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Tag: motions

Indicted on all Six Counts

These motions MUST be filed within 21 days of indictment – so they were:

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November 19, 2018
Case No:  18 CRS 050638

Now comes Brian Aberle represented Pro Se with this Motion to Order Release of Evidencial Discovery to the defendant pursuant to G.S. 15A-902(c).

This case was in District Court for 5 months where my request for a Probable Cause hearing and my request for the release of evidencial discovery were denied.  Therefore I request a hearing to order the prosecution to comply with the request to release discovery.

I elected to be represented by appointed counsel on 3 of the 6 charges that I am facing.  I elected self representation on the other 3 charges.  I currently have no representation and the Ashe County Jail has no law library or legal reference material so please excuse my informality.

*******

November 19, 2018
Case No:  18 CRS 050638

Now comes Brian Aberle represented Pro Se with this request for an Arraignment hearing pursuant to G.S. 15A-630.

My appointed counsel withdrew from my case because he only represented me on 3 of the 6 charges.  This has left me without any legal counsel and no legal reference books in the Ashe County Jail so please excuse my informality.

The District Court judge did grant my “Motion to Preserve Evidence” because my laptop contains evidence necessary for my defense.  I would request the Superior Court judge to order the prosecution to release that evidence to the defense at this time.

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Letter to the Court

October 11, 2018

Clerk of Court:
District Attorney:
Honorable Judge:

Regarding bond 18 CR 050313 which was forfeited. I implore your mercy and forgiveness for my failure to appear resulting in this forfeiture. I apologize for not immediately notifying the court after my absence which compounded the trouble. Although my circumstance is not an excuse, I humbly ask that you consider the circumstance surrounding this failure to appear:

I live in a very rural area with no taxi service and no public transportation. I have no drivers license and an even larger hindrance is that I have no vehicle. I was so new to the area that i had not been introduced to mg neighbors who may have been able to help with transportation. Living 10 to 20 miles from court and being unfamiliar with the roads here made walking/hitchhiking/or bicycling difficult. Regardless, i seek not to excuse my absence but to apologize for it.

That $15,000 “Cash Only” bond for the marijuana charge was extremely difficult to make. The surety signer, my employer, had to drive up from Asheville and the funds came from family in Colorado.

The subsequent case regarding my medicine research lab has a $300,000 bond which is impossible for me to make. My research findings are published online in Ph.D. medicine forums and I had expected that the rising interest in my publications would have lead to obtaining a sponsor or a research grant by now, however this lengthy incarceration has prevented that. Furthermore, at present I am unable to call upon family or friends to help me make this unreasonably high bond.

This pretrial detainment, without legal counsel, and in a facility without resources for referencing current law, case law, or general court rules and procedures leaves me significantly hindered from legal preparation.

In my current situation, the only bond I can possibly make is an unsecured appearance bond. Please find mercy on my situation and consider that my research work and nearly 25 years professional experience surrounding medicine and health care systems has the best intentions for society and the community. I submit that my case is misunderstood and the facts will reveal themselves. In the interest of justice, please entitle me to a presumption of innocence by granting me an unsecured bond.

Without any legal references I am unsure how to put myself on the court calendar to hear this motion. My resources have been unable to locate the 23rd Judicial District local rules of the District Court Division, however rule 14.1 for the 26th District states that “Attorneys requesting cases to be added should request the District Attorney to sign the addition slip” therefore this letter has been mailed in duplicate to both the DA and the Clerk of Court.

The extremely lengthy delay in my case in District Court bestows an unfair advantage to the prosecution who perpetually continues the case. Lacking reference for the 23rd District , in the 26th District rules 4.3b states that trial shall be within 30 days of charge. Rules 4.5 state factors to be considered when deciding continuances.

Rules 4.5 state factors to be considered when deciding to grant or deny a motion to continue:

a) effective assistance of counsel
b) the age of the case
c)the incarceration or detention status of the defendant

In consideration of all this, in the interest of justice, and presumption of innocence please grant this motion for an unsecured bond on the next available court calendar.

Furthermore, in the event that we can settle this matter in District Court, I am willing to negotiate. I admit to having been conducting my research without permits, however I have never been party to any sales of controlled substances neither was I in possession of any more than very small amounts consistent with research purposes. To reach a quick resolution, I will forego all civil charges against Ashe County for violation of Due Process, for Malicious Prosecution, for Defamation of Character in erroneous media publications, for confiscation of 138 items which were not subject to confiscation, and for the improper conditions during detainment. Otherwise all of these items will be submitted to the Federal US District Court in the form of a U.S.C. 1983 Civil Suit which is already largely prepared based on the history of this case which is published online at: http://www.GuiltyUntilProvenWealthy.home.blog

The ACLU is interested in representing my case. Please advise me if I should retain them or if we might come to a speedy resolution.

I hope that mercy and forgiveness might prevail between Ashe County and myself for our failures to adhere to proper procedures.

Sincerely,

Brian Aberle

Official Capacity

The situation I am in is unbearable.  I have virtually no access to law books and I am facing 20 years while being fully self-represented.

I have been asking night shift and day shift deputies for ‘legal request forms’ – paper forms that Sharon Price says must be used for any law lookup request.  Day shift, after being reminded several times, ignored my request.  The night shift said they don’t even know what is a ‘legal information request form.’

Finally, I obtained a nearly impossible to obtain and official “legal request form”:  I asked for the 2018 federal sentencing guidelines for DMT and a list of motions relevant in District Court.

The form was returned, answered by Sharon Price:  She said she is not obligated to give me any legal reference material besides “the general statutes with which I am charged.”  She is mistaken.

Additionally, she took the liberty to offer her own legal advice – which I did not ask for:  Captain Sharon Price wrote, “What you need to do is request standby counsel to be appointed by a judge, as I understand that as of 9-20-18 Mr. Baker is no longer your court-appointed lawyer.”

Huh?  She won’t provide me the legal reference about my rights for standby counsel, despite in a previous hearing I actually requested exactly that and the judge told me “he thinks but is not certain that North Carolina no longer allows standby counsel.”

Where does Captain Sharon Price derive her advice from?  Why is she advising me now?  Now that Garland Baker is not?  The four motions I just properly filed and served on the DA on the 20th – have they been heard?  Why could they not be heard that day?  Do I need to be put on the docket to have them heard?  How is that done?  Why will the DA not speak directly with me?  Especially if I have no legal counsel?

Fish or Cut Bait

Brian caught the court with their pants down last week with his Pro Se defense; so this week, at his second appearance, the court accepted his dire motion to preserve evidence and then granted the DA’s request for a continuance – until the end of November!  Brian is already waiting for another hearing which is currently scheduled for October.

By the time I talked to Brian that afternoon, he was preparing for another two months inside the Ashe County Detention Center.  He’s already been there for three months.

Case Number:  2018050638 CR  (Offense Codes on the left, Statutes on the right):

  • 3522      Felony FELONY POSSESSION SCH I CS               90-95(A)(3) 
    (a) Except as authorized by this Article, it is unlawful for any person:
(3) To possess a controlled substance.

Case Number:   2018050658 CR

  • 3346       Felony PWIM PRECURSOR-NOT METH             90-95(D1)(1)A 
    (d1)(1) Except as authorized by this Article, it is unlawful for any person to:
a. Possess an immediate precursor chemical with intent to manufacture a controlled substance;

    9968       Felony MAINTN VEH/DWELL/PLACE CS (F)      90-108(A)(7)

    (a) It shall be unlawful for any person:
(7) To knowingly keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article;

Case Number:  2018050892 CR

  • 3501      Felony MANUFACTURE SCH I CS                      90-95(A)(1) 
    (a) Except as authorized by this Article, it is unlawful for any person:
(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;
  • 3522      Felony FELONY POSSESSION SCH I CS           90-95(A)(3) 
    (a) Except as authorized by this Article, it is unlawful for any person:
(3) To possess a controlled substance.

Case Number:  2018050893 CR

  • 3515       Felony PWIMSD SCH I CS                                  90-95(A)(1) 
    (a) Except as authorized by this Article, it is unlawful for any person:
(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;

 

Here’s the short-list of the charges, color-coded for clerical error/maliciousness:

2018050638 3522  Felony FELONY POSSESSION SCH I CS  90-95(A)(3)
2018050658 3346  Felony PWIM PRECURSOR-NOT METH  90-95(D1)(1)A
  9968  Felony MAINTN VEH/DWELL/PLACE CS (F)  90-108(A)(7)
2018050892 3501  Felony MANUFACTURE SCH I CS  90-95(A)(1)
  3522  Felony FELONY POSSESSION SCH I CS  90-95(A)(3)
2018050893 3515  Felony PWIMSD SCH I CS  90-95(A)(1)

 

 

Motion to Dismiss Retaliatory Charges

Brian has his second hearing today for his second round of felony charges.  Brian is moving to have them dismissed:

Sept 12, 2018
Now comes Brian Aberle, represented Pro Se, with this Motion to Dismiss.  These three felony charges were filed with Malice, Ignorance, and possibly Retaliation.

Malice – because they are nearly duplicate charges. They are nearly the same charge filed differently.  This is nearly double jeopardy.  This charge is also filed to be intentionally misleading because when a fraction of a gram is dissolved in 320 grams of liquid, the weight of the liquid is irrelevant.

Ignorance – because DMT is only one of the neurotransmitters present in the solution, along with the object of my research – serotonin.  Both are found naturally in the human body and in plants.  The District Attorney currently has DMT in his body.  Should he be charged for manufacturing 170 pounds of DMT, or would that be an incorrect charge?

Retaliation – because these charges were filed immediately after I called the Department of Health to inspect the jail due to over 50% of ‘F’ dorm having bacterial and skin conditions contracted while in custody.

Breakthrough Hearing

Brian’s two new felony cases – retaliation and punishment for a complaint to the Department of Health – were slipped into the Add-on docket of today’s Regular docket of the Main Courtroom.  The Add-on docket is for last-minute, unplanned cases – Brian’s case, as of today, is 77 days old – and he is still being held at the Ashe County Detention Center.

There are no transcripts or audio recordings from the District Court so only those present witnessed Brian wisely represent himself Pro Se, thus forcing the court to finally recognize him; he has thus far been denied an appearance before a court – in fact, he has not even been indicted on the first two felony cases.

Finally in the presence of public court, Brian reiterated his motions and filed them again with the Clerk of the Court and the District Attorney, which are republished again here:

“September 6, 2018
Now comes Brian Aberle, represented Pro Se with this Motion To Preserve Evidence. Specifically, the laptop that was confiscated by ACSO contains my research work.  I research and publish in BOTH technology and medicine forums on the internet promoting academic and industry advancement.  My technology work is published at CodeProject.com under the project titled XMLFoundation and my medicine research is published at ResearchGate.net under the project titled “Neurodegenerative Disease Cure 2018”.

I need the laptop returned in the same condition it was taken – specifically do NOT wipe the hard disk and do NOT erase browser cookies containing website login information.

In the interest of justice and honest defense, as explained to the court on September 6, 2018 please order this Motion To Preserve Evidence and return the property to the defense since the prosecutorial team has had it in their possession for 77 days and had ample opportunity to seek for evidence of narcotic sales which I know for certain does not exist on the laptop because I do not sell the small amounts of research items I experiment with.

September 6, 2018
Now comes Brian Aberle, represented Pro Se with this Motion for Discovery.  This motion was presented orally to the court on September 6 after asking the District Attorney if the 3 new felony charges were based on new evidence.  The District Attorney refused to answer the question, therefore I pray the court orders prosecution to release all evidence to myself without further delay.  The delays to date have been unacceptable and can no longer be tolerated because we are now under the time restraints of the Motion for a Fast and Speedy Trial which was also spoken orally to the court on September 6 and served in writing to the District Attorney, the copy served to the DA was marked received by the Clerk of Court on August 7, 2018.

September 6, 2018
Now comes Brian Aberle, represented Pro Se with this Motion for a Fast and Speedy Trial.  This motion was first filed in a letter dated August 1, 2018 and received and filed with the Clerk of Court on August 7, 2018 along with my motion to represent myself Pro Se pursuant to 15A-1242.  This motion asserts and reaffirms intentions filed on August 7, 2018.

September 6, 2018
Clerk of Court:
On September 6, 2018 Brian Aberle was before the court and on that day the District Attorney claims he did not receive documents that were marked received by the Clerk of Court on August 7, 2018.  I served him with my only copy of these documents other than the handwritten originals which are still in my possession.  Please mail me copies of these documents and copies of all Motions, Statements, and Letters on file with the Clerk of Court for the case of Brian Aberle who is represented Pro Se.

Thank you for your time on this important matter.”

In Brian’s own words:

I just got back from court.  I hope to God that the news was there.  I elected to represent myself in front of the courtroom.  I asked what my maximum sentence was:  130 months on just the three felonies that were before the judge.

First things first – Motion to Preserve Evidence – I told the court I am a medicine researcher and that the laptop contains evidence essential to my defense.  The judge said that the motion must be served to the DA’s office, I said “I thought that a motion filed with the Clerk of the Court is serving the DA.”  The judge was unsure of the procedure.

I said, “Since there were three new felonies filed, was there any new evidence?”  The District Attorney could not say or did not know?  WTF?  So I filed a Motion for Discovery of Evidence.  The judge said that the motion must be filed with the DA, I said it already was, and I have that motion right here stamped ‘received’ by the Clerk of the Court.  I served my copy to the DA right there.

The judge recommended that I use appointed-counsel.  I asked if I could retain my previously-appointed counsel as standby counsel.  The judge said, “I don’t think that North Carolina allows that anymore.”  I told him that the jail only gives me access to a law book that is 25 years old – and that book says that the court can appoint counsel as standby.  I asked the court to have the jail give me current legal reference – the judge said, “I don’t know what the jail must provide you with.”

See if the court proceedings were recorded, and if can you obtain the transcripts.

I hope the news was there.

God was with me.”

 

Motions from Inside Prison

Brian filed a letter with the Clerk of Court on August 30, in which he petitions the court:

Please have the court schedule a hearing at the earliest convenience.  I have filed several motions needing to be heard as soon as possible.

Filed with the court in a letter dated August 1st and pursuant to 15A-1242, I elect to represent myself.  Without further delay, please schedule a hearing for this motion.

I also move for a Speedy Trial.  Without further delay, please schedule a hearing for this motion.

The laptop that was seized as prosecutorial evidence contains medicine research notes that will be used as evidence by the defense.  Therefore, please hear my Motion to Preserve evidence, and order that the laptop be turned over to defense in preparation for trial.  Without further delay, please schedule a hearing for this motion.

Additionally, and consistent with the court determination of my indigent finances, I move for the court to pay for expert witness testimony regarding neuromedicine research at a rate of $700 per day, which is a discounted rate for a colleague of the medicine research community.  Without further delay, please schedule a hearing for this motion.

Pro Se

The following letter from Brian Aberle dated August 1st was recorded with the Clerk of the Court for Ashe County, North Carolina:

Pursuant to North Carolina Code 15a-1242, I elect to represent myself.  I will retain my court appointed counsel as standby counsel, if the court will permit.

According to 15a-611a3, I wish to testify as a witness at my long awaited Probable Cause hearing.  I submit to the court that my case is misunderstood by over-zealous prosecution and some easily verifiable fact will eliminate this misunderstanding thereby justifying this:

A)  Motion to Dismiss, and this
B)  Motion to Suppress Evidence at this trial that I want to happen ASAP according to this
C)  Motion for a speedy Trial.

The evidence was obtained unlawfully according to 15a-974.  I am a credited neuromedicine researcher with clients and research publications potentially protected by code 122c-210.  Expert testimony called according to 8c-1 702 and my professional experience in oncology at Siemens Medical and management experience at Kaiser Permanente and my publications at ResearchGate.net will be the basis for my professional research qualification.

The Motion to Suppress is founded on the fact that the probation arrest was overly aggressive by definition of law in 15a-1345 as 10 officers searching my home for 2 hours produced only 3 grams of mushrooms that were mistakenly presumed to be hallucinogenic.  They came with an intent to arrest although there had been no violation of probation conditions.

According to 15a-248 “unnecessary delay” is 48 hours. According to 15a-223, 15a-242, and 15a-256 my detainment duration is far beyond “such a time as is reasonably necessary”.

15a-254 states that a list of items seized shall be produced and 15a-257 states that the list shall be produced “without unnecessary delay”.  However, officers continued to search my home while I was imprisoned – a violation of 15a-251 which states that an officer may break and enter a home by force only when admittance is denied or life is in jeopardy, thereby over-stepping legal search and seizure and constituting first-degree criminal trespassing defined by 14-159.11.

Furthermore, contrary to the ideals set out for probation officers in 15-205, he violated his powers to arrest granted in 15-204. Therefore, I contest the legality of the search and the admissibility of evidence obtained contrary to law and without probable cause and good faith circumstances.  A large amount of property that is not contraband and not subject to lawful retention was taken.

The totality of fact surrounding my case suggests that the court strongly consider this Motion to Dismiss or at a minimum not condone the unlawful gathering of evidence by granting this Motion to Suppress, thereby upholding the law and supporting honest medicine research.