Should Reverend Dr. Malachi Z. York Have Been Found Guilty And Sentence To 135 Years In Prison?

On May 2, 2002 the federal government brought an indictment on Dr. Malachi York under the name of Dwight D. York, which was not his legal name. The grand jury that brought the indictment came from a tainted jury pool in Macon, Georgia. Dr. York was originally indicted on four counts of interstate transport of minors for unlawful sexual activity in violation of 18 U.S.C. 2423(a) ( Mann Act Violation ) . On January 23, 2003 , the government, re-focusing the allegations on Mann Act violations added a criminal forfeiture claim, which fell beyond the statutes of limitations. This information was returned in anticipation of a plea agreement; however, the plea agreement dissolved due to no fault of Rev. Dr. York.

Subsequently, On November 21, 2003 , a grand jury selected from this condemned jury pool , returned the re-indictment disguised as a superseding indictment against York. (Doc. 158, Superseding Indictment). Macon's jury pool was deemed tainted by Judge C. Ashley Royal who stated in pretrial hearings that Rev. Rev. Dr. York could not receive a fair trial in this County. “...the court is satisfied that without change of venue for the trial of this case Defendant cannot obtain a fair and impartial trail in the Macon Division of the Middle District of Georgia…” This final indictment again attempted to address the government's challenge of charging York with old, outdated, and stale allegations of Mann Act violations (18 U.S.C. 2253) by creating a hazy aggregation of Mann Act claims, claims of improperly structuring legal cash deposits in violation of 31 U.S.C. § 5324(a) (3), conspiracy claims, and racketeering claims based upon the belief that a State of Georgia recognized church ministry and Native American tribe constitutes an enterprise for illegal racketeering akin to a drug cartel or an organized crime syndicate.

On January 5, 2004, when Rev. Dr. York stepped into a courtroom, filled with a callous judge prosecution and jury, in the city of Brunswick, Georgia, and denied any family support, he knew the stage was set for a modern day lynching. He had been through torturous treatment, blindfolded and hoodwinked, detained in deplorable conditions, chained to cement bed, beaten, and stressed by nonsensical psychiatric evaluations. He'd gone through numerous prejudicial pretrial hearings, and was bamboozled by his very own legal counsel. So what would make his chances in this courtroom any different? The only thing he had on his side was the truth, to reveal the truth. This was the objective of his new attorney, Adrian L. Patrick. However, in the course of the trial, in a malicious attempt to hide the truth, Adrian Patrick was precluded from properly defending his client by the judicial misconduct of the court. The following are arguments and objections posed by the Attorney Adrian Patrick's to the unconstitutional treatment that Rev. Dr. York received resulting in his unjustifiable conviction and sentence of 135 years in prison.

1). First Defense Attorney Adrian Patrick Argued That The District Court Erred By Denying Rev. Dr. York's Motion For Mistrial After The Government Exceeded

The Scope Of The Court Ordered Limitation Of The Rebuttal Witness' Testimony.

The court allowed the re-opening of the government's case, but with a strict limitation that M.F the government rebuttal witness could only state that the witness was molested, with no details. The government violated this by soliciting details.

The following excerpt is a continuation of the aforementioned discussion concerning “M.F.'s” alleged rebuttal testimony.

The Court: And that's why I'm restricting that so much.

Mr. Patrick: But, it's still coming in. They should have presented that “M.F.” during their main case. Your Honor, they're reopening their case. That's not the purpose of rebuttal .

Ms. Thacker : We are rebutting your two witnesses, “S.W.” and “S.T.”, and your legion of witnesses who said it simply didn't happen and – .

Ms. Thacker: And I understand the Court's ruling that we are going to be limited in that regard . . .

The Court: No. I'm just going to restrict you to the fact that she was molested by him..

The Court: – of rebutting the testimony of “S.W.” or others, I'm going to allow that, but this is not a victim-type testimony. You're being restricted by that.

Mr. Patrick: When you allow them to get into the fact that there was an act of molestation, she is a victim-witness, and that's outside of the rebuttal, and we object to that because they're just re-opening their case, and this is not rebuttal testimony. They should have called her during their case. But I'll rest on my objection. (Note: Stephanie Thacker is asking the Questions and “M.F.” is Answering)

Thacker: Now, during that time period, did Dwight York ever molest you?

MF: Yes, Ma'am.

Thacker: What happened after that?

MF: She took me to his house, and he began to fondle me. He took my pants

off, and he began to fondle me.

Thacker: Anything else?

MF: No. He just began to fondle me and touching me.

Thacker: Did you touch him?

MF: Yes, his private parts.

Thacker: Did you tell anybody about this?

MF: He said not to tell nobody, so no.

Thacker: Was “S.W.” present when this happened?

MF: Yes, ma'am.

Thacker: Was this the first incident of sexual molestation by Mr. York?

MF: Yes, ma'am.

Mr. Patrick: Your honor, I think the Court has ruled, and counsel is going beyond what the Court has ruled counsel could go into.

The Court: Well, I –

Mr. Patrick: And, Your Honor, we need to approach on an issue.

The Court : Okay.

Mr. Patrick: Your Honor you clearly informed the government that the only thing the government could go into was that she was molested and nothing else. She clearly went beyond that, to get into details. I want to make a Motion for a Mistrial at this point based upon that, because the Court was clear as to what counsel could get into, and she continued. She even started talking about another incident. The Court was clear your Honor and I think this is grounds for a mistrial. It was already tenuous because it was getting outside of the scope, and the Court was

clear to the government about this, and she intentionally went beyond what the Court stated.

The Court: Well, let me just tell you that I told her she could give the testimony, the facts testimony related to “S.W.”, and that's all she's done here. So your motion is –

Mr. Patrick: But, your Honor, she's talking about her –

The Court: . . . So your motion is overruled . . .

The court allowed the government to go beyond the scope of questioning instructed by the court and event went so far as to quantify the incident as the 1 st time. This is the kind of abetting the court continued to display during the entire trial. (see Judicial Bias and Misconduct).

Based on the fact that the government violated the strict limitation that the Court put on this testimony, by prompting the witness to testify to evidence that was in direct violation of the judge's restrictive order, Rev. Dr. York made a timely motion for mistrial which the judge denied. Per the rule established in United States v. Abdi,744 F.2d 1500 (11 th Circuit 1984) it was a manifest necessity to declare a mistrial, because once the new act of child molestation was in the minds of the jury there was irreparable harm. The court did not allow Rev. Dr. York to put “S.W.” on the stand to rebut what the government's rebuttal witness, “M.F.” In the case of United States v. Peay 972 F.2d 71, (4th Circuit 1992), the court held as follows: “An important criterion for properly reopening a case is taking care that reopening does not “preclude an adversary from having an adequate opportunity to meet the additional evidence offered.” Thetford, 676 F.2d at 182. The court's reopening of the government's case while at the same time denying Peay an opportunity to impeach Seager's with Rainer's testimony sustains Peay's assignment of error. The judgment must be vacated and the case remanded for retrial.”

The court's denial of the defense attorney's request to call S.W. to impeach the government's rebuttal witness was clearly erroneous and warrants that this conviction be vacated and the case should be reversed or in the alternative, the case should be remanded for retrial.

Attorney Adrian Patrick Also Posed The Argument That The Evidence Was Insufficient To Prove Beyond A Reasonable Doubt That Rev. Dr. York Committed The Acts Alleged In Count 1 (1), Count 1 (2), Count 2 (B) (1) Racketeering Act 1, Count 2 (B) (2) Racketeering Act 2, Count 2 (B) (3) Racketeering Act 3, Count 2 (B) (4) Racketeering Act 4; Count 3 (A) And Count 3 (B) Conspiracy, Count 4, Count 5, Count 6, Count 7, Count 8 - Transporting Minors In Interstate Commerce To Engage In Unlawful Sexual Activity.

The government failed to prove beyond a reasonable doubt all of the necessary elements of these crimes: specifically the unlawful sexual activity and the purpose elements. There was absolutely no evidence presented to prove that the travel in interstate commerce was unlawful, no State law was put into evidence during the State's presentation of their case and there was insufficient or no evidence or witness testimony that the purpose of the interstate travel was for sex with minors. Jalaine Ward, an agent for the FBI and lead officer in the raid of 404 Shadydale Road and arrest of Dr. Malachi York, testified in pretrial hearings that none of the victims testified that they were transported for the purpose of illegal sexual acts. Attorney Adrian Patrick questioned Jalaine Ward about her detention hearing testimony on May 9 2002 A.D.

Patrick: Read from "all right" down for us. Okay?

Ward: "Now in connection with the travel for the purpose of having sex with a minor, do you have any witness who says that the purpose in the travel was to have the children have sex? The witness – my answer is, "The witness that says that?"

Notes From Trial

Ward: And my Answer is, "No."

"You have no witness that says that?"

"Not that says that, no."

And you didn't say anything about "H.W." at that time, correct?

No . . .

Notes From Trial

Ward: She would be the witness that comes to mind.

And this is sworn testimony May 9, 2002; correct?

Yes. Yes.

At this point Jalaine Ward, the Federal Agent has indicated that it is her belief that “H.W.” may fill this evidentiary void of providing a witness or any evidence that the purpose of the travel from New York to Georgia was for the purpose of unlawful sex; however, contrary to this agent's belief, upon review of “H.W.'s” entire testimony. There is no evidence that she provides indicating that the purpose of the travel was for unlawful sex with minors. Thus, there is no evidence that would sufficiently support the federal jurisdiction over the state acts of alleged child molestation. H.W. later recanted her statement in a video taped session with her attorney where she states that no molestation occurred and did two written affidavits supporting this recantment. Threatened by the government with the loss of her children H.W. was then forced to withdraw her recanted statement.

The government presented no witnesses that testified that the purpose of the travel was to engage in unlawful sexual activity. There was no proof that Rev. Dr. York actually drove anyone of the alleged victims. There was no evidence that Rev. Dr. York directed or caused anyone specifically to travel for that purpose.

In a criminal case, the government must prove each and every element of a charged offense beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). The Eleventh Circuit has characterized this right as one of the most fundamental guarantees in a criminal trial. Nutter v. White, 39 F.3d 1154 (11th Circuit 1994).

Specifically, the Government failed to put into evidence and prove the Georgia Law - Georgia Code 16-6-4 and 16-6-5 , any State Law, nor any law that was going to be or that would show that the alleged sexual acts were unlawful. Once again, the government put the Georgia Code Sections in the superseding indictment [Doc. 158 pp. 2, 24, 25, 26, 29, 32, 34]. See United States v. Zemater 501 F.2d 540 (7th Circuit 1974), this court held as follows : “. . . But even if the activity in Saigon violated Illinois statue, it did not violate the Travel Act. Subsection (b) of the federal statute requires the acts committed after the travel to be in violation of the laws of the state “in which they are committed.” Since Congress could have punished travel merely . . .” “That Congress did not intend to exercise its full constitutional powers in the area of local law enforcement is demonstrated by the wording of the Act and specifically by use of the word “thereafter” As the Senate Report on S.1653 states: . . .to come within the provisions of the bill some activity in furtherance of a racketeering enterprise, subsequent to the performance of the travel must take place . . .”

Although not directly on point, this case is used as support for Rev. Dr. York's contention that there must be proof presented by the Government during its case that the sexual activity “would be” unlawful or “is” unlawful if committed in the destination state. The government completely failed to do this. The government simply relied on the court to instruct the jury on the Georgia law at the end of the entire case; thereby, circumventing their obligation and burden of proof beyond a reasonable doubt of each and every element of the crime. The government essentially relied on the court to meet their burden of proof through its jury instructions. In this entire case, the jury instructions are the extent of the evidence of proof that the alleged sexual acts where unlawful. However, the jury instructions are not evidence.

First, it is necessary that the government prove what the law “is” or what the law “was” at the time of the alleged offenses. Next, it is necessary that the government must prove that this law was violated or was going to be violated in the destination state. As referenced above, 18 U.S.C. Section 2421- Transportation generally and 18 U.S.C. Section 2423 (a) - Transportation of minors, the state law is a necessary and material element, in order to prove the “unlawfulness” of the sexual activity. In the case at hand, that proof would have been the Georgia and Florida law. This element is necessary to prove beyond a reasonable doubt. It is necessary because if there was no crime that would be violated in the state of destination - then there is no violation of the law. Without the government being required to prove this necessary element beyond a reasonable doubt, the government would have the freedom to criminalize “any travel with a minor,” including parents with their children, uncles with nephews, etc. Even if you look at this case in the light most favorable to the government, the government completely failed to provide any evidence and completely failed to meet its burden of proof on this issue. This was indicated by Juror II when she stated that she did not want to send an innocent man to jail. This is why the verdict was originally hung. Then Judge C. Ashley Royal appeared to have instructed the juror on their decisions. When the jurors returned, Juror II changed her decision to guilty.

3).The District Court's Denial Of New Counsel's Motion For Extension Deprived Rev. Dr. York Of A Fair Trial And Due Process Of Law.

On December 30, 2003 , six days before trial, the court permitted previous lead counsel, Edward T.M. Garland and Manubir Arora, to withdraw from the case; thereby, leaving new counsel Adrian L. Patrick , as lead counsel with 6 days to prepare. In attempting to review the 20 months of activity in the case, including, indictments, superseding indictments, discovery information, motions, and court orders; new counsel requested an extension in the trial date so that he could adequately prepare for trial. The district court refused and trial proceeded as planned. The court's failure to grant an extension, given the circumstances, deprived York of his right to counsel, due process and a fair trial.

4). Rev. Dr. York Had Received Ineffective Assistance Of Counsel From Ed Garland And Manubir Arora From The Time They Came On As His Defense Attorney.

They never pursued the federal court lack of jurisdiction over Rev. Dr. York in order for them to even indict Rev. Dr. York and send him to trial.

They tortured Rev. Dr. York by subjecting him to sleepless nights of psychiatric evaluation and interrogation. They lied to Rev. Dr. York and told him that over 35 victims had come forth to testify that he allegedly molested him. They dangled the threat of 1000 years imprisonment if he did not take a plea agreement of fifteen years imprison which he was assured would be granted. He was told by Ed Garland and Manubir Arora that the State and Government would release co-defendants if he took the plea agreement because they only wanted Rev. Dr. York. Rev. Dr. York was taunted by Ed Garland and Manubir Arora who told him that his co-defendants were also suffering the same type of torturous treatment and deplorable conditions that he had been suffering.

Acting against the best interest of their client Edward T.M. Garland and Manubir Arora requested that Rev. Dr. York receive psychiatric evaluation to cover up their ineffective assistance of counsel. Rev. Dr. York was sent to the Metropolitan Correctional Center , where he received the worst of his torturous treatment, being chained to cement beds, hoodwinked etc. According to Rule 11 of the Federal Rules of Criminal Procedure “...If a prosecutor, Judge or defense attorney thinks that a defendant may not be competent to stand trial because he/she cannot understand or assist in his/her defense, they may request that the court order a psychiatric evaluation of the defendant.” Rev. Dr. York had already gone through two evaluations prior to them ordering the third. The second was the night before he took his plea agreement. Rev. Dr. York was questioned and interrogated all night prevented from getting any rest and then dragged into court to face a plea agreement.

Ed Garland never prepared for trial, never questioned or prepped any witnesses for Rev. Dr. York's defense, yet he acted as his lead attorney. On countless occasions Ed Garland would hold in chamber hearings with court without the Rev. Dr. York's knowledge. His communication with Rev. Dr. York were minimal, visiting Rev. Dr. York less than five times over the two years of Rev. Dr. York's detainment. And as the trial drew near, instead of fighting for his client Ed Garland went on vacation.

5). Rev. Dr. York Also Continued To Receive Ineffective Assistance Of Counsel.

The post-trial counsel, Jonathan Marks, was ineffective in withdrawing Rev. Dr. York's motions, submitted by Adrian Patrick, for judgment of acquittal and motion for new trial without the consent of Rev. Dr. York and with no sound legal basis. This has a negative and adverse impact on Rev. Dr. York rights, including but not limited to the ability of Rev. Dr. York to challenge the sufficiency of the courts decision as well as other relevant issues. No reasonably objective lawyer would have withdrawn the motions because there was no rationale basis to do so.

6). Attorney Adrian Patrick Also Argued That Rev. Dr. York's Sixth Amendment Right To A Jury Trial Was Denied When Rev. Dr. York Was Sentenced Based Upon Facts Not Reflected In The Jury Verdict.

After Rev. Dr. York's conviction at trial, the district court improperly relied upon the United States Sentencing Guidelines to determine Rev. Dr. York's punishment. The use of the guidelines served to increase York's punishment based on facts that were never submitted to a jury for proof beyond a reasonable doubt. Rev. Dr. York was denied his sixth amendment right to a jury trial when the district court took these steps and increased his punishment based on facts beyond what was reflected in the jury verdict. Blakely v. Washington, 124 S. Ct. 2531 (2004). B . The recent Supreme Court decisions in U.S. v. Booker, Supreme Court Case No.: 04-104 and U.S. v. Fanfan, Supreme Court Case No: 04-105 affirmed the Blakely decision and essentially stated that the sentencing guidelines are unconstitutional and that the invalid parts can be excised and the remainder should be advisory, but not mandatory.

The court ruled that Rev. Dr. York should be sentenced based on evidence that was never presented to the jury. According to the PSI report, Rev. Dr. York received a specific offense level for RH who never testified in court and JE who also never testified in court. He also received high offense levels for alleged victims who testified that they were never molested. Now if we are to adhere to the testimony of those that alleged they were molested to support Rev. Dr. York's indictment then we most exercise this same standard with those that avow they were never molested. The testimony of those alleged victims were not based on evidence or fact, because AN testified in court that she lied to the grand jury, KE lied to investigating agents and on the stand, HW recanted her statement and then re-recanted. Pauline Rodgers whose anonymous letter supposedly instigated the investigation admitted that she wrote the letter out of anger and that it was not true. Thus the testimony of the alleged victims were not based on evidence or fact yet the prosecution utilized their testimony to support an indictment against Dr. York. Therewith the likewise standard should be utilized when judging Dr. York's sentence. Over eight witnesses testified that nothing happened. Dr. York sentencing, based on evidence not presented to the jury, is thus unconstitutional.

7). Dr. York's sentence was void because Dr. York was sentenced under Federal Sentencing Guidelines that have been ruled unconstitutional as applied in this case.

They use the most recent version of the Sentencing Guidelines at Dr. York's sentencing violates the ex post facto clause of the U.S. Constitution. Dr. York's punishment was increased based on the use of the most recent version of the guidelines instead of the version in effect at the time Dr. York allegedly committed the charged offenses. Therefore, he must receive a new sentencing so that the court may employ the appropriate version of the Guidelines.

Note: for legal reason the names of the alleged victims and witness have been redacted

For additional information on the unjust case against Dr. Malachi York and ongoing appeal visit http://www.nuwaubianfacts.com. Check out the documentary "Mysteries Behind Closed Doors" at http://www.mysteriesbehindclosedoors.com and watch the full version.