Official Statement of Ranjith Keerikkattil.pdf -

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OFFICIAL STATEMENT OF RANJITH KEERIKKATTIL RE: USAO-DC AND JOHN GIOVANNELLI Ranjith Keerikkattil (“Mr. Keerikkattil”, “RJ”) is a U.S. Citizen of Indian Origin. He is a highly qualified professional with three postgraduate (masters or greater) degrees and has worked for the U.S. Federal Government, Defense and Intelligence Sector firms such as General Dynamics and Northrop Grumman, as well as in Consulting. Mr. Keerikkattil is also a victim of the crimes of assault, intimidation/stalking and failure to appear, a case investigated by the Metropolitan Police Service of London and prosecuted to conviction by the Crown Prosecution Service of England in 2019. The subject matter of this public statement is a matter of international concern involving the governments of United States of America, Australia, United Kingdom, India and Iceland, as well the United Nations. Mr. Keerikkattil, a U.S. Citizen, fears for his life from AUSA John Giovannelli (“Mr. Giovannelli”), a racist, egomaniac prosecutor who has been abusing the resources of the U.S. Government to persecute him for the past six years since 2016. As a consequence, Mr. Keerikkattil has suffered from significant physical and mental health conditions including Severe Obstructive Sleep Apnea (OSA), Binge Eating Disorder, Major Depressive Disorder (MDD), Post-Traumatic Stress Disorder (PTSD), Non-Alcoholic Fatty Liver Disease (NAFLD) and Severe Insulin Resistance. Mr. Keerikkattil had none of these medical conditions in 2015 and was indeed perfectly healthy. In support of his public statement, Mr. Keerikkattil cites the following documents: • Emergency Motion to Dismiss • Emergency Motion to Quash • D.C. Office of Disciplinary Counsel Complaint against Bernard Grimm (Exhibit B to Emergency Motion to Quash) • United Nations High Commissioner for Human Rights (“UNOHCHR”) Complaint (Exhibit D to Emergency Motion to Quash) I. Mr. Giovannelli’s Defamatory and Threatening Public Statement Mr. Keerikkattil is compelled to release a statement publicly because on July 12, 2018, contrary to standard procedure and common sense, Mr. Giovannelli, fraudulently in the guise of the former United States Attorney for District Columbia, Jessie Liu1, published a public release2 with a note – ‘FOR IMMEDIATE RELEASE’ boasting that he had fabricated a BRA indictment against Mr. Keerikkattil on an underlying single count misdemeanor charge. Mr. Giovannelli also explicitly threatened that Mr. Keerikkattil will be arrested at the airport upon returning to the United States. From the language of the public release, it is obvious that his intent was to publicly humiliate and embarrass Mr. Keerikkattil as well as to destroy his career prospects. A detailed review of the public releases on United States Attorney for District of Columbia’s (“USAO-DC”) website conclusively proved to him that there has never been a public release for a single count misdemeanor “should have known” stalking charge or a BRA charge based on such a charge. Mr. Giovannelli is a Deputy Chief of Homicide Section within the Superior Court Division and prior to that was a Deputy to Kevin Flynn, the Chief of Felony Major Trials Section. Despite being a single count misdemeanor case of the lowest mens rea, Mr. Giovannelli was assigned to harass and intimidate Mr. Keerikkattil, in retaliation for filing a U.S. Department of Justice Office of Professional Responsibility (OPR) complaint against Mr. Flynn. 1 Ms. Liu, currently a Partner at Skadden, has no knowledge of the statements attributed to her and had much bigger fishes to fry than a single count misdemeanor. 2 https://www.justice.gov/usao-dc/pr/maryland-man-found-guilty-stalking-former-co-worker-now-accused-fleeing- us-iceland 2 Mr. Keerikkattil was charged via summons on a single count of misdemeanor “should have known” stalking allegedly in violation of D.C. Code § 22-3133(a)(3), based on neither any acts of violence nor threats of acts of violence, but because of speech involving matters of public and private concerns and for filing a lawsuit in federal court. Initially, he was frivolously charged with a single count of “with the intent to cause” stalking pursuant to D.C. Code § 22-3133(a)(1) and was given a plea offer of probation should he plead guilty to that charge. Following nine months of bullying, including threatening to maliciously overcharge Mr. Keerikkattil with multiple counts of D.C. Code § 22-3133(a)(1), Mr. Giovannelli dismissed D.C. Code § 22-3133(a)(1) and charged him via information with D.C. Code § 22-3133(a)(3). By dismissing D.C. Code § 22-3133(a)(1) and then charging with D.C. Code § 22- 3133(a)(3), Mr. Giovannelli himself is admitting that Mr. Keerikkattil did not know that he was committing any potentially unlawful conduct, but he should have known by reference to whether someone else who is aware of the same facts and circumstances would have known it, a convoluted and much lesser mens rea than “with the intent to cause” stalking pursuant to D.C. Code § 22- 3133(a)(1). Coleman v. United States, 202 A.3d 1127, 1143 (D.C. 2019) (explaining “should have known” standard with regards to D.C. Code § 22-3133). In the context of vehicular death, this difference is analogous to intentionally running a person over “with the intent to cause” death (first degree felony homicide) compared to accidentally running a person “should have known” that driving while tired may cause death (reckless driving misdemeanor at best). This very important fact was intentionally omitted by Mr. Giovannelli in his defamatory public statement. Given that the charge he was accused of was a single count misdemeanor, he was not required to surrender his U.S. Passport in Court either. In fact, he had extensively travelled outside the United States (at a minimum 10 times) between 2016 and July 2018 on his U.S. Passport. Mr. 3 Keerikkattil had appeared a minimum of 20 times in D.C. Superior Court in this case prior to July 10, 2018, while this case was tossed around from one date to another and from one judge to another, and has never failed to appear on any of the court dates. II. Mr. Giovannelli’s Intentional and Malicious Overcharging of Mr. Keerikkattil Mr. Keerikkattil has absolutely no doubt that Mr. Giovannelli has intentionally and maliciously overcharged3 a petty misdemeanor BRA charge into a felony. Mr. Keerikkattil has extensively researched the BRA statute, its legislative history, the Court of Appeals decision in Lennon v. United States, 736 A. 2d 208, 209 (D.C. 1999) and other relevant documents, and has personally drafted the attached Emergency Motion to Dismiss. D.C. Code § 23-1327 was created by Congress in 1970 and has the exact same language as 18 U.S.C. § 3150, created under the Bail Reform Act of 1966, Public Law 89-465, 80 Stat. 216. Public Law 91-358, 84 Stat. 650 explicitly states that the provisions of the subchapter including § 23-1327 is “in lieu of the provisions of sections 3146 through 3152 of title 18, United States Code.” The D.C. Council has made no changes to the language of D.C. Code § 23-1327 since inheriting the statute from Congress and Congress has clarified that the BRA penalty for a misdemeanor is a misdemeanor. In fact, the Testimony of Jeffrey Harris, Deputy Associate Attorney General, on behalf of Department of Justice before Congress in 1983 and the statement of US Attorney’s Office before the Court of Appeals in Lennon regarding Congressional intent of the BRA statute also states that the BRA penalty for a misdemeanor is a misdemeanor. It is also relevant to note that US Attorney’s Office relied on Congressional intent, not the intent of the D.C. Council. This is because the D.C. Council has not amended the statute since its inheritance, as stated before. The 3 Vertical overcharging refers to charging an offense at a higher level than what the circumstances of the case and the statute warrants. See H. Mitchell Caldwell, Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System, 61 CATH. U. L. REV. 63, 85 (2011). 4 rule of lenity in case of any ambiguity (which there is none) and Eighth Amendment also dictates that the BRA penalty for a misdemeanor should be a misdemeanor. Mr. Giovannelli’s attempt to overcharge Mr. Keerikkattil mirrors his former colleague and fellow Deputy Chief of Felony Major Trials Section under Kevin Flynn, the rogue AUSA Jennifer Kerkhoff’s failed attempt to overcharge innocent Trump Inauguration (J20) protesters in United States v. Mielke et.al., 2017-CF2-1149 (D.C. Super. Ct.), with felony "engaging" in a riot charge, despite "engaging" in a riot being a misdemeanor under D.C. Code § 1322. Here, Mr. Giovannelli attempts to create a felony offense by taking statutory words in D.C. Code § 23-1327 in isolation. Of course, statutory words are not to be read in isolation and is determined by a reading of the legislative history or by an examination of the statute as a whole. Abadie v. District of Columbia Contract App. Bd., 843 A.2d 738, 742 (D.C. 2004). To understand how preposterous Mr. Giovannelli’s biased interpretation of the BRA statute is, consider the following scenario – Two Defendants A and B are charged with the same petty misdemeanor with a maximum penalty of six months. Defendant A pleads guilty while Defendant B pleads not-guilty and requests a trial, and both Defendants A and B for some reason fail to appear at a subsequent status hearing. Defendant A faces a felony BRA charge while Defendant B faces a petty misdemeanor BRA charge under his preposterous interpretation by selectively picking words out of D.C. Code § 23-1327(a)(1) in isolation. Mr. Keerikkattil, who has extensively researched and drafted the Emergency Motion to Dismiss is 100% confident in the merits of his arguments. The only scenario where Mr. Giovannelli might temporarily prevail (until appeal) is judicial bias and/or incompetence. The scenario of judicial bias is real given since The Honorable James A. Crowell IV, who may very 5 likely preside over this case, is not only a career federal prosecutor, but also was the Director of the Executive Office for United States Attorneys4. III. Mr. Giovannelli’s Falsities, Abusive Behavior and Racism Any doubts regarding his malicious intent were clarified when a racist Mr. Giovannelli lied to The Honorable Robert Salerno on September 14, 2018 that Mr. Keerikkattil is an “Indian National”5, not once but twice, despite him being only a U.S. Citizen. In addition, he also lied to Judge Salerno that Mr. Keerikkattil had fled to India and informed him that he is working to extradite Mr. Keerikkattil from India on a single count misdemeanor charge. Mr. Keerikkattil contacted the Ministry of Home Affairs with the Government of India and enquired about any formal extradition requests made through diplomatic channels. They received no such requests from the U.S. Government. Mr. Keerikkattil was further alarmed when he learned that Mr. Giovannelli is a wife abuser, whose former spouse Lori Ann Eshbaugh (formerly Lori Ann Giovannelli) had sued him in 20166 for his continuing abusive conduct, six years after she had dumped and divorced him in 20107. He also learned that as a consequence of Mr. Giovannelli’s abuse, Ms. Eshbaugh, an MBA graduate from Temple University, was unable to continue her professional business career and ended up as an art teacher at Thoreau Middle School8. Mr. Kerikkattil was so concerned about Mr. Giovannelli murdering his estranged ex-wife that he ended up reaching out to local law enforcement in Virginia. The ironic example of Mr. Giovannelli, a serial wife abuser, accusing Mr. 4 https://www.dccourts.gov/sites/default/files/2022-01/DCSC_Bio_Crowell.pdf 5 The Indian Constitution prohibits dual nationality and hence Mr. Keerikkattil can never be an Indian National as long as he is a U.S. Citizen. See https://www.indianembassyusa.gov.in/Publicind?id=9. In fact, he has an Indian Visa on his U.S. Passport. 6 Lori Eshbaugh v. John Giovannelli, Case No. CL10000927 (Prince William County Cir. Ct, 2016) 7 Lori Giovannelli v. John Giovannelli, Case No. CL04087916 (Prince William County Cir. Ct, 2009) 8 https://thoreaums.fcps.edu/staff/lori-eshbaugh 6 Keerikkattil of a single count of misdemeanor “should have known” stalking is like a serial bank robber accusing him of petty theft. Mr. Giovannelli’s actions are quite ironic. First, he issues a threatening public release alerting Mr. Keerikkattil of his malicious indictment and explicitly threatens arrest to dissuade him from returning to the United States. Then he goes and lies to Judge Salerno that he is an “Indian National” (which he is not, as the Indian Constitution prohibits dual nationality) and is working to extradite him from India and that too on a misdemeanor, despite Mr. Keerikkattil not being there but in UK and Australia. Finally, he makes no attempt whatsoever to extradite him for four years and now objects to Mr. Keerikkattil’s return back to the U.S. All he had to do was to not publish that public release and seal the indictment that even other AUSA does, rather than having to waste time and money on a tedious and expensive extradition process. With regards to Mr. Giovannelli’s racist views on Indian-Americans and his repeated references to “Indian National”, Mr. Keerikkattil would like to remind him that Indian- Americans have the highest percent of college, post-graduate and professional degrees, highest median per-capita and household incomes, and lowest poverty rate among all ethnic groups in the United States9, rather than being mafioso cop killers (Frederico “Fritzy” Giovannelli10) and child predator priests (Cameron Shane Giovannelli11). Needless to say, Mr. Giovannelli is himself the son of a bus driver (Frank Geno Giovannelli) and borrowing his own racist language, an embodiment of ‘Italian White Trash’, who always had a heightened inferiority complex as the progeny of ‘Italian Trash’ dumped on American shores 9 See attached U.S. Census Data 10 https://nypost.com/2001/08/02/soprano-capo-sang-to-mob-pals-feds/ 11 https://www.baltimoresun.com/news/crime/bs-md-cr-dundalk-pastor-plea-20191204- u2kkzndzjnh55alihjhh67tgi4-story.html 7 and a graduate of bottom-tier University of Pittsburgh law school unlike his colleagues, that was apparently unknowingly triggered by Mr. Keerikkattil – the primary motive behind the demeaning and defamatory public release on July 12, 2018, that even other AUSAs find shocking. Mr. Keerikkattil firmly believes that all Americans – white or colored, straight or LGBT, rich or poor, should be equal before the law and deserve equal protection under the law. IV. Mr. Giovannelli’s Violation of PA Rules of Professional Conduct Mr. Giovannelli, a member of Pennsylvania Bar (Attorney ID: 56724), is ethically and legally bound to follow Pennsylvania Bar’s Rules of Professional Conduct12, the violations of which would lead to disciplinary action including disbarment. The Rules of Professional Conduct include: 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 3.8 Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; … (e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. Mr. Giovannelli, a member of Pennsylvania Bar (Attorney ID: 56724), by (i) making materially false statements in D.C. Superior Court; (ii) intentionally and maliciously 12 http://www.padisciplinaryboard.org/for-attorneys/rules/rule/3/the-rules-of-professional-conduct 8 overcharging a BRA petty misdemeanor into a felony; and (iii) publishing a threatening, defamatory public release fraudulently in the guise of US Attorney, that served no legitimate law enforcement purpose and was merely intended to humiliate, intimidate, heighten public condemnation and deny Mr. Keerikkattil a fair trial, has violated Rules 3.3(a)(1), 3.8(a) and 3.8(e) of Pennsylvania Bar’s Rules of Professional Conduct. V. Disbarment of Trial Counsel Bernard Grimm Mr. Keerikkattil had to face significant verbal abuse from his trial counsel Bernard Grimm (“Mr. Grimm”), who was disbarred by the D.C. Court of Appeals on June 17, 202. See IN RE GRIMM, 252 A.3d 486 (D.C. 2021). Mr. Grimm was disbarred for verbally abusing his clients when questioned of his incompetence, embezzling client funds using abusive and potentially fraudulent billing practices and his extreme incompetence in managing client funds. As stated in the complaint filed with the D.C. Office of Disciplinary Counsel against Mr. Grimm, Mr. Keerikkattil had requested him to file a motion for Bill of Particulars, pursuant to Super. Ct. Crim. R. 7(f), identifying with specificity, all occurrences that constitute the course of conduct that the government alleges constitute stalking pursuant to D.C. Code § 22-3133(a)(3). He also requested Mr. Grimm to file pre-trial motions to exclude all “constitutionally protected activity” under D.C. Code § 22-3133(b), inadmissible immunized testimony pursuant to D.C. Code § 16–1002 and Aiken v. U.S., 956 A.2d 33 (D.C. 2008) (applying Kastigar v. United States, 406 U.S. 441 (1972) to CPO testimony) warning him of Mr. Giovannelli overwhelming him at trial. Not only did he fail to do all of the above, eventually making a mess of the case, Mr. Grimm verbally abused him for raising Strickland13 concerns regarding his competence. Mr. Keerikkattil also uncovered abusive, if not fraudulent billing practices of Mr. Grimm using untrained and inexperienced 13 Strickland v. Washington, 466 U.S. 668 (1984) 9 individuals as associates and law clerks. Mr. Grimm’s professional misconduct and the basis for his disbarment is explained in detail in his D.C. Office of Disciplinary Counsel Complaint. As the Court of Appeals ruled in Aiken, the failure to exclude immunized testimony pursuant to D.C. Code § 16–1002 or Kastigar is in itself grounds for reversal of any maliciously obtained guilty verdicts. Aiken, 956 A.2d at 49 (“any defense attorney should appreciate that the prosecution must not use a defendant's immunized testimony or derivative evidence against him. The attorney's ignorance of Section 16-1002(c) or Kastigar is no excuse for doing nothing to protect the defendant from such use.”). VI. Stacy Sawin’s Malicious Intent Behind Her Fabricated Stalking Accusation Newly discovered evidence made on the publicly available website Medium by Stacy Sawin (“Ms. Sawin”), the complainant behind the “should have known” stalking charge, explicitly demonstrates that she had a hatred of men since a young age14, used to scheme against men and has always been attention seeker contradicting her prior assertions. She also claimed to be a superwoman and hardcore feminist who had the courage to hike solo more than 2,600 miles solo that hardly any men much less woman had the courage to do. Moreover, she has used this case for her own economic and professional benefit creating a business named Finability (or perhaps more appropriately Stalking Inc.), publishing false and defamatory statements on her Finability website and continues to solicit funds from donors claiming to be its CEO15. Being a victim himself, Mr. Keerikkattil is outraged by Ms. Sawin using him and this case for publicity and financial benefits. Mr. Keerikkattil was alarmed and distressed when Ms. Sawin followed him more than 4,000 miles to London, UK in 2019, residing less than a mile from him. Mr. Keerikkattil, by sheer coincidence saw Ms. Sawin and as a consequence, had to change his routines in order to avoid 14 https://medium.com/@Stacysawin/you-were-right-34ea61a92522 15 https://www.finabilityus.org/founding-finability/stacy 10 contact with her. Mr. Keerikkattil also learned from court transcripts that Mr. Giovannelli had fabricated non-existence threats against Ms. Sawin and the purpose of the hearing on June 10, 2018, for which he is accused of failing to appear, was to restrict his movement around Ms. Sawin in Washington D.C. Mr. Keerikkattil at the time, was living in Baltimore County, Maryland, more than 50 miles away from Ms. Sawin. Mr. Giovannelli, thru his malicious conduct had reduced that distance to less than a mile. The fact that nothing happened to Ms. Sawin between August 2019 and January 2020 in London, when Mr. Keerikkattil was less than a mile away, proves that the hearing on June 10, 2018 was based on falsities and misrepresentations made by Mr. Giovannelli to the Court. Mr. Keerikkattil, who was extremely concerned with Ms. Sawin framing him on frivolous charges like Amy Dunne in Gone Girl, moved more than 10,000 miles away from London to Sydney, Australia in January 2020. It became obvious that Ms. Sawin wasn’t merely a case of ‘Munchausen Syndrome’, but a cunning and calculating ‘femme fatale’, who would go to any extremes for her perverted goals. Mr. Keerikkattil has always pursued a defensive strategy and has actively sought to avoid confrontation with Ms. Sawin. Mr. Keerikkattil has neither been accused of any acts of violence nor any threats of acts of violence. Mr. Giovannelli instead has couched multiple instances of protected speech and conduct under the first amendment as stalking. In fact, the act of Mr. Keerikkattil drinking coffee from a public coffee shop at a walking distance from his residence in Rosslyn, VA in July 2015 is stalking for him. He also lied to the Court on July 9, 2018, that Mr. Keerikkattil was residing in Maryland in July/August 2015, when he was actually residing in Arlington, VA, evidenced by the lease agreement and two witnesses – the landlady Janet Moran and his housemate Daniel Stahl. 11 Since July 2018, the D.C. Court of Appeals has issued two judgements in Coleman v. United States, 202 A.3d 1127 (D.C. 2019) and Mashaud v. Boone, 256 A.3d 235 (D.C. 2021) limiting the abuse of D.C.’s vague and overbroad should have known stalking statute akin to Mr. Giovannelli’s persecution. Both Coleman and Mashaud apply to this case under the firm rule of retroactivity in D.C. See Davis v. Moore, 772 A.2d 204, 226 (D.C. 2001). VII. The Threat to Mr. Keerikkattil’s Life Mr. Keerikkattil faces significant deterioration of health or even death. Among his numerous medical conditions, he is particularly concerned with his severe Obstructive Sleep Apnea (OSA) with an extremely high Apnea Hypopnea Index (AHI) – the number of times breathing stops within an hour. He uses a Continuous Positive Airway Pressure (CPAP) device on a daily basis to bring his AHI under control, without which the high AHI would lead to hypoxia and potentially death. His AHI is extremely high and is four times the level that is considered severe (AHI > 30). Mr. Keerikkattil was advised by his doctors in Australia not to travel to the United States where COVID-19 pandemic was widespread, given that his medical conditions made him extremely vulnerable to hospitalization and death due to COVID-19. On May 30, 2022, he tested positive to COVID-19 and had to be hospitalized and treated with antivirals for high-risk patients despite being vaccinated with four shots of Pfizer COVID-19 vaccine. Even after more than five weeks, he continues to suffer from extreme fatigue and brain fog from COVID-19 infection. He has no doubt that he would have been dead had he travelled to the United States and contracted COVID-19 before being fully vaccinated. Mr. Keerikkattil has already confirmed the existence of the bench warrants threatened by Mr. Giovannelli in NCIC with the U.S. Consulate in Sydney. There are no non-stop flights between 12 Australia and Washington D.C area airports. The only flights are to Los Angeles (LAX) and San Francisco (SFO) in California, Dallas (DFW) in Texas and Honolulu (HNL) in Hawaii. These warrants would get picked up by U.S. Customs & Border Patrol (CBP) at the port of entry leading to his detention in California, Hawaii or Texas for weeks or even months pending removal to Washington D.C. The CBP officers unaware of Mr. Keerikkattil’s medical history would fail to provide him access to CPAP, which also requires a power source for its functioning. Mr. Keerikkattil’s UNOHCHR Communication includes detailed medical records as well as the threat to his life, physical and mental health from Mr. Giovannelli. The U.S. and Australian Governments were notified of the UNOHCHR Communication through the U.S. Consulate in Sydney and Australian Department of Home Affairs respectively in April. The communication explicitly states: Should Mr. Keerikkattil suffer from serious deterioration in health, hospitalization or death after returning to the United States, John Giovannelli in his individual capacity would be liable. In addition, the Chief of the Superior Court Division as well as the United States Attorney for the District of Columbia would be liable in their official capacities for knowingly permitting Mr. Giovannelli’s continued abuse and harassment and violating Mr. Keerikkattil’s Fourth and Eighth Amendment rights under the U.S. Constitution. (emphasis in original). Mr. Keerikkattil would not be the first victim of death by overcharging committed by the U.S. Department of Justice. The most infamous case is the death of Aaron Schwartz,16 caused by the prosecutorial abuse, harassment and overcharging by AUSA Stephen P. Heymann17. Mr. Keerikkattil was not required to surrender his U.S. Passport in Court and had it not been for Mr. Giovannelli’s extremely concerning public threats, he would have been back in the 16 https://www.smh.com.au/technology/aaron-swartz-a-beautiful-mind-20140127-31hjr.html 17 https://www.latimes.com/nation/la-xpm-2013-jan-15-la-na-nn-aaron-swartz-funeral-eulogy-father-20130115- story.html 13 U.S. by July 16, 2018. Mr. Giovannelli also made no efforts to extradite Mr. Keerikkattil for years, despite threatening so in Court. Despite all of this and the fact that it is Mr. Keerikkattil is the one who had taken the initiative to resolve this matter, it is extremely likely that Mr. Giovannelli would again lie to the Court that Mr. Keerikkattil is a flight risk and that he needs to be detained at D.C.’s Central Detention Facility (CDF) or D.C. Jail. Detainees, defense attorneys, counselors and employees alike have testified before the D.C. Council that the CDF is a dehumanizing place where Defendants are treated like animals and subject to abuse, terror and retaliation, prompting the US Marshals Service (USMS) to intervene and enter into an agreement with D.C. Department of Corrections to address the pervasive human rights violations at CDF. Even more alarming is the testimony of the Public Defender Service of D.C. that about 87% of the D.C. jail population is black, and 93% of the jail population is non-white. 43% of D.C.’s population18 is white, while its white jail population is a mere 7%. This unambiguously demonstrate the race-based persecution of non-white individuals by racist white AUSAs such as Mr. Giovannelli. In fact, multiple AUSAs including three former US Attorneys have written a very concerning letter to the US Attorney Michael Sherwin on October 26, 2020, concerning the systemic racial persecution of people of color by his office. The differential and discriminatory nature prosecutions by USAO-DC is evidenced by the haste in overcharging innocent Trump Inauguration (J20) protesters with multiple felonies of up to 60 years in prison, while being hesitant to charge the mostly white criminals involved in the January 6, 2021 Capitol Riots responsible for 5 deaths. Following extensive public and media pressure, the USAO-DC eventually charged the white criminals with much lesser offenses than 18 https://www.dchealthmatters.org/demographicdata 14 the J20 protests with the former US Attorney Michael Sherwin downplaying the criminal conduct of rioters and watering down charges against them. This is perfectly illustrated by the example of Jacob Anthony Chansley, more famously known as the “QAnon Shaman”, who received a mere 41 months sentence19, despite the Justice Department stating Chansley had the intent to “capture and assassinate elected officials in the United States government” and “committed felonies involving the use of a dangerous weapon”. The Trump Inauguration (J20) protesters neither carried dangerous weapons nor intended to assassinate United States government officials, but faced multiple felonies of up to 60 years in prison. So much for the integrity of USAO-DC. The fact that rogue prosecutors are promoted instead of fired for prosecutorial misconduct within the Superior Court Division of USAO-DC is extremely concerning. Mr. Giovannelli’s former colleague and fellow Deputy Chief of Felony Major Trials Section, and rogue AUSA Jennifer Kerkhoff, who engaged in malicious overcharging and concealment of exculpatory evidence (Brady20 violation) in the Trump Inauguration (J20) case, leading to sanctions from D.C. Superior Court Chief Judge Morin and dismissal of all charges in embarrassment21, was promoted as the Chief of Felony Major Trials Division22 succeeding Kevin Flynn. At the same time, honest prosecutors at USAO-DC such as AUSA Aaron Zelinsky, AUSA Aaron Zelinsky, who refused to compromise his integrity in the Roger Stone Wikileaks case, are sidelined or forced to resign. In his testimony before the House Judiciary Committee, AUSA Zelinsky stated23: What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President. I was told that the Acting U.S. Attorney for the District of Columbia, Timothy Shea, was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break, and that the U.S. 19 https://www.pbs.org/newshour/nation/jan-6-rioter-known-as-qanon-shaman-sentenced-to-41-months 20 Brady v. Maryland, 373 U.S. 83 (1963) 21 See e.g. United States v. Mielke et.al., 2017-CF2-1149 (D.C. Super. Ct.) 22 https://www.rightsanddissent.org/news/lead-prosecutor-in-trump-inauguration-protest-trial-sanctioned-for-due- process-violations-has-been-made-head-of-her-department/ 23 https://judiciary.house.gov/uploadedfiles/zelinsky_opening_statement_hjc.pdf 15 Attorney’s sentencing instructions to us were based on political considerations. I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was “afraid of the President.” Zelinsky Testimony at 2. In other words, ass-kisser AUSAs in USAO-DC get promoted, while honest AUSAs get sidelined and punished. The only reason why Mr. Keerikkattil is still stuck in Australia is because of Mr. Giovannelli. Mr. Keerikkattil has been diligent, obtained case transcripts, researched caselaw, drafted the attached motions and hired counsel in D.C. to represent him. Mr. Giovannelli has stated that he intends to oppose these motions confirming the obvious fact he was more interested in threatening and defaming Mr. Keerikkattil with a public release, making extradition threats in Court, waste taxpayer money and harassing him as much as he can. In addition, the CMD misdemeanor bench warrant that Mr. Giovannelli opposes quashing, remained suspended for more than two years since March 2020, based on orders of the Chief Judge of D.C. Superior Court. Mr. Keerikkattil is outraged that the government he had worked for, has failed to protect him from persecution based on his race and ethnicity. Due to the threat of prosecution under Intelligence Identities Protection Act of 1982 (50 U.S.C. §§ 421 et seq.), he is unable to comment more on his work for the United States, except providing the attached redacted passport excerpts that documents some of his trips to China, Russia and the Middle East. Mr. Keerikkattil prior to being in Australia and the UK, worked for General Dynamics. Hence, it is indeed quite a coincidence that one of the primary beneficiaries of AUKUS defense deals is General Dynamics, the primary contractor for Virginia Class Nuclear Attack Submarines24 (General Dynamics Electric Boat) and M1A2 Abrams Tanks25 (General Dynamics Land Systems). 24 https://twitter.com/peterdutton_mp/status/1440092245009461253?lang=en; https://www.sbs.com.au/news/article/australia-planned-to-buy-us-nuclear-submarines-peter-dutton-says/c9ui4p9q6 25 https://www.minister.defence.gov.au/minister/peter-dutton/media-releases/enhancing-adfs-armoured-combat- capability 16 The former U.S. President John F. Kennedy in his inaugural address famously stated: “Ask not what your country can do for you – ask what you can do for your country”. Mr. Keerikkattil asks his daughter and the recently appointed U.S. Ambassador to Australia26 Caroline Kennedy, “What is my country and you doing to protect my life from the racist, egomaniac, wife abuser AUSA John Giovannelli?” Mr. Keerikkattil indeed, expects continuing retaliation from Mr. Giovannelli and his cronies within the USAO-DC. Mr. Keerikkattil can be reached via E-mail: [email protected] and Phone: +61 434258952 for further comments. 26 https://www.theaustralian.com.au/nation/caroline-kennedy-swornin-as-us-ambassador-to-australia/news- story/3950dbf7884a56b6c20a905444d62551 17 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION UNITED STATES OF AMERICA : : : v. : Case No. 2018-CF2-010309 : : RANJITH KEERIKKATTIL : ________________________________________________________________________ DEFENDANT’S EMERGENCY MOTION TO DISMISS Defendant, Ranjith Keerikkattil, pursuant to his Fifth Amendment right to Due Process, his Sixth Amendment right to a Fair Trial, Eight Amendment protection against cruel and unusual punishments and excessive bail, and Super. Ct. Crim. R. 12(b)(1) and (b)(3), respectfully moves the Honorable Court to respectfully move to dismiss the indictment returned on July 11, 2018. Mr. Keerikkattil also respectfully requests the Honorable Court to dismiss the felony bench warrant issued in this matter dated July 23, 2018. Mr. Keerikkattil requests a hearing on this motion. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION Defendant, Ranjith Keerikkattil (“Mr. Keerikkattil”), pursuant to his Fifth Amendment right to Due Process, his Sixth Amendment right to a Fair Trial, Eight Amendment protection against cruel and unusual punishments and excessive bail, and Super. Ct. Crim. R. 12(b)(1) and (b)(3)(B), respectfully moves the Honorable Court to respectfully move to dismiss the unlawful and potentially maliciously obtained indictment returned on July 11, 2018. Whether a failure to appear charge based on alleged failure to appear at a status hearing for a misdemeanor charge is a misdemeanor or a felony, is a question of law and not fact. Given that D.C. Code § 23-1327, the Court of Appeals and legislative history state that a failure to appear charge based on an underlying misdemeanor charge is a misdemeanor and hence fails to state a felony offense, a motion to dismiss pursuant to Super. Ct. Crim. R. 12(b)(1) and (b)(3)(B) is appropriate. Mr. Keerikkattil also respectfully requests the Honorable Court to dismiss the felony bench warrant issued in this matter dated July 23, 2018. Emergency consideration of this motion is requested since the government is attempting to prosecute Mr. Keerikkattil on a felony that is actually a misdemeanor under D.C. law, thereby violating his Fifth, Sixth and Eighth Amendment rights. The government’s attempt to overcharge Mr. Keerikkattil mirrors its failed attempt to overcharge Trump inauguration protesters in United States v. Mielke et.al., 2017-CF2-1149 (D.C. Super. Ct.), with felony "engaging" in a riot charge, despite "engaging" in a riot being a misdemeanor under 22 D.C. Code § 1322. See Ex. 1. The Honorable Lynn Leibovitz of this Court ruling on Defendants’ Motion to Dismiss, entered an order reducing the charge from a felony to misdemeanor. Unlike the ambiguity with the legislative history of D.C.’s rioting statute that was resolved in favor of Defendants by Judge Leibovitz, the legislative 2 history of BRA statute unambiguously demonstrates that Congress always intended the BRA penalties for a misdemeanor charge to be a misdemeanor. INTRODUCTION In a typical failure to appear case, the defendant fails to appear on a given charge and the court issues a bench warrant for failing to appear on that charge. The defendant subsequently either (i) gets arrested on the bench warrant; or (ii) quashes the bench warrant and voluntarily appears in court. That’s when the government brings a failure to appear (often referred to as Bail Reform Act or “BRA”) charge based on whether the defendant’s absence was willful1 on not. BACKGROUND Mr. Keerikkattil was charged via summons and released in connection with a single count of misdemeanor. See United States v. Keerikkattil, 2015-CMD-17652 (D.C. Super. Ct.). Mr. Keerikkattil has never been charged with any felony charges in D.C. Superior Court (or any jurisdiction) prior to this matter. On July 11, 2018, AUSA John Giovannelli (“Mr. Giovannelli”) hastily obtained a felony failure to appear charge against him, despite the fact that D.C. Code § 23-1327, the Court of Appeals in in Lennon v. United States, 736 A. 2d 208 (D.C. 1999) and the failure to appear legislative history state that the penalty for failure to appear on a misdemeanor charge is a misdemeanor. ARGUMENT Under Superior Court Rule of Criminal Procedure 12(b)(3)(B), the court must dismiss a charge if it “fail[s] to state an offense.” Super. Ct. Crim. R. 12(b)(3)(B). A charge fails to 1 D.C. Code § 23-1327 explicitly states “willfully fails to appear”. 3 state an offense, inter alia, when the allegations, if proven, are insufficient to establish that the charged crime was committed, United States v. Sanford, Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012). Here, the government charges Mr. Keerikkattil with a felony failure to appear charge pursuant to D.C. Code § 23-1327(a)(1), despite the fact that he was never “released in connection with a charge of felony” that the statute requires. Rather he was “released in connection with a charge of misdemeanor” pursuant to D.C. Code § 23-1327(a)(2), a misdemeanor. Under Superior Court Rule of Criminal Procedure 12(b)(1), a “party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Super. Ct. Crim. R. 12(b)(1). Hence this motion is also made pursuant to Super. Ct. Crim. R. 12(b)(1), since the court does not require a trial on the merits to determine that a failure to appear charge based on “released in connection with a charge of misdemeanor” is not a felony as this is a question of law and not fact. I. The failure to appear charge based on a misdemeanor charge is a misdemeanor and not felony When interpreting statutory language, courts must first look to the plain language of a statute to determine its meaning, and favor interpretations consistent with the plain language. Artis v. District of Columbia, 135 A.3d 334, 337 (D.C. 2016)). The primary and general rule of statutory construction is that the intent of the lawmaker is to be found the language that he has used. Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc). The court is to interpret the words used by the legislature according to their ordinary sense and with the meaning commonly attributed to them. Id. The relevant portion of D.C. Code § 23-1327 reads as follows: (a) Whoever, having been released under this title prior to the commencement of his sentence, willfully fails to appear before any court or judicial officer as 4 required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari prior to commencement of his sentence after conviction of any offense, be fined not more than the amount set forth in [§ 22-3571.01] and imprisoned not less than one year and not more than five years, (2) if he was released in connection with a charge of misdemeanor, be fined not more than the amount set forth in [§ 22-3571.01] and imprisoned for not less than ninety days and not more than 180 days, or (3) if he was released for appearance as a material witness, be fined not more than the amount set forth in [§ 22-3571.01] or imprisoned for not more than 180 days, or both. In this case, by its plain language, D.C. Code § 23-1327 provides for separate felony and misdemeanor charges and penalties according to whether the defendant was released "in connection with a charge of felony [or] . . . a charge of misdemeanor,". Id. This means misdemeanor penalties apply pursuant to D.C. Code § 23-1327(a)(2) for willfully failing to appear if released “in connection with a charge of a misdemeanor” and felony penalties apply pursuant to D.C. Code § 23-1327(a)(1) for willfully failing to appear if released “in connection with a charge of a felony”. The D.C. Court of Appeals has also unambiguously addressed this matter in Lennon v. United States, 736 A. 2d 208, 209 (D.C. 1999). Because the underlying charge of assault with a dangerous weapon was a felony, the BRA violation was also chargeable as a felony. See D.C. Code § 23-1327(a)(1). If a defendant who fails to appear was originally charged with a misdemeanor, the BRA violation is also a misdemeanor. See D.C. Code § 23-1327(a)(2). Id. at n.2. In fact, the government itself argued before the Court of Appeals that the penalty for a violation of D.C. Code § 23-1327 is in accordance with whether the defendant was released on a charge of felony or misdemeanor. 5 The government, citing the penalty provisions, contends that the statutory language shows that the unit of prosecution is the individual charge for which the defendant failed to appear. It argues that because the statute sets the penalty for a violation according to whether the defendant was released "in connection with a charge of felony [or] . . . a charge of misdemeanor," Congress intended the unit of prosecution to be the underlying charge or charges for which the defendant failed to appear. Lennon, 736 A. 2d at 210. Since the BRA charge against Mr. Keerikkattil is based on United States v. Keerikkattil, 2015-CMD-17652 (D.C. Sup. Ct.), where the CMD (as compared to CF) unambiguously demonstrates that he was released “in connection with a charge of a misdemeanor”, the failure to appear charge against him would also a misdemeanor or more accurately a petty misdemeanor 2 since the maximum penalty for a failure to appear misdemeanor charge is 180 days pursuant to D.C. Code § 23-1327 (a)(2). In addition, the Court has always cited the misdemeanor failure to appear penalties during past almost 20 hearings. II. Legislative history demonstrates that Congress has always intended the penalties for failure to appear on a misdemeanor to be a misdemeanor Statutory words are not to be read in isolation. A court may refuse to adhere strictly to the plain wording of a statute in order to effectuate the legislative purpose, as determined by a reading of the legislative history or by an examination of the statute as a whole. Abadie v. District of Columbia Contract App. Bd., 843 A.2d 738, 742 (D.C. 2004). 2 “It has long been settled that ‘there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.’” Blanton v. City of N. Las Vegas, 489 U.S. 538, 541 (1989) (quoting Duncan v. Louisiana, 391 U.S. 145, 159 (1968)). “[O]ffenses for which the maximum period of incarceration is six months or less are presumptively ‘petty.’” United States v. Nachtigal, 507 U.S. 1, 3 (1993) (quoting Blanton, 489 U.S. at 541). 6 The D.C. failure to appear statute was created by Congress under the District of Columbia Court Reform and Criminal Procedures Act of 1970, Public Law 91-358, 84 Stat. 648 that states: "23-1327. Penalties for failure to appear "(a) Whoever, having been released under this title prior to the commencement of his sentence, willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari prior to commencement of his sentence after conviction of any offense, be fined not more than $5,000 and imprisoned not less than one year and not more than five years, (2) if he was released in connection with a charge of misdemeanor, be fined not more than the maximum provided for such misdemeanor and imprisoned for not less than ninety days and not more than one year, or (3) if he was released for appearance as a material witness, be fined not more than $1,000 or imprisoned for not more than one year, or both. In addition, Public Law 91-358, 84 Stat. 650 explicitly states that the provisions of the subchapter including 23-1327 is “in lieu of the provisions of sections 3146 through 3152 of title 18, United States Code.” "23-1332. Applicability of subchapter "The provisions of this subchapter shall apply in the District of Columbia in lieu of the provisions of sections 3146 through 3152 of title 18, United States Code. Hence, it is unambiguous that Congress intended D.C. Code § 23-1327 in lieu of federal failure to appear statute codified as 18 U.S.C. § 3150 in 1970. 18 U.S.C. § 3150 was created under the Bail Reform Act of 1966, Public Law 89-465, 80 Stat. 216 and has the exact same language as D.C. Code § 23-1327. Under the Bail Reform Act of 1984, Congress replaced 18 U.S.C. § 3150 with 18 U.S.C. § 3146 in Public Law 98-473, 98 Stat.1983. "3146. Penalty for failure to appear "(b) GRADING. — If the person was released— 7 "(1) in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction, for— "(A) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more, he shall be fined not more than $25,000 or imprisoned for not more than ten years, or both; "(B) an offense punishable by imprisonment for a term of five or more years, but less than fifteen years, he shall be fined not more than $10,000 or imprisoned for not more than five years, or both; "(C) any other felony, he shall be fined not more than $5,000 or imprisoned for not more than two years, or both; or "(D) a misdemeanor, he shall be fined not more than $2,000 or imprisoned for not more than one year, or both; or "(2) for appearance as a material witness, he shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Senate Committee on the Judiciary Report on the Comprehensive Crime Control Act, of which the Bail Reform Act creating 18 U.S.C. § 3146 is a part, stated: Under current 18 U.S.C. 3150, the penalties for bail jumping are a $5,000 fine and five years of imprisonment, where the defendant was released in connection with a felony charge, and a fine of $1,000 and one year of imprisonment, where the defendant was released in connection with a misdemeanor or in the case of a failure to appear as a material witness. The Department of Justice strongly urged that the penalties for bail jumping be amended to more closely parallel the penalties for the offense in connection with which the defendant was released. [FN117]. S. Rep. No. 225, 98TH Cong., 1st Sess. (1983), 1983 WL 25404 at *33. [FN117] is the Testimony of Jeffrey Harris, Deputy Associate Attorney General, on behalf of Department of Justice, which in relevant parts, state: One of the ways in which the law seeks to deter flight to avoid prosecution is by making bail jumping a separate punishable offense (18 U.S.C. 3150). Under current law the maximum penalty for bail jumping is five years' imprisonment if the offense originally charged was a felony, and one year's imprisonment if the offense originally charged was a misdemeanor. Test. at 18. All three bills would leave unchanged the current penalties for bail jumping: up to five years’ imprisonment where the originally charged offense was a felony and up to one year's imprisonment where the original offense was a misdemeanor. As I noted in the first part of my statement, the Department advocates a readjustment of the penalties for bail jumping so that they more closely parallel the penalties for the offense with which the defendant was charged when he was released. Test. at 30. 8 See Ex. 2 Hence, the Senate Committee on the Judiciary Report, the testimony of Deputy Associate Attorney General, as well as the language of 18 U.S.C. § 3146 unambiguously clarify that: i. Congress, under 18 U.S.C. § 3146 as well as 18 U.S.C. § 3150 and D.C. Code § 23-1327, intended the penalty for failure to appear for a person originally charged with a misdemeanor charge to be a misdemeanor irrespective of whether he was released “in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction”; and ii. Congress incorporated the Deputy Associate Attorney General’s recommendation of “penalties for bail jumping be amended to more closely parallel the penalties for the offense in connection with which the defendant was released”, which also dictates that the penalty for failure to appear for a person originally charged with a misdemeanor charge to be a misdemeanor. In 1986, Congress further amended the failure to appear statute in Public Law 99– 646, 100 Stat. 3610. "(b) PUNISHMENT.— (1) The punishment for an offense under this section is— "(A) if the person was released in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction for— "(i) an offense punishable by death, life imprisonment, or imprisonment for a term of 15 years or more, a fine under this title or imprisonment for not more than ten years, or both; "(ii) an offense punishable by imprisonment for a term of five years or more, a fine under this title or imprisonment for not more than five years, or both; "(iii) any other felony, a fine under this title or imprisonment for not more than two years, or both; or "(iv) a misdemeanor, a fine under this chapter or imprisonment for not more than one year, or both; and 9 "(B) if the person was released for appearance as a material witness, a fine under this chapter or imprisonment for not more than one year, or both. The current failure to appear statute 18 U.S.C. § 3146, identical to the 1986 version, states: (b) Punishment. — (1) The punishment for an offense under this section is- (A) if the person was released in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction for- (i) an offense punishable by death, life imprisonment, or imprisonment for a term of 15 years or more, a fine under this title or imprisonment for not more than ten years, or both; (ii) an offense punishable by imprisonment for a term of five years or more, a fine under this title or imprisonment for not more than five years, or both; (iii) any other felony, a fine under this title or imprisonment for not more than two years, or both; or (iv) a misdemeanor, a fine under this title or imprisonment for not more than one year, or both; and (B) if the person was released for appearance as a material witness, a fine under this chapter or imprisonment for not more than one year, or both. Hence, the legislative history demonstrates that Congress always intended the penalty or punishment for failure to appear for a person released on a misdemeanor charge to be a misdemeanor irrespective of when that person was released – pre-trial, trial, while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction. The only change made by D.C. Council to D.C. Code § 23-1327 since the District of Columbia Court Reform and Criminal Procedures Act of 1970 (Public Law 91-358, 84 Stat. 648), was the 2013 amendment by D.C. Law 19-317, in (a), substituting “not more than the amount set forth in [§ 22-3571.01]” for “not more than $5,000” in clause (1), for “not more than the maximum provided for each misdemeanor” in clause (2), and for “not more than $1,000” in clause (3). D.C. Law 19-317, § 283(g), 60 DCR 2064. Even that amendment was not specific to D.C. Code § 23-1327, but a general criminal fine 10 amendment titled Criminal Fine Proportionality Amendment Act of 2012 applicable to multiple statutes. Hence, by not amending D.C. Code § 23-1327 statute since 1970, the D.C. Council intended to follow congressional intent in the federal failure to appear statute. This is also supported by the explicit reference to the “provisions of the Federal Rules of Criminal Procedure” in D.C. Code § 23-1327(a). III. Rule of lenity also dictates that the penalties for failure to appear on a misdemeanor charge should be a misdemeanor i. The failure to appear legislative history demonstrates that Congress always intended the penalty or punishment for failure to appear for a person released on a misdemeanor charge to be a misdemeanor irrespective of when that person was released – pre-trial, trial, while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction. ii. The D.C. Council, which has not amended the language of failure to appear statute since inheritance from Congress in 1970, intended to follow congressional intent in the federal failure to appear statute, as demonstrated by the explicit reference to the “provisions of the Federal Rules of Criminal Procedure” in D.C. Code § 23-1327(a). iii. D.C. Code § 23-1327, by its plain language, provides for separate felony and misdemeanor charges and penalties according to whether the defendant was released "in connection with a charge of felony [or] . . . a charge of misdemeanor,". Id. iv. The Court of Appeals ruling on the BRA statute stated, “If a defendant who fails to appear was originally charged with a misdemeanor, the BRA violation is also a misdemeanor.” Lennon, 736 A. 2d at 209 at n.2. 11 v. The government also argued before the Court of Appeals that “because the statute sets the penalty for a violation according to whether the defendant was released "in connection with a charge of felony [or] . . . a charge of misdemeanor," Congress intended the unit of prosecution to be the underlying charge or charges for which the defendant failed to appear.” Lennon, 736 A. 2d at 210. vi. Jeffrey Harris’, Deputy Associate Attorney General, on behalf of the Department of Justice testimony before the Judiciary Committee (Ex. 2) stated that the Department recommends BRA penalties parallel to the offense with which the defendant was charged i.e. a misdemeanor BRA penalty for a misdemeanor offense and that it has been always so for Even if the government, contradicting its position before the Court of Appeals, claims that any ambiguity exists with D.C. Code § 23-1327, despite all of the above, “The rule of lenity states that ‘criminal statutes should be strictly construed and that ambiguities should be resolved in favor of the defendant.’” Coleman v. United States, 202 A.3d 1127, 1141 (D.C. 2019) (quoting Whitfield v. United States, 99 A.3d 650, 656 (D.C. 2014)); see also United States v. Bass, 404 U.S. 336, 347 (1971) (stating that the court should apply lenity in cases when, after exhausting all helpful materials, the statute is still ambiguous)). Determining the appropriate unit of prosecution is a question of statutory interpretation, Lennon v. United States, 736 A.2d 208, 210 (D.C. 1999), to which the rule of lenity applies. See Hammond v. United States, 77 A.3d 964, 968 (D.C. 2013); Heard v. United States, 686 A.2d 1026, 1028 (D.C. 1996). 12 Hence, even the rule of lenity dictates that the penalties for failure to appear on a misdemeanor charge should be a misdemeanor. In United States v. Mielke et.al., 2017-CF2-1149 (D.C. Super. Ct.)., the government overcharged Trump inauguration protesters with felony "engaging" in a riot, despite "engaging" in a riot being a misdemeanor under 22 D.C. Code § 1322. See Ex. 1. In attempting to justify its overcharging, the government disagreeing with Defendants’ argument that there is no felony offense arising from "engaging" in a riot under 22 D.C. Code § 1322, claimed that, while the word "engaged" is omitted from section (d) of the statute, based upon a review of the entire rioting statute, its legislative history and the language of section (d), 22 D.C. Code § 1322 permits the government to charge engaging in a riot as a felony, where the requisite property damage or bodily harm is alleged to have resulted. The Honorable Lynn Leibovitz noted that the court may refuse to adhere strictly to the plain wording of a statute in order to effectuate the legislative purpose, as determined by a reasoning of the legislative history or by an examination of the statute as a whole. Unlike the BRA statute, Judge Leibovitz noted that the legislative history of D.C.’s rioting statute was ambiguous and contradictory. Nonetheless, she resolved the ambiguity in favor of Defendants, dismissing the felony charge and reducing it to a misdemeanor stating: Taking the surrounding provisions into account, the legislature knew how to, and did, set forth felony penalties for "inciting" a riot, and, it must be concluded, intentionally omitted a felony penalty for the alternative charge of "engaging" in a riot. In the same way as with D.C.’s rioting statute, the legislature knew how to, and did, set felony penalties under the BRA statute for someone released, or while awaiting 13 sentence, or pending appeal, or certiorari prior to commencement of his sentence after conviction, "in connection with a charge of felony” and intentionally omitted such felony penalties for someone released "in connection with a charge of misdemeanor”. IV. The felony failure to appear charge blatantly violates Mr. Keerikkattil’s Eight Amendment protections The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. Congress clarified its legislative intent and addressed any eighth amendment concerns in the failure to appear statute by: i. Specifying separate felony and misdemeanor penalties based on whether the defendant was released in connection with a charge of felony or a charge of misdemeanor; and ii. Clarifying that the penalties are the same irrespective of whether “the person was released in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction”. The Eighth Amendment prohibits not only barbaric punishments but also sentences that are disproportionate to the crime committed. Solem v. Helm, 103 S.Ct. 3001(1983). Felony failure to appear penalties (of up to 5 years) for a misdemeanor charge is a blatant violation of the “[p]rotection against disproportionate punishment [that] is the central substantive guarantee of the Eighth Amendment,” Montgomery v. Louisiana, 136 S. Ct. 718, 732 (2016). Similarly, excessive failure to appear penalties compared to the underlying charge would also be a violation of Eight Amendment’s prohibition on “excessive bail”. The 1992 D.C. Bail Reform Act specifically targeted 14 what the city’s council at the time recognized as “an over-dependence on cash bond, coupled with delays in bringing defendants to trial [that] resulted in lengthy pretrial detention of too many defendants, a disproportionate number who were poor.”3 As a result, the 1992 Act virtually eliminated the use of money bail in the District. Id. Since the BRA is analogous to the cash bail system that existed before, a felony BRA charge on an underlying misdemeanor charge would also amount to “excess bail” prohibited by the Eight Amendment. Even Virginia, considered to be a much less progressive jurisdiction than D.C., has a failure to appear statute similar to the federal equivalent, explicitly stating that the penalties for failure to appear on a misdemeanor charge is a misdemeanor irrespective of whether the person was “(i) charged with a misdemeanor offense or (ii) convicted of a misdemeanor offense and execution of sentence is suspended”. Code of Virginia Title 19.2. Criminal Procedure Chapter 9. Bail and Recognizances Article 1. Bail § 19.2-128. Penalties for failure to appear A. Whoever, having been released pursuant to this chapter or § 19.2-319 or on a summons pursuant to § 19.2-73 or § 19.2-74, willfully fails to appear before any court or judicial officer as required, shall, after notice to all interested parties, incur a forfeiture of any security which may have been given or pledged for his release, unless one of the parties can show good cause for excusing the absence, or unless the court, in its sound discretion, shall determine that neither the interests of justice nor the power of the court to conduct orderly proceedings will be served by such forfeiture. B. Any person (i) charged with a felony offense or (ii) convicted of a felony offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required shall be guilty of a Class 6 felony. C. Any person (i) charged with a misdemeanor offense or (ii) convicted of a misdemeanor offense and execution of sentence is suspended pursuant to § 19.2- 3 Colin Doyle, Chiraag Bains, and Brook Hopkins, “Bail Reform: A Guide for State and Local Policymakers,” Criminal Justice Policy Program at Harvard Law School, Feb. 2019, pp. 35-36. 15 319 who willfully fails to appear before any court as required shall be guilty of a Class 1 misdemeanor. Similarly, California, which recently attempted to reform its cash bail system similar to the one in D.C., also sets misdemeanor penalty for failure to appear on a misdemeanor charge, irrespective of whether a person is “charged with or convicted of the commission of a misdemeanor”. State of California PENAL CODE Section 1320 1320. (a) Every person who is charged with or convicted of the commission of a misdemeanor who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a misdemeanor. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court. (b) Every person who is charged with or convicted of the commission of a felony who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony, and upon conviction shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment pursuant to subdivision (h) of Section 1170, or in the county jail for not more than one year, or by both that fine and imprisonment. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court. The court should follow the statute, the Court of Appeals and legislative history in this matter and protect Mr. Keerikkattil’s Eighth Amendment rights by dismissing this vertically overcharged4 felony failure to appear A charge. The framers and ratifiers included the Eighth Amendment in the Bill of Rights to ensure judges serve as an integral check and final safeguard “against abuses of government’s 4 Vertical overcharging refers to charging an offense at a higher level than what the circumstances of the case and the statute warrants. See H. Mitchell Caldwell, Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System, 61 CATH. U. L. REV. 63, 85 (2011). 16 punitive or criminal law-enforcement authority.” Timbs v. Indiana, 139 S. Ct. 682, 686 (2019). V. Mr. Keerikkattil is innocent of even a petty misdemeanor BRA charge "To prove a BRA violation, the government must prove that (1) the defendant was released pending trial or sentencing, (2) was ordered to appear in court on a specified date or at a specified time, (3) and willfully failed to appear." Gilliam v. United States, 46 A.3d 360, 369 (D.C. 2012) (citations and quotations omitted). Although '[t]he statute provides that '[a]ny failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is willful,"' id., to establish willfulness "the government must prove ... that the defendant's failure to appear in court when requested was knowing, intentional, and deliberate, rather than inadvertent or accidental." Foster v. United States, 699 A.2d 1113, 1116 (D.C. 1997). Because willfulness is an element of a BRA violation it must be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970) ("the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). The Court’s management of hearings in this case has been always disorganized. On May 10, 2017, two status hearings were scheduled - one on May 15, 2017 and another on May 22, 2017. However, only one Notice to Return to Court was issued. Since there was a status hearing scheduled for May 22, 2017 that was not vacated or cancelled, and for which no notice was provided, a bench warrant was about to be issued for no fault of his own. Mr. Keerikkattil’s Counsel seemed clueless as well. It was only due to his diligence 17 that day that a bench warrant was not issued. The case docket states that the Court had “Scheduled in Error” a hearing for May 22, 2017. On June 27, 2018, Mr. Keerikkattil appeared before the Court as per the previous notice to appear, only to find that the hearing has been continued at the last minute without prior notice, wasting his half a day. As the docket entry clearly states, “Defendant has no sign notice of next court appearance.” 18 Similar to what occurred on May 10, 2017, based on the case docket, the Court on July 9, 2018, apparently entered two dates as the date for the next hearing. This also explains why Mr. Giovannelli, who was in no hurry to prosecute the underlying single count misdemeanor for over two years, was in such a hurry to intentionally and maliciously overcharge Mr. Keerikkattil within hours, with a felony failure to appear charge, before Mr. Keerikkattil realized the date mix-up. In addition, Mr. Keerikkattil had filed a motion for continuance in D.C. Superior Court on the morning of July 9, 2018, seeking continuance for a week, due to pre- planned international travel. The docketed motion with date and time stamp contradicts the government’s claim that he fled after trial, that too, over a single count of “should have known” (not even the greater mens rea “with intent” or “knew”) misdemeanor stalking. See Ex. 3. Mr. Keerikkattil also suffers from Obstructive Sleep Apnea (OSA) which has significant impact on his memory and concentration. In fact, he had discussed “difficulty with memory and concentration”, “excessive daytime fatigue and sleepiness” and “impair performance in attention requiring tasks” with Dr. Charlene Edie Gamaldo, a sleep medicine specialist at Johns Hopkins Center for Sleep on June 18, 2018, less than three weeks before he was accused of failing to appear. See Ex. 4. Impairments of both the working memory and autobiographical memory systems have been reported in individuals suffering from OSA. In the event of trial on misdemeanor BRA 19 charge, Mr. Keerikkattil would be presenting “Expert testimony about a mental condition that reduces the level of guilt is testimony that "bear[s] on the issue of guilt[.]" Super. Ct. Crim. R. 12.2(b).” Bilal v. United States, 240 A.3d 20, 30 (D.C. 2020). Alternatively, the Court is also able to enter an order reducing the felony failure to appear charge to a misdemeanor consistent with the failure to appear statute, legislative history and the Court of Appeals ruling on the failure to appear statute. Should the Court enter such an order, Mr. Keerikkattil looks forward to defending the failure to appear allegation given that even a petty misdemeanor failure to appear violation, needs to be willful rather than inadvertent or accidental. CONCLUSION WHEREFORE, based on the foregoing, Mr. Keerikkattil respectfully requests that his motion be granted and the felony failure to appear charge and the related bench warrant against him be dismissed with prejudice. Respectfully submitted, ________________________ Ranjith Keerikkattil Defendant 20 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this __ day of __________, a copy of Defendant’s Motion to Dismiss has been served upon: John Giovannelli Superior Court Division United States Attorney's Office 555 Fourth Street, NW Washington, D.C. 20530 Phone: (202) 252-7090 Cellular: (202) 809-0791 Email: [email protected] ________________________ 21 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION UNITED STATES OF AMERICA : : : v. : Case No. 2018-CF2-010309 : : RANJITH KEERIKKATTIL : ________________________________________________________________________ [PROPOSED] ORDER Upon consideration of Defendant’s Emergency Motion to Dismiss, it is this ____ day of __________________, 2022 that: 1. ORDERED that the Defendant’s Emergency Motion to Dismiss is GRANTED and the BRA felony charge is DISMISSED WITH PREJUDICE. 2. FURTHER ORDERED that the Clerk is hereby directed to cancel and/or withdraw the bench warrant for Case No. 2018-CF2-010309 entered in NCIC. _______________________________________ D.C. SUPERIOR COURT JUDGE 1 Exhibit 1