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Memorandum of Law filed 11/3/03
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MOL

PROCEDURAL HISTORY

 

                While Judge Patterson’s referral was a welcome sign that at last someone within the judicial system cared about its integrity, Plaintiff has evidence of a vastly greater scope of criminality and has sought to convey that evidence to a Grand Jury.  When federal prosecutors had failed, for eight months, to indicate the slightest interest in discharging their sworn duty, Plaintiff invoked his right, conferred by 18 U.S.C. § 3332(a), to compel communication to a Grand Jury of his charges against the Handlers, Roth, their accomplices, and their attorneys.  Plaintiff first invoked § 3332(a) in a letter to the offices of the U.S. Attorneys for the Eastern and Southern Districts.  When his letter was ignored, Plaintiff filed the instant case on May 23, 2002, seeking to compel the Government or, in the alternative, this court to convey his evidence and charges to a Grand Jury.  The Defendants15 were served promptly. 

                Repeated enlargements of time followed service upon the Defendants.  On December 8, 2002, Magistrate-Judge Cheryl Pollack conducted a status conference.  There, Andrew Hinton, Chief of the Criminal Division in the office of the U.S. Attorney for the Eastern District, offered to arrange a meeting between Plaintiff and members of that office at which Plaintiff would be afforded a full opportunity to explain the evidence that he wished to be presented to the Grand Jury.   Plaintiff agreed to such a meeting, although the meeting had been more than a year in coming.iii (See End Notes).  But Plaintiff heard nothing further about the suggested meeting, and then he learned that Mr. Hinton had left the U.S. Attorney’s office.16  Neither was a response to the complaint forthcoming, nor any other communication from that office, until a further request for enlargement of time was filed by Defendants on February 9, 2003.  Although Plaintiff objected, Defendants were given a final enlargement until May 8, 2003. 

                Plaintiff received a letter from Defendants’ counsel,17 dated May 8, 2003, stating that a response to the initial complaint had been filed under seal and ex parte.  On May 19, 2003, Plaintiff filed with this court a letter protesting the nature of Defendants’ filing and the lack of an opportunity for him to respond to it.  On that same day, 11 days after the filing of Defendants’ response to the complaint,18 this court issued a Memorandum and Order dismissing the instant case.  Here, in its entirety, is the text of the court’s memorandum:

                Plaintiff filed a complaint pursuant to 28 U.S.C. § 3332(a) [19] compel defendants to present evidence before grand juries in the Southern and Eastern Districts of New York.[20]  For the reasons set forth in defendants’ affidavits and memorandum of law filed ex parte under seal, the Court determines that the action is moot and dismisses the complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(1).  The Court will not direct that the documents be unsealed to permit disclosure to plaintiff.  See Fed. R. Crim. P. 6(e)(3)(C)(1).

 

SO ORDERED

 

                On May 30, 2003, the court issued an order denying what it appears to have regarded as a request for “reconsideration” that was conveyed by Plaintiff’s letter of May 19.  At first blush it may appear that the court was unaware of Plaintiff’s letter when it issued its Memorandum and Order on May 19.  But it seems clear that the third sentence  – which says the court “will not direct that the documents be unsealed to permit disclosure to plaintiff” – of the Memorandum is a reply to Plaintiff’s request that the papers filed by Defendants be unsealed.   Clearly, moreover, the effect of the order denying “reconsideration” is to create an erroneous appearance that Plaintiff was aware of the dispositive Memorandum and Order at the time he submitted the letter of the same date to the court, and that therefore Plaintiff had been given an opportunity, after learning of the dismissal, to persuade the court that is claims were viable.21  

                Plaintiff noted a timely appeal, prior to the above-mentioned memorandum and order of May 30 denying reconsideration, and the appeal is pending as of the instant filing.  An appeal does not, of course, foreclose F.R.Civ.P. 60(b) relief.

ADDITIONAL FACTS NOW AVAILABLE TO PLAINTIFF THAT WERE UNAVAILABLE TO PLAINTIFF WHEN THE COMPLAINT HEREIN WAS FILED

 

Plainly, when he filed the instant case, Plaintiff had no reason to believe that there had been any (alleged) investigation of the Handlers and/or Mr. Roth or that there had been a good-faith attempt to secure indictments against them.  Thus Plaintiff had no reason to identify or distinguish the offenses as to which his own testimony would have been most crucial: attempted extortion, blackmail, and obstructions of justice, in connection with the targets’ attempts to silence Plaintiff and thus extinguish his complaints that they had committed and suborned perjury and engaged in a conspiracy to commit perjury in order to frustrate Plaintiff’s efforts to collect upon his above-described judgments against Emmerich Handler.23   The foregoing offenses would be essential in any legitimate attempt to secure indictments against these targets because these offenses would provide evidence of their “guilty knowledge”.

                Moreover, Plaintiff’s lack of awareness of any prior investigation and/or submission of evidence to a Grand Jury is all the more understandable because Plaintiff believed at the time of the filing of his complaint herein – and Plaintiff still believes – that no rational prosecutor would attempt in good faith to secure indictments against these targets without Plaintiff’s testimony, at least as to those matters reported by Plaintiff to the Government. 

 

ARGUMENT

POINT I.


F.R.CIV.P. 60(b)(1) PROVIDES FOR CORRECTION OF SUBSTANTIVE MISTAKES OF LAW AND/OR FACT.

 

                Plaintiff submits that in dismissing the instant case as moot this court committed substantive errors of law, and that F.R.Civ.P. 60(b) provides authority for correction of these errors.  Plaintiff first addresses the preliminary question of the court’s authority to rectify substantive errors pursuant to F.R.Civ.P. 60(b)(1).


[24] A party may obtain relief from judgment based on "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). The "mistake" provision in Rule 60(b)(1) provides for the reconsideration of judgments only where: * * * the judge has made a substantive mistake of law or fact in the final judgment or order. [Emphasis supplied.]

Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996) (quoting Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990)); see also Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000); Jones v. Theodoroff, No. 01-3314-JWL (D.Kan. 05/28/2003) A party can show exceptional circumstances "by satisfying one or more of Rule 60(b)'s six grounds for relief from judgment."  Van Skiver v. United States, 952 F.2d 1241, 1243-1244 (10th Cir. 1991) (holding that plaintiff's motion must be construed as one pursuant to Rule 60(b) where plaintiff failed to file within 10 days of the district court's judgment).


Baker v. John Morrell & Co., No. C01-4003-MWB (N.D.Iowa 06/11/2003), 2003.NIA.0000072< http://www.versuslaw.com>.

                Furthermore, the authorities cited by the Baker court make it crystal clear that, although relief pursuant to F.R.Civ.P. 60(b) is committed to the sound discretion of the court:


[37] Rule 60(b) is to be given a liberal construction so as to do substantial justice and "'to prevent the judgment from becoming a vehicle of injustice."'  [Emphasis supplied.] Id. (quoting United States v. Walus, 616 F.2d 283, 288 (7th Cir. 1980)). This motion is grounded in equity and exists "to preserve the delicate balance between the sanctity of final judgments . . . and the incessant command of a court's conscience that justice be done in light of all the facts." Id. (internal quotations omitted) (alterations in original). See also 11 CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE : CIVIL 2D § 2857, at 255 (2d ed. 1995) ("Equitable principles may be taken into account by a court in the exercise of its discretion under Rule 60(b).").

[38] MIF Realty [L.P. v. Rochester Assocs., 92 F.3d 752] at 755-56 [(8th Cir. 1996)].  Although Rule 60(b) motions are "disfavored," the Eighth Circuit Court of Appeals has also "recognize[d] that they 'serve a useful, proper and necessary purpose in maintaining the integrity of the trial process, and a trial court will be reversed where an abuse of discretion occurs."' Id. at 755 (quoting Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984)). An "abuse of discretion" occurs "if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions." [Emphasis supplied.]  Id. (internal quotation marks omitted) (quoting Hosna v. Groose, 80 F.3d 298, 303 (8th Cir. 1996), in turn quoting International Ass'n of Machinists & Aerospace Workers v. Soo Line R.R., 850 F.2d 368, 374 (8th Cir. 1988) (en banc )).


Baker, supra.

                In sum, then, this court has ample authority to vacate or reverse its dismissal of the instant case, and if it agrees that the dismissal constituted a “substantive error of law or fact”, the court has a sacred duty to do so. 

POINT II.

THE COURT COMMITTED A SUBSTANTIVE ERROR OF LAW BY FAILING TO APPLY THE FULL THRUST OF § 3332(a).

 

                The most profound of the court’s “substantive error[s] of law” was to its failure to respect and apply the full thrust of § 3332(a) of Title 18, U.S.C.,24 as a “window” for the People to monitor the performance of the criminal justice system of the United States and to assure the integrity and competence of those charged with administering that system.  Manifestly, § 3332(a) cannot be satisfied by a court saying, in effect, “trust us”.  Rather, a person who provides crime-related information to the Government for submission to a Grand Jury – who may have a crucial viewpoint – should be afforded a means of confirming that the Government has acted both responsively and responsibly with regard to that information. 

                Section 3332(a) was enacted as part of Title I of the Organized Crime Control Act of 1970, of which Title IX was RICO – the Racketeer and Corrupt Organizations Act.  Unquestionably RICO was intended to encourage the class of victims it defined to act as private attorneys general:


[46] * * *  The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, "private attorneys general," dedicated to eliminating racketeering activity. [Footnote omitted.] Id. [Klehr v. A. O. Smith Corp., 521 U. S. 179,] at 187 [1997] (citing [Agency Holding Corp. v.] Malley-Duff [& Associates, Inc.], 483 U. S. [143] at 151 [1987] (civil RICO specifically has a "further purpose [of] encouraging potential private plaintiffs diligently to investigate").

 


Rotella v. Wood, 528 U.S. 549, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (U.S. 02/23/2000) (Souter, J.). 

                Thus, § 3332(a) must be construed in a manner that is consistent with expanded opportunity for full redress that is conferred by RICO.  Plaintiff proposes the following rule as a standard for effectuating § 3332(a)’s implied mandate for holding accountable those government officials with authority to make decisions or to make recommendations to decision-makers in the criminal-justice arena:  


Any person who communicates in good faith, whether directly or via a responsible representative of the Government,  to an attorney appearing before a Grand Jury on behalf of the United States facts that, if proved, would establish criminal liability under the laws of the United States shall be afforded such judicial process as is necessary to obtain a judicial determination, by application of a reasonable objective standard, of whether the facts thus reported by him or her have been investigated and acted upon, by seeking indictment by a Grand Jury or utilizing criminal information where appropriate, by the Government in a manner and to a degree commensurate with the gravity of the wrongs reported and with the quality and/or quantity of evidence provided or offered with or in support of the allegations of wrongdoing.  The judicial process afforded in accordance with the foregoing shall be conducted in a public forum except where it is shown, in a public forum to the greatest extent practicable,  that Grand Jury secrecy or some other basis for withholding information from the public is necessary to avoid compromising or interfering with an official investigation and actually preventing the charging and/or apprehension of an identified or identifiable individual. 

 


                The foregoing standard not only would effectuate the full meaning of § 3332(a), but it also is consistent with companion proviso of Title I of the 1970 Act, codified at 18 U.S.C. § 3333, iiii. (See End Notes) that insures that grand juries may evaluate and report on official misconduct that falls short of criminal misconduct, if that misconduct “involv[es] organized crime”.25   The impact of such misconduct by government prosecutors could be so enormously detrimental to the fight against criminal activities targeted by RICO that is inconceivable that the Congress even remotely considered exempting the government’s prosecutorial forces from being targeted by § 3333 reports. 

                The foregoing proposal is consistent also with the mandate for public scrutiny of the Grand Jury process that is set forth in 28 U.S.C.A. § 1868, which permits “public inspection for the purpose of determining the validity of the selection of any jury.v. (See End Notes) 26 

                It thus appears, from the language of § 3332(a), that any person wishing to procure submission to a Grand Jury of evidence of serious, indictable federal offenses need only submit that evidence to an attorney “appearing on behalf” of the Government.  Then, it would appear further from the above statutory language that  the Government is required to present the evidence thus received to an appropriate Grand Jury.26  Moreover, if the above-quoted


          15  Defendants are the Attorney General of the United States and the U.S. Attorneys for the Eastern and Southern Districts of New York, all in their official capacities.  

 

          16  Mr. Hinton’s departure came within a year of the departure of his predecessor, Jonathan Sack, Esq.  The position that Mr. Sack assumed after his departure from the Government may provide a hint as to the reason for his apparent indifference to his duties when they required that he evaluate the evidence provided by Plaintiff in support of indicting Handler, Roth, and their attorneys.  Mr. Sack joined the law firm of  Morvillo, Abramowitz, Grand, Iason & Silberberg – which, as noted supra, was one of the firms retained by Handler, despite his self-proclaimed poverty, in connection with the referral by Judge Patterson for potential prosecution. 

          17  The letter was signed by an Assistant U.S. Attorney in the Eastern District, Sandra L. Levy, Esq., whose name and title appeared under the name of the U.S. Attorney for the Eastern District, Roslynn R. Mauskopf. 

          18  For reasons that can only be inferred, this court chooses not to make its Local Rules – or its reported opinions, for that matter – available on the Internet, but Plaintiff assumes that 11 days is a lesser period than is allowed by the pertinent rule for a party to reply to a potentially dispositive motion. 

          19  The statutory authority invoked by Plaintiff is found in § 3332(a) of Title 18, not Title 28, in which no §3332 appears.  The complaint correctly cites to Title 18 at ¶¶ 6, 82, and 112, but cites incorrectly to Title 28 at ¶¶ 119 and 121, in the subheadings for sections V and VI, and in the “Wherefore” clause, all at page 16 of the complaint.  Thus, the incorrect citation in the court’s Memorandum and Order raises inferences that (1) the complaint was never read in its entirety; (2) § 3332(a) of Title 18 was never read; (3) the operative statute was miscited; and (4) Defendants’ counsel miscited the operative statute. 

          20  In his complaint, at 16, ¶¶ 121 and 123, Plaintiff stated as follows:

 

          121.   Plaintiff, having presented the pertinent information to attorneys of the United States and having made request authorized by law, is entitled to a remedy for violation of 28 [sic, 18] U.S.C. 3332(a) by means of a Court order directing the Defendants or any of them to present the evidence to the Grand Jury. [Italics added.]

* * *

          123.   Plaintiff is alternatively entitled by the statute to have the Court itself present to the Grand Jury the information about alleged offenses contained in the attachments hereto. [Italics added.] 

 

Thus it is difficult to understand how the court interpreted the complaint as seeking presentation of evidence to grand juries in both the Eastern and Southern Districts. 

 

         

 

 

 

21 The assigned judge in this case is the Hon. Frederick Block.  There certainly may be an appearance of impropriety.  Bernard Nussbaum, Esq., to whom Cleary Gottlieb had turned after their participation in the fraud against the Plaintiff herein was revealed, played a central role in steering the case against Cleary Gottlieb out of the federal court into the state court and subsequently, when the state court proceeding was removed from New York County to Kings County by Justice Richard D. Huttner of the Supreme Court of the State of New York, Kings County (for whose election Mr. Nussbaum had contributed).  Bernard Nussbaum, Esq., after rising to prominence in the New York City legal community, served as counsel to President Clinton at the time of Judge Block’s 1994 appointment to his present position.  News reports indicate that Mr. Nussbaum was personally involved in President Clinton’s first two attempts to fill the position of Attorney General, and it is almost inconceivable that Mr. Nussbaum would not have been involved in the appointment of judges to the courts in which he had practiced for many years.   

 

 

 

 

 

 

 

          23  Plaintiff’s testimony would have been crucial also in establishing the criminal liability of members of the prestigious law firm of Cleary Gottlieb Steen & Hamilton in connection with their permitting the seizure by Handler of two Brooklyn apartment buildings, which the firm had agreed to safeguard.  The firm then denied that the seizure had occurred, because it was believed that Plaintiff’s demise was imminent, and that therefore the theft of the properties would never be  discovered.

          24        Section 3332(a) of Title 18, U.S.C., provides as follows:

(a) It shall be the duty of each such Grand Jury impaneled within any judicial district to inquire into offenses against the criminal laws of the United States alleged to have been committed within that district. Such alleged offenses may be brought to the attention of the Grand Jury by the court or by any attorney appearing on behalf of the United States for the presentation of
evidence.   Any such attorney receiving information concerning such an alleged offense from any other person SHALL, if requested by such other person, inform the Grand Jury of such alleged offense, the identity of such other person, and such attorney's action or recommendation.
[Emphasis and capitals added.] 

 

 

          25  Plaintiff argues infra that a Grand Jury should have the opportunity to evaluate the conduct of the Defendants herein and their subordinates. 

 

          26  Indeed, the statutory language refers only to “information concerning . . . an alleged offense”, so there is no requirement that the person reporting a crime to the Government produce any evidence..  But Plaintiff did produce evidence, and he proffered and identified sources of substantial additional evidence.  Thus, Plaintiff submits that he provided the Government with a substantial, if not overwhelming basis for seeking indictments of the targets, Emmerich and Rita Handler, Samuel Roth, and their accomplice attorneys, including the findings of two federal judges and a civil jury’s conclusions, set forth in its responses to special interrogatories, that these individuals had committed the crimes charged to them by Plaintiff. 



 


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