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Memorandum of Law filed 11/3/03
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MOL

enactment is to enjoy any utility is our system of laws, the Government’s submission must occur in a manner that is reasonably calculated to convey to the Grand Jury, competently and in good faith, the full measure of the allegations and evidence that has been received.                  Plaintiff has done everything reasonably necessary to trigger the process envisioned by the above-quoted statute.  Over a period of more than six months, beginning on or about October 24, 2001, he sent letters, accompanied by extensive documentation of the crimes he alleged, to the office of the U.S. Attorney for the Eastern District of New York and attempted to engage attorneys in that office in substantive discussions of the evidence he proffered.   Furthermore, the evidence and information were supported by the findings of two federal judges – U.S. District Judge Patterson and U.S. Bankruptcy Judge Bohanon, both sitting in the Southern District – and a civil jury’s verdict for Plaintiff and its responses to special interrogatories.  It is a matter of record that Judge Patterson made a referral for prosecution of Emmerich Handler for perjury; Judge Bohanon found on the record that Mr. Roth had committed fraud in two or three instances in connection with the proceedings on the bankruptcy petitions filed by Emmerich Handler or Rita Handler. 

                What has occurred to date is the total frustration of Plaintiff’s rights conferred by a reasonable construction of the above-quoted statute.  Worse, Plaintiff has been deprived of the means to identify what means of redress are available to him: he doesn’t know why the targets have not been indicted, or even whether anyone ever became a target as a result of his allegations.27  In a very real sense, for Plaintiff § 3332(a), as applied by this court  has been meaningless, or worse: it presented the illusion of available redress, inducing him to expend substantial efforts that, in retrospect, would have been better spent on the pursuit of other remedies. 

POINT III.

THE COURT’S TOLERANCE OF EX PARTE SUBMISSION OF MATERIALS UNDER SEAL VIOLATED § 3334 OF TITLE 18, U.S.C.

 

                Section 3334 provides as follows:


Sec. 3334. - General provisions

The provisions of chapter 215,[28] title 18, United States Code, and the Federal Rules of Criminal Procedure applicable to regular grand juries shall apply to special grand juries to the extent not inconsistent with sections 3331, 3332, or 3333 of this chapter[.] [Emphasis supplied.]


                Plaintiff submits that the above language means that F.R.Crim.P. 6(e)’s provisions for Grand Jury secrecy do not apply to the extent that they are inconsistent with the need, as urged supra, for a person reporting “alleged offenses” within the meaning of § 3332(a) to insure that the Government’s prosecutorial representatives have acted responsibly.  Indeed, it is clear that § 3334 subordinates Chapter 215 and the Federal Rules of Criminal Procedure to §§ 3331- 3333.   Thus, it seems clear that the report mandated by § 3333 may properly disclosure Grand Jury proceedings – as, for example, when the Grand Jury concludes that noncriminal official misconduct infects its proceedings.  Plaintiff submits that it is equally clear that the Grand Jury secrecy mandated by F.R.Crim.P. 6(e) must be qualified by the need to insure that allegations reported pursuant to § 3332(a) are properly acted upon.   The Congressional goal manifest in the enactment of RICO and the provisions for the public reporting of official misconduct that are set forth in § 3333 cannot be severed from the underlying purposes of § 3332(a): accountability – as well, of course, as enhanced reporting of crime to grand juries. 

POINT IV.

THE COURT’S TOLERANCE OF THE GOVERNMENT’S EX PARTE SUBMISSION OF MATERIALS UNDER SEAL VIOLATED A SUBSTANTIVE COMPONENT OF F.R.CRIM.P. 6(e)(3)(C)(i).

 

                F.R.Crim.P. 6(e)(3)(C)(i) grants an exception to Grand Jury secrecy “when a court so directs preliminarily to or in connection with a judicial proceeding.” [Emphasis supplied.] Below is guidance respectively by the Supreme Court and the Second Circuit concerning the historical bases of Grand Jury secrecy and the exception codified in the above-cited proviso:


[24]         A. The District Court's Authority to Order Disclosure Outside of Rule 6(e)(3)

[25]         There is a tradition in the United States, a tradition that is "older than our Nation itself," that proceedings before a Grand Jury shall generally remain secret. In re Biaggi, 478 F.2d 489, 491 (2d Cir. 1973) (quoting Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959)). This tradition is codified in Federal Rule of Criminal Procedure 6(e). See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 n.9 (1979). The rule of secrecy has been justified by the important ways in which it is said to contribute to the success of grand juries and to the protection of those who appear before them. Its purposes include:

[26]         "(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the Grand Jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] Grand Jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."

 


In Re Petition of Craig, 131 F.3D 99 (2d Cir. 12/15/1997).  

                The Craig court noted further: 


[60] *fn5 In Douglas Oil [Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 n.9 (1979)], the Supreme Court articulated a highly flexible "particularized need" test for parties seeking to compel disclosure under Rule 6(e): "Parties seeking Grand Jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed." [Emphasis supplied.]  Douglas Oil, 441 U.S. at 222. * * *


                Finally, the instant case is readily distinguishable from those cases in which courts have held that FOIA claimants do not qualify for this exception.  See, e.g., McDonnell v. U.S., 4 F.3d 1227 (3d Cir. 09/21/199), 1993.C03.40440,  <http://www.versuslaw.com>.   Here, it is not access to Grand Jury records that Plaintiff seeks, but to vindicate his § 3332(a) right to communicate to the Grand Jury his allegations concerning the commission of felonies by the Handlers, Roth and their accomplices.  Indeed, when Plaintiff initiated the instant case, he had not been confronted with the invocation of Grand Jury secrecy.  But now the Defendants have been allowed by this court to invoke Grand Jury secrecy as a means of thwarting Plaintiff’s right to exercise effectively the substantive rights conferred by § 3332(a).   If a person’s right to exercise these rights can be thwarted by government officials acting in secret, then these rights are meaningless: indeed, if the government can properly do what it did here or if it can otherwise frustrate, for reasons that can never be challenged, the reporting of alleged offenses to grand juries, then § 3332(a) confers no rights upon the citizenry.  Such a result manifestly could not have been intended by the Congress that enacted RICO. 

 

 

POINT V.

THE LEGISLATIVE ENACTMENTS AND JUDICIAL RULES THAT REGULATE THE FLOW OF GOVERNMENTAL INFORMATION IN RESPONSE TO PLAINTIFF’S REPORTING OF CRIMES IN RELIANCE ON § 3332(a) MUST BE CONSTRUED TO FURTHER THE INTERESTES PROTECTED BY THE FIRST AMENDMENT; CONTRARY CONSTRUCTIONS ARE SUBJECT TO STRICT SCRUTINY.

 

                Manifestly, the grudging construction of § 3332(a) that inspired the court’s tolerance of Defendants’ filing of their response to the complaint in secrecy and the court’s own inscrutable disposition of the instant case is wholly irreconcilable with the history and role of the First Amendment.  Plaintiff submits that the more specific provisions of §§ 3332 and 3333 and Rule 6(e) must be read to further, not thwart, the transcendent public and individual interests in effective monitoring of critical government functions and in speaking out to insure that those functions do not fall prey to the forces of despotism.  Only an informed populace can exercise effectively its right to speak out, of course.  Thus Plaintiff can conceive of no valid reason to disqualify an individual from speaking out effectively, by depriving him of precisely the information that he is most qualified to assess: here, Plaintiff is in perhaps the best position to judge whether the information he provided to the Government was properly acted upon. 

                Speech concerning “the commission, and investigation, of a violent crime which had been reported to authorities” is a matter of “paramount public import”.  The Florida Star v. B.J.F., 491 U.S. 524, 536-37 (1989) (reversing State judgment against newspaper for publishing name of rape victim that had been obtained from law enforcement authorities).  Speech concerning crimes costing their victims millions of dollars in unrealized entitlements through a pattern of fraud and deceit are surely as deserving of First Amendment protection.

                Similarly, and more to the point that Plaintiff seeks to make here: 


Commentary and reporting on the criminal justice system is at the core of First Amendment values, for the operation and integrity of that system is of crucial import to citizens concerned with the administration of government. Secrecy of judicial action can only breed ignorance and distrust of courts and suspicion concerning the competence and impartiality of judges; free and robust reporting, criticism, and debate can contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system, as well as improve the quality of that system by subjecting it to the cleansing effects of exposure and public accountability. See, e.g., In re Oliver, supra, at 270-271; L. Brandeis, Other People's Money 62 (1933) ("Sunlight is said to be the best of disinfectants; electric light the most efficient policeman").


Nebraska Press Assn. v. Stuart, 427 U.S. 539, 606 (1976) (Brennan, concurring). 

                Plaintiff submits that the court’s acceptance of the Defendants’ filing under seal effectively restrained him from exercising his free speech and petitioning rights. Permitting Defendants to respond in total secrecy to the complaint was tantamount to imposing a prior restraint upon Plaintiff, for it just as effective as a “gag order” or a jail cell in depriving Plaintiff of the opportunity to comment upon and seek redress against unacceptable conduct by the government. 

                Accordingly, the court’s acceptance of the Defendant’s response under seal should be subject to strict scrutiny, and it clearly does not measure up to that standard. 

 

 

 

POINT VI.

THE COURT’S FINDING OF MOOTNESS WAS A SUBSTANTIVE ERROR WITHIN THE SCOPE OF F.R.CIV.P. 60 (b)(1) CORRECTABILITY.

 

                Although Plaintiff believes that the concept of moot ness is antithetical to the process of obtaining indictments, Plaintiff assumes that the court’s dispositive finding of moot ness resulted from its being informed by Defendants that the charges proffered by Plaintiff had already been presented to the Grand Jury and that the Grand Jury had declined to indict.  The testimony given by Roth before the civil jury on June 26, 2002, to the effect that he testified before a Grand Jury and was “exonerated”, supports that same assumption.  But he said also that he had testified “three to four” years previous to his testimony in the defamation case.   Plaintiff believes that statement was inaccurate. 

                The event most likely to have prompted the Government to seek, or profess to seek, indictments against the Handlers and Mr. Roth was the referral by Judge Patterson.  Plaintiff recalls that the referral was announced by Judge Patterson in 2000.  But the referral, as described by Judge Patterson, was by no means as extensive as the array of criminal charges that Plaintiff communicated to the Government. 

                Also, Plaintiff has consistently complained of a continuing pattern of criminality perpetrated by the targets.29 This pattern manifestly results from, and furthers, a conspiracy among the targets.   Thus the potential criminal liability arising from the wrongs imputed by Plaintiff to the targets could not have been mooted by a single (and no doubt grossly flawed) submission to the Grand Jury.

                 The notion of moot ness also is totally inconsistent with the Government’s option to resubmit matters to a Grand Jury, and inconsistent, Plaintiff submits, with criminal proceedings generally, as long as there is no bar of former jeopardy.  Plaintiff submits, first, that the court’s conclusion that the action or non action by government prosecutors that Plaintiff seeks to challenge is moot is wholly inconsistent with the nature of criminal prosecutions.  Because there is no bar to a resubmission of evidence and facts to the Grand Jury, and because this court has the power and, pursuant to 18 U.S.C. 3332(a), the duty to compel an adequate submission to the Grand Jury of the available facts and evidence, the instant case still presents a “live case [and] controvers[y]”.   

                Here is the pertinent instruction on this point in the United States Attorneys Manual (“USAM”),30 at Section 9-11.120 (“Power of a Grand Jury Limited by Its Function”):

A.  Approval Required Prior to Resubmission of Same Matter to Grand Jury: Once a Grand Jury returns a no-bill or otherwise acts on the merits[31]n declining to return an indictment, the same matter ( i.e., the same transaction or event and the same putative defendant) should not be presented to another Grand Jury or resubmitted to the same Grand Jury without first securing the approval of the responsible United States Attorney. [Emphasis supplied.]

 

                Thus, a fortiori, upon a determination that the submission by the government to the Grand Jury was incomplete or inadequate in light of the available evidence and facts, this court may exercise its inherent authority and that authority also conferred by § 3332(a) to communicate to the Grand Jury the facts and evidence provided by Plaintiff and such other facts and evidence as may be derived from that.  Moreover, Plaintiff’s knowledge and understanding of the subject facts and evidence are clearly necessary for a proper determination by the court of the sufficiency of the government’s submission.   Manifestly, the sufficiency of the government’s submission, given the abundance of available evidence, goes to the very integrity of the prosecutorial function in this District and, indeed, the integrity also of the oversight exercised by the Office of the Attorney General of the United States (“USAG”). 

                In sum, the facts available to Plaintiff point to a sham – a presentment to the Grand Jury that was exceedingly unlikely to produce indictments.  It is clear, moreover, that no such presentment could possibly have included all of the charges proffered by Plaintiff.  Accordingly, the finding of moot ness cannot stand, even when it is viewed through the obfuscating tactic of the ex parte representation to the court, under seal. 

                Furthermore, this court’s finding of moot ness – on the basis of the Government ex parte submission under seal – is also a grievous wound to the body politic, as well as an inappropriate and unfair impediment to Plaintiff’s ongoing, legitimate efforts to insure that the crimes he has reported are ultimately prosecuted.

                By its actions in the instant case, the court has declared itself and the federal prosecutorial function to be beyond scrutiny by mere citizens, and beyond any meaningful accountability.  As noted supra, Plaintiff attaches a vastly different meaning to Section 3332(a), believing that this enactment reflects one of those rare instances when the Congress felt it necessary to codify the right of the private citizen32 to participate in an important governmental function.   This court has attenuated that right to an irreducible minimum.  All that Plaintiff can know on the present record is that something must have been communicated to a Grand Jury concerning his allegations. 

                The manner in which the instant case was disposed of raises concerns that this court, while virtually eliminating the reporting person’s right to scrutinize the Government’s actions in response to a report of alleged offenses, may have minimized, too, the burden that such a report places on the Government.  Indeed, all that  the literal language of § 3332(a) requires is that the Grand Jury be “inform[ed] of such alleged offense,” Plaintiff’s identity, and the “action or recommendation” of the attorney who communicates “such alleged offense” to the Grand Jury. [Emphasis added.]   Note that the statutory language says nothing about the submission of evidence to the Grand Jury, and it in no way inhibits the government from recommending that the Grand Jury not investigate and not consider indictments.

                Thus the following scenario is quite plausible, on the basis of the record as it has been revealed to Plaintiff:


                PROSECUTOR TO GRAND JURY: Israel Weinstock accuses Emmerich and Rita Handler and Samuel Roth of perjury, conspiracy to commit perjury, and subornation of perjury; mail fraud, wire fraud, bank fraud, and bankruptcy fraud; attempted extortion by seeking to secure Mr. Weinstock’s silence concerning the foregoing matters by  threatening Mr. Weinstock with disbarment from the practice of law in the State of New York and procuring similar extortionate threats against Mr. Weinstock by counsel to the Grievance Committee of the Eleventh Department of the New York Supreme Court. 

 

                GRAND JURY MEMBER OR FOREPERSON: What action has been taken by the government?

 

                PROSECUTOR:  None.

 

                GRAND JURY MEMBER OR FOREPERSON:   Why was no action taken?

 

                PROSECUTOR: Our office believes that Mr. Weinstock, a disbarred  and disgruntled former lawyer, has made these accusations in order to facilitate his collection of a judgment against the Handlers and to raise questions about his disbarment.  We believe this matter should remain in the civil arena and that his disbarment should remain undisturbed.

 

                GRAND JURY MEMBER OR FOREPERSON:   What is your recommendation to the Grand Jury?

 

                PROSECUTOR: That it take no action to investigate or proceed to consider indictments. 

 

                GRAND JURY MEMBER OR FOREPERSON:   Thank you.  What is next on our agenda? 

 


                Furthermore, given the plausibility of the foregoing, here is an equally plausible surmise of the substance of the “affidavits” submitted by Defendants: 


An attorney for the government presented to the Grand Jury Mr. Weinstock’s allegations concerning crimes allegedly perpetrated by Emmerich and Rita Handler and Samuel Roth, with the identity of Mr. Weinstock, a statement of the response of this office to Mr. Weinstock’s allegations, and the recommendation of this office.

 


And the substance of the Defendants’ “memorandum” referred to by the court:


There has been no showing of any basis for application of any the exceptions to the requirement of Grand Jury secrecy set forth in F.R.Crim.P. 6(e).  Accordingly, Defendants and, Defendants respectfully suggest, this court are barred from revealing, to Plaintiff or anyone else not among those recipients authorized by the foregoing Rule, any information beyond that set forth in their affidavits. 

 


                Evidently the court and the Defendants either engaged in the foregoing charade33 or they are willing to allow members of the public to assume they did so.        As noted above, Plaintiff ascribes a much more profound import to § 3332(a).  Read more broadly, this enactment provides a crucial mechanism for scrutinizing – and thus restraining – the exercise of prosecutorial discretion: not for the protection of possible targets of prosecution, but to insure that the interests of victims of crimes and the public interest in the prosecution of criminal wrongdoing is vindicated.

                In sum, then, this case presents a collision between the populist notion that private citizens whose complaints of criminal activity are presented to a Grand Jury must have the right also to scrutinize that process and thus insure that it is responsive to such complaints.  The view of the Defendants and the court, on the other hand, is that private citizens whose complaints are communicated to grand juries pursuant to § 3332(a) must simply “trust us”.34   Citizens who wish to retain the power of self-government place such trust in autocratic, unexplained, and unreviewable actions of unelected government officials only at great peril to their retention of that power. 

                The court’s finding of moot ness, then, omits totally the critical function, and utility, of transparency.  Plaintiff recognizes, of course, that transparency is not required of the Grand Jury itself – indeed, quite the opposite.  But what Plaintiff seeks here, on the basis of the foregoing argument, is legitimate scrutiny of the actions of the prosecutors.   Thus, to whatever extent Plaintiff’s request would require disclosure of the actions of the Grand Jury itself beyond the requirements of §§  3332(a), 3333, 3334, and F.R.Crim.P. 6(e)(3)(E)(i), the impact of that disclosure should be weighed against the prior disclosure by Mr. Roth, in his public testimony, that he was “exonerated” by the Grand Jury.   One factor is the benefit of correcting the record of the “court of public opinion” to dissipate the public cynicism that would otherwise attach to this saga – by dissemination of an explanation of how this prosecution failed.   Such an explanation also would militate against recurrence. 

 

 

 

 

 

 

POINT VII.

THE COURT’S FINDING OF MOOTNESS MUST BE SET ASIDE ON GROUNDS THAT THE HARM THAT THE PLAINTIFF SEEKS TO REMEDY HEREIN IS “CAPABLE OF REPETITION, YET EVADING THE REVIEW”.

               

                The Second Circuit has explained the moot ness doctrine as follows:



          27  Mr. Roth’s testimony in the civil trial is obviously not dispositive of this question, since his civil testimony was that he had testified before the Grand Jury some “three-to-four years” prior to June 26, 2002, the date of his civil testimony. 

          28  Chapter 215 of Title 18 comprises Sections 3321 and 3322, which govern respectively the number of persons to serve on a Grand Jury and disclosures of information received directly or indirectly from grand juries to facilitate prosecution of banking law violations. 

          29  See, e.g., Plaintiff’s letter of February 20, 2001, to Judge Patterson, Exhibit 1 to Plaintiff’s affidavit submitted herewith.

          30  USAM is available on the Internet as a “link” from www.usdoj.gov.

          31  It would appear that any submission to the Grand Jury of evidence concerning the crimes alleged by Plaintiff was so flawed as to be unworthy of being considered a submission “on the merits”. 

          32  Nothing in the language or history of Section 3332(a) suggests it can be invoked only by persons who enjoy the full rights of citizens of the United States; rather, Plaintiff uses the term “citizen” to refer to participants in our representative democracy.

          33  Plaintiff is a poster boy for the dysfunctionality of the courts.  The “targets” of Plaintiff’s criminal complaints have evaded indictment, and made good their threat to take his law license if he refused to keep silent.  Plaintiff is hard-pressed to discern how the traditional restraints on attorney criticism of the court furthers any legitimate goal.  Indeed, attorneys should spread the word – Paul Revere-like – when they discover judicial miscarriages. 

          34  At this juncture it is easy to envision King George III fuming about the state of the New World in 1776: “Who do those colonists think they are?  I decide how their tariff monies are spent.”  


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