside

On November 20, 2002, the following Motion to Set Aside was filed by the company prior to entering pleas in the new Grand Jury Indictment. CDAA employee Denise Mejlszenkier also filed People’s Motion to Dismiss the earlier complaint filed by CDAA on June 12, 2002 on November 20, 2002 (These are the charges that were pressed prior to the Grand Jury Indictment by the CDAA, creating "double jeopardy"). The judge postponed hearing the motion until January 23, 2003, our next court appearance. What do you think?


Isn't it unusual for a prosecutor to seek a grand jury indictment for the same alleged criminal act when she already had a complaint filed and a preliminary hearing scheduled? Could the American Constitutional right of double jeopardy be an issue? A grand jury indictment precludes a defendant from exercising his or her right to a preliminary hearing. What could all this mean? I welcome your thoughts both on the forum or with our feedback alternative.














Case No. CR 00768A X


Motion to Set Aside


Defendants Jonathan Todd Farrell and Michael Meister Miller request the Court to set aside the indictment issued by Sierra County Grand Jury on October 31, 2002, against them. Prosecutors Gale Filter, Denise Mejlszenkier and Anthony Patchett knowingly and willfully misled the Grand Jury as to the existence of exculpatory evidence; by omission they collectively violated the California and United States law; California Rules of Conduct; or violated California Penal Codes in obtaining an indictment for criminal charges against the defendants.


Misled as to presentation of admissible evidence

Prosecutors failed to instruct the Grand Jury that citations are instruments of allegations. Until citations pass through the statutory administrative process, their authority is limited by law. It is now settled that the proof required to hold defendants to answer or to support an indictment must consist of legal and competent evidence. (See People v. Byars (1961) 188 C.A 2d 794, 796,10 C.R. 677; Badillo v Superior Court (1956) 46 C 2d 269, 271, 294, P2d 23; People v. Schuber (1945) 71 C.A 2d 773, 775, 163, P2d 498

The People of the State of California prepared a transcript of the Sierra County Grand Jury, dated October 28th and 29th, 2002, with an index of exhibits (attached). The Court identifies the “California District Attorney’s Association, a special statewide group” (CDAA) as the team that presented the information identified as evidence (Page 3 of transcript).

The crime charged was willful violation of a governmental occupational safety standard. No notice or citation alleging a violation of a safety standard was presented to or introduced into evidence in the Grand Jury session, witnesses merely giving oral testimony as to its alleged content or existence. People v. Bartlett (1962) 199 CA 2d 173, 18 C.R. 480 held that testimony was incomplete and consequently there was no legal evidence of commission of a crime because of such an omission in a similar case. Although judicial notice might be taken of a public document at a trial, the grand jury has no power to take judicial notice. C 199 C.A. 2d 177, 179.

Grand Juries Serve America


Defendants are not challenging the grand jury process of indictment or its decision that reasonable or probable cause exists, “if there is sufficient proof to make it reasonable to believe that the defendant is guilty of the offense charged…on a motion to set aside…the court is only to determine whether the ‘Grand Jury’, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated.” (People v. Jablon (1957) 153 C.A.2d 456, 458, 314 P 2d 824; see People v. Nagle (1944) 25 C2d 216, 222, 153 P.2d 344; Lorenson v. Superior Court (1950) 35 C2d 49, 56, 216 P.2d 859; People v. Crosby (1962) 58 C.2d 713, 719 25 C.R. 847, 375 P.2d 839;People v. Stansbury (1968) 263 C.A.2d 499, 502, 69 C.R. 827, infra §234; People v. Scoma (1969) 71 C.2d 332, 335, 78C.R. 491, 455 P.2d 419; Williams v. Superior Court (1969) 71 C2d 1144, 1148, 80 C.R. 747, 458, P.2d 987, infra, §246; Taylor v. Superior Court (1970) 3 C.3d 578, 582, 91 C.R. 275, 477 P.2d 131; People v. Donahue (1975) 46 C.A. 3d 832, 836,120 C.R. 489, citing the text.)




The District Attorney’s Duty


“The duty of the district attorney is not merely that of an advocate. His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial…”(In re Ferguson (1971) 5 Cal.3d 525, 531,[96 Cal. Rptr. 594,487 P.2d 1234].) The advisory system does not extend to grand jury proceedings. If the district attorney does not bring exculpatory evidence to the attention of the grand jury, the jury is unlikely to learn of it. We hold, therefore, that when a district attorney seeking an indictment is aware of evidence reasonably tending to negate guilt, he is obligated under section 939.7 to inform the grand jury of its nature and existence, so that the grand jury may exercise its power under the statute to order the evidence produced. Johnson v. Superior Court 15C.3d24 Cal. Rptr. 32, 539 P2d 792


Prosecutor’s failures


The CDAA team failed to comply with 939.71 (California Penal Code). Prosecutors shall inform the grand jury of exculpatory evidence they are aware of. Failure “results in substantial prejudice” and is grounds for dismissal of the portion of the indictment that is related to that evidence. The Legislature by enacting this section codified the holding in Johnson v. Superior Court, 15 CAL.3d 248 and affirmed the duties of the grand jury pursuant to section 393.7.

The CDAA willfully and maliciously obstructed justice by concealing exculpatory evidence it had submitted as discovery in its criminal complaint against defendants (filed in Sierra County on June 12, 2002). Such obstruction prejudiced the Grand Jury whose responsibility is to exonerate citizens falsely charged as well as to indict citizens when probable cause warrants an indictment

Prosecutors had in their possession and issued as discovery in an identical criminal complaint, Reports of Investigation by Senior Investigator Jean Peterson, dated October 1st, 2001, and numbered N1110-074-00. On page three CAL/OSHA mine inspector and a witness to the grand jury wrote that he inspected the drift a week before the incident. He said that without a locomotive located directly under the extended chute, he was unable to see the hazard presented. Such testimony is material and significant. It was knowingly and willfully withheld from the grand jury.

CDAA promoted testimony of state and federal witnesses to falsely depict the conditions of ore chutes and underground conditions at the Sixteen to One Mine, and to mis-state the law, regulations and standards promulgated and codified with the Federal Mine Safety and Health Act of 1977, Public Law 91-173 as amended by Public Law 95-164 commonly referred to as “An Act” including but not limited to:

Section 2(e). Congress declares that the operations of such mines with the assistance of the miners have the primary responsibility to prevent the existence of such conditions and practices in such mines.

Section 106(a)(i). Any person adversely affected or aggrieved by an order of the Commission issued under this Act may obtain a review of such order in any United States Court of Appeals for the circuit in which the violation is alleged to have occurred.

Section 303 (3)(d)(i). No person, other than an authorized representative of the Secretary or a State Mine Inspector or persons authorized by the operator to enter such place for the purpose of eliminating the hazardous conditions therein.

Defendants insist that erroneous rulings on evidence were presented to the grand jury. Prosecutor’s omissions are prejudicial, improper restrictions to the flow of information required by a grand jury to evaluate and weigh the evidence before them (testimony about physical condition of prevailing standards in the mine).

While a defendant does not have the right to cross-examine its accusers, the fact that the prosecutions evidence showed probable cause does not make the error (omission) harmless. The prosecution has the obligation to introduce evidence tending to overcome the prosecutions case or establish an affirmative defense (66C2d88) Penal Code Section 939.7


Incompetent evidence submitted to Grand Jury


The CDAA team practiced willful omission and violation of California Professional rules of Conduct compromises CA Penal Code 939.8. It may be shown that the proceedings before the grand jury may have produced an adequate showing, without too much attention being paid to the relevance or competency of the evidence; however, when the admissibility of the evidence is considered and if it appears that excluding incompetent evidence, the showing is insufficient, the writ will issue. Davis v. Superior Court (1959) 175 C.A. 2d8, 22,345 P.2d 513; Mott v. superior Court (1964) 226 C.A. 2d 617, 618, 38 C.R. 247; Cook v. Superior Court (1970) 4 C.A. 3d 822, 829, 84 C.R. 664.

Ethical and legislated rules for lawyers

It is presumed that the CDAA team members belong to the California State Bar. As such they are required to honor and abide by its rules. The following rules have been violated by them:

Rule 5-100(A)(B) Preempts administrative law

Rule 5-110 Government service performance

Rule 5-200(B) Shall not seek to mislead the judge by an artifice

Rule 5-200 (E) Testifying

Rule 5-210 (C) Employer consent

Rule 5-220 A member shall not suppress any evidence that the member or the members’ client has a legal obligation to reveal or to produce.


Defendants pray that this Motion to Set Aside be granted.

November 20, 2002

Respectfully submitted by


Jonathan Todd Farrell



Michael Meister Miller



Michael Miller


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