This blog maintained by and property of The Leonard Peltier Defense Committee

Monday, December 20, 2004

LEGAL UPDATE-December 20, 2004

No U.S. Jurisdiction at Pine Ridge

On December 15, 2004, attorneys for Leonard Peltier filed a Motion to Correct an Illegal Sentence. The statutes under which Peltier was convicted state requires the acts in question take place "within the special maritime & territorial jurisdiction of the United States". Because the acts occurred on the Pine Ridge Indian Reservation, which is neither within the special maritime nor territorial jurisdiction of the United States, Mr. Peltier claims he was convicted & sentenced for crimes over which the U.S. District Court had no jurisdiction.

The recent Supreme Court decision that ruled the sentencing guidelines in Washington State unconstitutional & threw state & federal courts into turmoil (Blakely v. Washington 124 S.Ct. 2531, 2004) also is cited in the brief submitted to the District Court on Peltier's behalf. In that case, the judge made "findings" independent of the jury and added 37 months to the 53-month sentence stipulated by the state guidelines thereby using a looser legal standard - "preponderance of the evidence" - than the "beyond a reasonable doubt" that juries use in criminal cases. The Supreme Court ruled that this practice violates the Sixth Amendment right to a trial by jury. Any facts used by a judge to justify a sentence longer than that recommended by the guidelines must be based on facts the jury had when it convicted the defendant.

Not only did the judge lack jurisdiction in Peltier’s case, but he also inflicted a sentence which the jury’s verdict alone did not allow. Peltier is calling on the Federal Rules of Criminal Procedure in effect at the time of his sentencing - specifically, Rule 35(a) - that provided that the Court could correct an illegal sentence at any time. This rule applies to any offense committed before November 1, 1997.


In a lawsuit filed on September 2, 2004, the Peltier attorneys claim that US Department of Justice officials have knowingly violated the Sentencing Reform Act of 1984 & illegally extended Peltier's prison term by 12 years or more. The action claims the unconstitutional application of the Sentencing Reform Act by the United States Parole Commission (“Commission”). Once Congress mandated a release of those in Leonard’s position within a specific date within guidelines, Congress’ subsequent repeal of that statute, thereby increasing the sentences of those in Leonard’s position constitutes a violation of Leonard’s Constitutional rights and means he has been unconstitutionally incarcerated since November of 1992. We need to rally around this issue and insure that the courts finally give Leonard the justice he is due.


This is part of a long battle to acquire documents the government has been withholding; the United States government has engaged in a long history of withholding crucial documents concerning key aspects of Leonard's case. At Leonard's 1976 trial, the FBI produced approximately 3,500 documents and indicated that these were all the documents that existed. History proves this to be absolutely false. After Leonard was convicted, Peltier's legal team acquired, through the Freedom of Information Act requests, 12,000 documents that the FBI had previously withheld. These documents unequivocally demonstrated that the FBI withheld crucial exculpatory evidence which was not presented at trial and that the FBI presented perjurious testimony to wrongfully and unfairly obtain Leonard's conviction. The FBI, under the guise of "national security interests," purportedly withheld 6,000 documents, stating that that was the extent of the documents in the Peltier file. Since that time, the legal defense team has discovered that the government is still withholding approximately 140,000 documents concerning Leonard's case. We are pursuing this as follows:


Michael Kuzma has been leading the charge to acquire the over 140,000 pages of FBI documents contained in field offices through out the United States. We, the legal team filed suit in the United States District Court for the Western District of New York on 12/02/03. As a result of this FOIA lawsuit, the FBI reviewed 812 pages from the Buffalo field office and released 797 pages in full or part on 3/16/04. The FBI is invoking national security and law enforcement exemptions for withholding documents. As a result of a suit in Minneapolis, the Chicago file of approximately 2,500 docs has been released in full or in part based on the exemptions. Processing has begun on the Minneapolis file and we have learned that the Minneapolis file actually has 90,000 pages. We had initially believed that only 45,000 were in the main file, but we have now learned that an additional 45,000 are in a sub-file. Also, we have learned that there are a total of 140,000 files in field offices around the country, whereas, previously, the FBI had told the team that there were 60-100,000. We are pressing hard to have the government immediately release all files.

Other issues which have arisen involve missing files throughout the country and we find the missing New York City file to be particularly mysterious. A request was submitted to the New York City office and we were advised that Leonard's files "was presently unavailable" and placed on "special locate." This was reiterated again in the summer of 2003. In December of 2003, we filed an appeal and on February 27, 2004, OIP advised us that the FBI was making every effort. People should contact their representatives in the Senate and the House to find out what happened to the missing files and to inquire as to why the files haven’t been produced. The majority of the sought-after documents in the Buffalo case are over 25 years old. Nevertheless, the government is resisting efforts to release this data on national security grounds. Documents are supposed to be automatically declassified after 25 years under Executive Order 12958. The FBI is arguing, however, that this material should not be subject to automatic declassification because it could damage national security & the so-called war on "transnational terrorism". The FBI also contends that release of the data could have a chilling effect on the free flow of intelligence information diplomatic relations between the US & a foreign government.

On August 11, 2004, the Peltier attorneys filed a Memorandum of Law in Opposition to the government's Motion for Summary Judgment in the Buffalo case.

Constitutional Violations

On August 6, 2002, a Joint Petition for a Writ of Habeas Corpus was submitted to the U.S. District Court in the District of Columbia. This pending appeal concerns the unconstitutional misapplication of the Sentencing Reform Act of 1984 (under which prisoners sentenced "under the old system" were to be issued release dates no later than October 1989) by the U.S. Parole Commission. On February 20, 2004, a Reply Brief (Re the government's Motion to Transfer Petition for Writ of Habeas Corpus [to the U.S. District Court in the District of Kansas]) was filed. In March, the U.S. District Court in the District of Columbia granted the government's Motion to Transfer.

Finally the legal team has many other avenues it is pursuing to seek Leonard's long overdue freedom. Because of the importance in keeping these tactics confidential, the information presented in this update is all that can be revealed now. However, it is the legal team's firm opinion that there are still many avenues of relief, which should ultimately open the prison doors for Leonard. More than ever the legal team and Leonard need your support to keep these avenues alive. The legal team will keep you informed as to how you all can help. Your help is so important in attaining Leonard's ultimate freedom from the unjust imprisonment he has faced all these years.