From the March 2001 Idaho Observer:
Santa man becomes fugitive after long legal challenge of federal authority
Hari Heath refuses to serve sentence for trumped up charges
By Don Harkins
In August, 1997, Santa logger and primitive skills teacher Hari Heath, then 42, in the affable way that is his trademark, attempted to question the legal authority of U.S. Forest Service (USFS) Law Enforcement Officer Steven Didier who had responded to a complaint that people were swimming nude within view of a rural highway in Idaho county.
Today Hari Heath is a federal fugitive because he refused to begin serving the unjust sentence he received after being denied a jury trial.
The case against Heath was built on the provably perjurous and ever-evolving testimony of Didier who was angry that his law enforcement authority had been challenged. Heath was originally charged with "not supplying name, address, and date of birth when asked and by disobeying a lawfull (sic) order not to leave an area of investigation concerning disorderly conduct and Idaho State violations of Sexual Display" in the Idaho Federal District Court of Judge Edward Lodge.
Heath and approximately 20 other swimmers were never charged with the "Idaho State violations of Sexual Display," which was the alleged crime that prompted Didier to "investigate" in the first place.
Heath was tried for interfering with a forest officer by leaving the scene of an investigation and sentenced by Judge Lodge in July, 1998, to serve six months (three months suspended) in jail, 200 hours of community service and two years probation.
Other conditions of his sentence were that he was not to instruct others to "disobey the law," leave the state or possess firearms (the Idaho State Constitution requires that a person be convicted of a felony before he can be prohibited from possessing firearms).
Heath believed that Judge Lodge's refusal to provide him with a jury trial and the relatively severe sentence he was given were among the appealable issues. Heath began the process of exhausting his judicial remedies through the appellate court.
Finally, last fall, the Ninth District Court of Appeals denied Heath's "Nunc Pro Tunc [as it was in the beginning] Motion for Reconsideration of Denial of Motion for Stay of Mandate," which had been coupled with a "Motion for Recall of Mandate."
At that point there was nothing more that Heath could file for his appeal. Judge Lodge's conviction and sentencing for a "petty offense" was upheld by the appellate court. "If I was guilty of something, I would never have put my family through almost four years of litigation over what would appear on the surface to be a silly issue," Heath commented from a telephone booth that was presumably located somewhere in the northwest U.S.
The subject matter of the issue may have been silly, but the jurisdictional and due process issues Heath raised in his defense were of tremendous importance. It would appear that Judge Lodge recognized the gravity of Heath's issues and prevented them from being appropriately addressed in his courtroom.
The record shows that Heath brought up several salient points which should have resulted in a dismissal based upon clear contemporary rulings on the limits of federal criminal jurisdiction and the authority of federal agents to exercise police powers on lands administered by the federal government. Judge Lodge then passed sentence on Heath that was obviously intended to send a clear message to others who may be inclined to question federal authority: Do so at your own peril.
By the time Didier arrived on the scene that hot August day, approximately 20 participants of a primitive skills gathering were already getting ready to leave the area on the Clearwater River where they had been swimming--an area known as Cotter Bar that is located in what has been designated "national forest" land.
Heath questioned Didier and asked him to explain the basis of his federal law enforcement authority. When he could not provide a satisfactory answer to the simple question, Heath went to his van to get a copy of the Constitution and proceeded to cite to Didier the limitations of federal land ownership found under Article 1, Section 8, Clause 17 of the U.S. Constitution. He also mentioned how the 10th Amendment to the Constitution, in what we understand to be the Bill of Rights, limited the powers of the federal government to those powers enumerated in the Constitution.
Though Didier was not able to justify his federal law enforcement authority, he continued with his "investigation." Didier asked Heath to give him his name, which he did. According to Heath and a witness, Didier wrote the name down on the same notepad he used throughout the incident to take notes and write down license plate numbers.
Along with many other false and exaggerated statements, Didier's initial report misidentified the two Heath brothers. This failure to correctly identify Heath with the alleged conduct could have beaten the government's case. Rather than make an honest correction, Didier later claimed the Heath brothers switched their names.
At first, Didier claimed that Heath had supplied him with a composite name that included his brother's first name and his own middle name when they first met at the river. Didier later testified that Heath verbally claimed to be his brother while holding up his own concealed weapons license for Didier to see. Didier claimed that is how Heath switched his name. Didier testified he then issued Heath a citation in his brother's name based on what Heath told him, pretending to the court that he couldn't see the identification that was a few feet in front of him.
Heath's brother was also at the scene and Didier testified that Heath's brother later identified himself with his correct name soon after Didier issued the citation to Heath. Didier then testified that he issued a citation to Heath's brother in Heath's brother's correct name. Didier never explained how he failed to notice that according to his testimony both brothers gave the same name.
The trial record proves the impossibility of the name switch since Didier also testified that he issued each brother a citation with the correct information on it. Such discrepancies in testimony were ignored by Judge Lodge.
The notepad Didier used to take names, notes and license plate numbers would prove whether or not Heath had intentionally misidentified himself to Didier, but Heath was denied access to the notepad after filing motions for discovery. Though Heath and other witnesses claim that he was in no way "obstructing" Didier, he did persist in asking questions about his authority and where it came from.
Though the other people were also polite, none of them would tell Didier their names and just continued getting ready to leave. "Didier seemed bewildered and upset that nobody would give him their names," Heath recalled.
For what he remembers as being at least the fourth time, Heath asked Didier if he was being detained. And, for at least the fourth time Didier responded that Heath was not being detained. Heath and the others left the scene and began the 10-mile trip back to the campsite of the primitive skills gathering.
About halfway to camp, the procession of approximately six vehicles was stopped by an Idaho county sheriff's patrol car. The Sheriff's deputies were joined by Didier who resumed his "investigation" of the nude swimming incident with the aid of local law enforcement. Though they were never able to determine who actually committed offenses of skinny dipping, Heath and five others involved in the incident, including his brother, received a notice that commanded them to appear in court Sept. 24, 1997.
Justice and jurisdiction
One "defendant" paid the $300 fine and was done with the whole ordeal. Another, who had traveled from New Hampshire for the primitive skills gathering, made other arrangements with the court.
Heath knew enough about the justice system to know that he must study the rules if he and the remaining "defendants" were to have a chance of defending themselves against the federal government. So he studied the federal court's rules of criminal procedure and found that the manner in which they were served was an obvious violation of rules 3 and 4.
During their first appearance in the court of Idaho Federal Magistrate Judge Mikal Williams it was learned that violations of criminal procedure by the government were of no consequence. It was also learned that if the defendants simply paid the $300 fine, the problem would go away and that to plead "not guilty" meant that they would face a fine of $5,000 and six months in jail.
The court recessed and reconvened a few weeks later for a second arraignment to correct the violations of rules 3 and 4. At the second hearing, though all four "defendants" had been accused of the same crimes, U.S. Attorney Barry McHugh dismissed the charges against the other "defendants" and decided to selectively prosecute Heath who had apparently been singled out as the "ringleader."
Rather than paying the fine, Heath simply chose to defend himself against the provably trumped up charges. Heath also challenged the jurisdiction of the federal government to prosecute him in federal district court.
Over the next three years Heath spent thousands of hours that could have been spent working to provide for his family and thousands of his limited dollars researching the law and filing pleadings in his behalf. A review of Heath's complete file shows how he honored the court with impeccable research and timely filings that were presented in proper form. No matter how flawless his logic or how eloquent his motions, Heath's defense was sabotaged by the court.
The entire prosecution was based upon the evolving perjuries of Didier that were apparently prompted by McHugh with the approval of Judge Lodge. During the course of the proceedings, pertinent case law and U.S. Supreme Court decisions were ignored, discovery documents were not provided and Heath was not allowed to depose Didier--the main witness in this case.
Heath's well-researched motions regarding jurisdiction, dismissal, recusal and discovery were summarily denied by Judge Lodge as was his demand for a jury trial.
Once Judge Lodge had effectively cut off avenues Heath had built to prove his innocence the matter proceeded to trial where the raft of official lies and deceit were permitted to float past Judge Lodge one more time. The record shows that Heath caught Didier in numerous lies and that cross examination of himself as a witness in his own defense only supported the defense of himself against the federal government.
At sentencing the U.S. attorney suggested a $500 fine and two years probation. Heath had studied the terms of probation and its license for intrusion into his family's life. Much to the dismay of Judge Lodge, Heath stated he would not be willing to comply with the terms of probation.
Judge Lodge chastised Heath for being a selfish man who was setting a bad example for his children and then he passed sentence. "It is the judgment of this court, Mr. Heath, in light of your comments and statements made to the court and the facts that were produced in this trial concerning your disrespect for the law and encouraging others to defy the law, that you be sentenced to the bureau of prisons for a period of six months. I am going to suspend three months of that sentence providing that you neither act as a spokesman for others suggesting defiance or ignoring of the law, or aid, assist, counsel or induce others to ignore or violate the law."
Judge Lodge also gave Heath 200 hours of community service and, at the insistence of the U.S. attorney, two years probation.
Judge Lodge rejected Heath's oral motion for reconsideration of sentence, but granted Heath's motion for stay of execution pending appeal that he had filed prior to sentencing. Of the eight issues Heath raised upon appeal, two were combined into one by the Ninth Circuit Court and one issue was completely ignored. The Ninth Circuit answered with a Memorandum Decision, which, according to Heath, basically answered complex issues with one line answers that essentially state, "because we can," or, "because we don't have to."
To this day one question remains unanswered by the appellate court. The Sixth Amendment and Article III, Section 2, Clause 3 of the Constitution essentially state that all criminal prosecutions shall be tried by a jury, yet Heath was denied a jury in this criminal prosecution. Another fundamental issue that was poorly answered by the 9th Circuit was whether federal criminal jurisdiction existed to prosecute this case.
Heath challenged jurisdiction, presenting ample case law showing that such jurisdiction did not exist on lands within a state unless the federal government had properly acquired the lands and the state Legislature ceded jurisdiction to the federal government. Heath sought evidence of ownership and the prerequisite cession of state jurisdiction in discovery.
The prosecution did not evidence any record of state cession of jurisdiction or the proper purchase of the land by the federal government. The government based its claim of ownership on a 1905 Presidential Proclamation, which "reserved" the land where Heath and the others had been swimming. The forest service now "administers" that land.
If the state would defend its own constitutional sovereignty, the evidence shows that Didier would have had no authority to even question the swimmers. The evidence also shows that Didier became angry when his authority was challenged and that he himself did not know by what federal authority he was empowered to question, detain or cite the swimmers.
Documents, witness statements, logic and inconsistencies in his testimony indicate that Didier perjured himself under oath repeatedly to justify the ongoing prosecution in spite of exculpatory evidence. The court record illustrates how the U.S. attorney participated in the relentless criminal persecution of Heath on trumped up charges.
Judge Lodge's statement at sentencing proves that Heath was to be punished well beyond the penalty established for the "petty offense" because he chose to challenge the legitimacy of federal authority.
Hari Heath has written his entire story regarding his attempts to find justice and a clear contemporary ruling on federal authority. It can be found on The Idaho Observer website at:
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