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Memorandum of Law filed 11/3/03
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MOL

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

 

--------------------------------------------------------X

ISRAEL WEINSTOCK,

                                                Plaintiff,                                Case No. CV-02-3060

                                -against-                                                                                      

                                                                                                                                      

ROSLYNN R. MAUSKOPF, ESQ., as United

States Attorney for the Eastern District of New York;                                       

JAMES COMEY, ESQ., as United States                               

Attorney for the Southern District of New York;                                

And JOHN ASHCROFT, ESQ., as Attorney          

General of the United States,

                                                Defendants.

--------------------------------------------------------X

 

 

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT

 


                Plaintiff, Israel Weinstock, pro se, presents the argument and verified facts set forth herein to support his accompanying motion for relief from the judgment of this court as set forth in its Memorandum and Order dated May 19, 2003.   The relief sought herein is available pursuant to the due process guarantee of the Fifth Amendment; F.R.Civ.P. 60(b)(1), (3), and (6); F.R.Crim.P. 6(e); the All Writs Statute, 28 U.S.C. 1651; and the inherent authority of the court. 

 

INTRODUCTION

                The action sub judice poses issues fundamental to the functioning of our society and especially the judicial system: can the rich and powerful avoid prosecution for their criminal behavior by retaining prestigious and well-connected attorneys?  And can those prestigious and well-connected attorneys participate in their clients’ fraudulent schemes but yet avoid prosecution, of themselves and their clients, because of their connections?  The answer to be drawn from the instant case, as it stands today, is that, indeed, the rich and powerful are not only above the law, but they can – and in this case they did – use the courts to legitimize criminal behavior.  

                Plaintiff, while attempting to retain his right to multi-million dollar properties from which he was defrauded by one Emmerich Handler with the active participation of Cleary Gottlieb Steen & Hamilton and others, became aware that he was not the only victim of Handler’s frauds but that the Federal Deposit Insurance Corporation was similarly being defrauded of millions of dollars.  The Plaintiff was able to present evidence of the said frauds to Judge Robert Patterson of the Unites States District Court for the Southern District of New York.  Judge Patterson became so enraged at the demonstrable frauds perpetrated by Handler and his accomplices that he referred the matter to the Office of the U.S. Attorney for prosecution.  The federal court proceedings resulted in irrefutable evidence that Handler, his attorneys and other accomplices had been involved in a pattern of multi-million dollar frauds.  When USDC Judge Patterson referred the conduct of Handler and his accomplices to the Office of the U.S. Attorney, Handler and his accomplices retained the services of not less than four criminal defense firms.  The first step taken by said criminal defense firms in behalf of the likely defendants in the criminal case was to discredit the plaintiff herein and to silence him by use of extortionary threats that if he proceeded with his quest for justice he would face sever consequences, including disbarment.  The plaintiff refused to be intimidated.  As a consequence, the plaintiff has been corruptly disbarred, and thus deprived of his livelihood and subjected to public disgrace after a 42-year unblemished career, after being offered an opportunity to keep his license in exchange for ending his insistence that the criminal misconduct perpetrated on extraordinary scale be duly prosecuted.  And this was all at the instance of attorneys, including the debtor from whom Plaintiff has sought to collect, who remain licensed to practice law and, to date, have successfully evaded prosecution for the most brazen of crimes.   Evidence offered by Plaintiff – supported by the findings of TWO federal judges1 and the verdict of a State civil jury2shows that the Federal Deposit Insurance Corporation, the Internal Revenue Service, and the State of New York – as well as Plaintiff himself – were defrauded of millions of dollars, and with the assistance and connivance of some of most highly paid and well-connected attorneys in the land. 

                In the instant case, Plaintiff seeks to convey to a Grand Jury evidence that is sufficient to convict – and, thus, certainly to indict – Emmerich Handler, Esq.; his wife, Rita Handler; their business partner and confederate, Samuel Roth; and their accomplices – including attorneys3 – for the crimes of perjury, subornation of perjury, bankruptcy fraud, mail fraud, wire fraud, obstruction of justice, extortion, and conspiracy to commit the foregoing crimes.   

                I will not deny or seek to minimize my personal involvement in the matters complained of: I have very likely suffered the greatest loss – financially, professionally, and personally – of all of the victims of the crimes alleged.  I suffered disbarment without a hearing on the merits of the four charges brought against me, and after counsel for the Grievance Committee had “suggested”, explicitly, that the charges against me would “go away” if I would abandon my criminal and ethical charges against Handler and his attorneys in the firm Cleary Gottlieb Steen & Hamilton (“Cleary Gottlieb”).   My sworn affidavit to this effect, which manifestly demonstrated that I was competent to testify in support of this allegation, and my attempts to use compulsory process to adduce evidence to corroborate my protests were brushed aside.4  Even assuming arguendo that the charges against me were valid, moreover, no other lawyer has been disbarred or suspended on such charges.5 There was clear and convincing evidence that the complaints filed against me with the Grievance Committee were prepared and filed with the assistance of the four separate criminal defense firms only after the within Plaintiff, through his entity MLE Realty, purchased a judgment which the F.D.I.C. had obtained against Emmerich Handler and Rita Handler, after the Handlers had denied that they had any assets whatsoever capable of satisfying the said judgment in whole or in part. In contrast, Handler had testified before Justice Lewis Douglass, New York State Supreme Court, Kings County, that he (or his wife) had an ownership interest in 4200/4211 Avenue K Brooklyn, New York, which interest was worth in excess of $1.5 million.  Handler had sworn that he had sold his interest to one Samuel Roth who, in turn, swore that he had donated the assets to the Kaminetzer Yeshiva of Jerusalem (“KYJ”), a charitable institution.  Handler subsequently admitted that the said charitable institution was his nominee.

HANDLER AND ACCOMPLICES FACE IMMINENT       PROSECUTION

 When the two irreconcilably conflicting positions (made under oath) intersected, Judge Patterson alerted the Handlers that they faced criminal prosecution for lying and fraud.  Judge Patterson also found that the alleged transfer to KYJ was “proven false.”  Thus Handler and his accomplices were facing imminent indictment and conviction. A Grand Jury inquiry would have implicated Cleary Gottlieb Steen & Hamilton in the massive fraud.  It is to be noted that Cleary Gottlieb Steen & Hamilton purported to represent “KYJ”, a charitable institution which was subsequently revealed to be nothing but a nominee for Handler.

                While the disciplinary charges were being prosecuted against me, Handler was represented by several firms, at least one of which provided him with the services of a former counsel to a Grievance Committee, in an effort to avoid payment of his debts by the fraudulent concealment of his assets, primarily by “parking” them with various persons whom he then persuaded to lie concerning ownership of the assets.  And from mid-1997 he engaged


          1  Plaintiff refers to U.S. District Judge Robert P. Patterson, Jr., of the Southern District of New York; and Hon. Richard Bohanon of the U.S. Bankruptcy Court for the Southern District. 

          2  In a defamation action brought in the Supreme Court, King’s County, against Plaintiff by Handler and Roth, the jury concluded, in its answers to special interrogatories, that Plaintiff’s defamatory allegations – that Handler and Roth and their attorneys had used the courts to legitimize their criminal wrongdoing – were true. 

          3  As will be shown infra, special recognition in this respect should be given to Cleary Gottlieb Steen & Hamilton (“Cleary Gottlieb”, a major law firm whose revenues reputedly rank ninth in the nation.   The jury in the defamation case unanimously rejected testimony of George Weisz, Esq., a senior partner and litigator for Cleary Gottlieb.

          4  Indeed, my protests were cited by the court that affirmed my disbarment as evidence of lack of contrition:

 

In determining the appropriate measure of discipline to impose, the court has considered the respondent’s stubborn refusal to acknowledge his misconduct and his attempt to blame everyone else, including the Grievance Committee and this court, for the situation in which he now finds himself.  He is guilty of serious misconduct, including harassment [in 1997], coercion, and overreaching [both in 1984 and 1985].  Despite the fact that he has no prior disciplinary history, his disbarment is warranted. 

 

In re Weinstock, 292 A.D.2d 1, 740 N.Y.S.2d 128 (N.Y. App. Div. April 8, 2002). 

          5  The charges, referred to a Special Referee on November 16, 1999, and resulting in my disbarment on April 8, 2002, were as follows: (1) that in 1984 and subsequently [in February of 1985] I had engaged in overreaching and coercive conduct in obtaining ownership of an apartment complex from a client, in violation of Code of Professional Responsibility DR7-102(a)(8)[now 7] (22 NYCRR 1200.33[a][8][now 7]); (2) that my acquisition of ownership of the apartment complex violated Code of Professional Responsibility DR5-103 (22 NYCRR 1200.3), which prohibits lawyers from obtaining a propriety interest in the subject matter of litigation they conduct; (3) that I had engaged in conduct prejudicial to the administration of justice, in violation of Code of Professional Responsibility DR 1-102(a)(5), by instituting an appeal in 1997 of the trial court’s judgment in my divorce case, which (appeal) the court found to have been intended to harass my former spouse; and (4) that the foregoing appeal was instituted to “maliciously injure” my former spouse and was thus violative also of Code of Professional Responsibility DR7-102(a)(1) (22 NYCRR 1200.33[a][1]). 

 

The appeal in the domestic case had already drawn, in 1998, an extraordinary sanction of $10,000, which has never been matched for the bringing of a single appeal, and the interests I had acquired in 1984 and 1985 in the apartment complex had been taken from me, essentially sua sponte and as a result of yet another fraud perpetrated and procured by Handler, by a decision of the Supreme Court, King’s County, issued on March 13, 1997.  Thus was Plaintiff disbarred by application of preclusion principles, but without recognizing his fundamental right to an opportunity to demonstrate that Handler’s frauds, including extrinsic frauds, had deprived Plaintiff of a full and fair opportunity to litigate the factual determinations that were used for the disbarment. 

 

Plaintiff stands fully prepared to substantiate each and every allegation of fraud.


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