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Memorandum of Law filed 11/3/03
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MOL

The moot ness doctrine is derived from Article III of the Constitution, which provides that federal courts may decide only live cases or controversies.   [Emphasis added.]  Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998). "This case-or controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate." Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998), cert. denied, 526 U.S. 1131 (1999). "A case becomes moot when interim relief or events have eradicated the effects of the defendant's act or omission, and there is no reasonable expectation that the alleged violation will recur." Irish Lesbian and Gay Org., 143 F.3d at 647. We conclude that this appeal is moot because the March 2000 primary election, in which the appellants sought to participate, has passed.

[24] A moot case may still be justiciable, however, if the underlying dispute is "capable of repetition, yet evading review." Knaust, 157 F.3d at 88 (internal quotation marks and citation omitted). This exception applies "only in exceptional situations." Dennin v. Conn. Interscholastic Athletic Conference, Inc., 94 F.3d 96, 101 (2d Cir. 1996) (internal quotation marks and citation omitted). In the absence of a class action, a controversy is capable of repetition, yet evading review where both of the following two requirements are met: "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again." Weinstein v. Bradford, 423
U.S. 147, 149 (1975) (per curiam). * * * [Emphasis added.]

 


Van Wie v. Pataki, 267 F.3d 109 (2d Cir. 10/04/2001), 2001.C02.0000388 <http://www.versuslaw.com>, at ¶¶ 23, 24; accord, United States v. Fuller, No. 02-1155L (2d Cir. 06/12/2003).

                This case also presents the profound issue of whether § 3332(a) can be negated by the denial of effective judicial and public scrutiny: effective judicial scrutiny was denied by the court’s dispositive determination based on the government’s ex parte submission under seal, without affording Plaintiff the opportunity even to be apprized of the substance of the government’s position.   This procedure vitiated also what Plaintiff believes is a public-scrutiny component of § 3332(a), i.e., scrutiny of the prosecutorial apparatus by Plaintiff as a representative of the public.  Indeed, the court’s reading of § 3332(a) appears to be that it is merely a procedural formality, that compliance is to be determination on the basis of whether something was submitted to the Grand Jury in response to Plaintiff’s allegations.  Thus has the seriousness of Plaintiff’s allegations – buttressed, after all, by the findings of two federal judges – been vastly understated, and undermined. 

                If, arguendo, this court could find, after a proper adversarial test of the adequacy of the government’s submission to the Grand Jury, that the case does not continue to present a “live case [and] controvers[y]”, Plaintiff submits that the circumstances here addressed are well within the scope of the exception that permits review of matters that are “capable of repetition, yet evad[e] review”.  Weinstein, supra.

                Addressing the first prong of the Weinstein test, that the matter of which review is sought is “in its duration too short to be fully litigated prior to its cessation or expiration”, Plaintiff submits that on the present the record Plaintiff has been afforded no opportunity to litigate anything.  Rather, Plaintiff filed an initial complaint, which has been disposed of in total secrecy.  Indeed, regardless of the “duration” of the “challenged action” – which is the nonfeasance, misfeasance, or malfeasance of the office of the U.S. Attorney for the Eastern or Southern District of New York – Plaintiff could not mount an effective attack upon it prior to its completion because that action, too, is performed in total secrecy.  By the same token, the challenged action could well have been of extreme short duration – indeed, the more inadequate the challenged action, the shorter its duration.  Thus the “challenged action” fully meets condition (1) of the Weinstein test.  Id. 

                As for the second condition of the Weinstein test, Plaintiff notes, first, that no indictments have issued despite findings by two judges that crimes were perpetrated to thwart Plaintiff’s efforts to collect on the judgment initially obtained by the Federal Deposit Insurance Corporation (“FDIC”).  Thus it is reasonable to assume that the Handlers and Mr. Roth have in no way been deterred from their criminal ways.  Indeed, the Handlers and Mr. Roth are no doubt emboldened by their awareness that they have “friends in high places”, and they have continued their fraud in the current bankruptcy proceedings.  Indeed, the Trustee has had to sue Handler accomplices to retrieve some of the assets “parked” by Handler with them to avoid payment of debts.   Thus there can be no doubt that further efforts by Plaintiff to collect on the judgment will result in the same or similar crimes.   Nor can there be any doubt that Plaintiff will continue to seek to collect on judgments that now amount to nearly $2 million, particularly since he has presented evidence of criminal misconduct consisting of the fraudulent concealing of assets that should be available to satisfy the judgment in question.35

 


                Here, Plaintiff complained to the government that the Handlers and Mr. Roth had committed numerous felonies in their efforts, thus far successful, to thwart Plaintiff’s efforts to execute upon a judgment that had been obtained initially by the Federal Deposit Insurance Corporation.  Evidently the government informed the courts – in its sealed, ex parte “affidavits and memorandum” – that Plaintiff’s allegations had been presented to a Grand Jury.36  Plaintiff believes that the government stated or indicated also that the Grand Jury had declined to return any indictments as a result of this presentment, and that the government further indicated, affirmatively or by its silence in the face of the obvious inference, that the reason for the Grand Jury declination was insufficiency of the evidence thus presented.  It is obvious further that the government failed to inform the court that it had failed – or, to put it more accurately – refused to make any effort to rectify any such insufficiency: Plaintiff was never asked to testify; his records were not subpoenaed; other key witnesses were never called upon to testify.   In short, whatever the government presented to the Grand Jury – in light of the quantity and quality of evidence that was readily available and not presented – was a sham, manifestly intended to produce a declination. 

POINT VIII.

THE COURT COMMITTED A SUBSTANTIVE VIOLATION OF ARTICLE III BY FAILING TO EXPLICATE THE LAW IT APPLIED, IN DEROGATION OF THE NECESSARY IMPLICATION OF § 3332 (a) THAT AUTHORIZES CRIME- REPORTING INDIVIDUALS TO FUNCTION AS PRIVATE ATTORNEYS GENERAL.

 

                The court’s summary dismissal of the instant case, solely on the basis of an ex parte submission under seal by Defendants, is not a proper exercise of the “judicial power” conferred by Article III of the Constitution.  By its dismissal of the instant case, the court placed its judicial imprimatur on the actions of the Defendants with regard to the alleged offenses, thus representing to the public, including subsequent litigants with similar questions and issues, that the court had evaluated these actions and, upon the exercise of its independent judgment, had found them legally and constitutionally acceptable.   In a somewhat similar situation – where an appellate panel had lacked the means to perform a competent and independent evaluation of the actions of a federal agency – the D.C. Circuit, en banc, stated: 


Better no judicial review at all than a charade that gives the imprimatur without the substance of judicial confirmation that the agency [i.e., the Government]  is not acting unreasonably.   [Emphasis supplied.]  Once the presumption of regularity in agency action [footnote omitted] is challenged with a factual submission, and even to determine whether such a challenge has been made, the agency's record and reasoning has to be looked at. If there is some factual support for the challenge, there must be either evidence or judicial notice available explicating the agency's result, or a remand to supply the gap. [Footnote omitted.] 


 

Ethyl Corporation, v. Environmental Protection, NOS. 73-2205, 73-2268, 73-2269, 73-2270, 74-1021 ( March 19, 1976), 1976.CDC.55, http://www.versuslaw.com, Cert. denied June 14, 1976, 426 U.S. 941, 96 S. Ct. 2622, 49 L. Ed. 2d 394. 

                Here, there can be no dispute that the “presumption of regularity” that courts regularly and customarily attach to the actions of the Government’s prosecutorial apparatus has been dispelled.  It therefore becomes inescapable that this court now must withdraw its approval of those actions and make a new assessment, this one entailing an examination of evidence and evaluation of argument presented in a true adversarial proceeding. 

                This court also has unwittingly inflicted an the injury to the public, not only by the failure to insure that the Government enforces criminal laws of the United States, but also by its utter failure to explicate the law that Plaintiff has attempted to invoke, § 3332(a); its application to the circumstances of the case at bar; and related statutory and decisional law.37   Plaintiff submits that this error prejudiced him as a representative and advocate of the public, and thus as a private attorney general, and thus the error also constituted a vicarious injury to the public.

                Indeed, if one accepts that there has been a failure of justice, then it is difficult not to conclude that this court has prolonged and perhaps even abetted that failure, unwittingly, by depriving Plaintiff and other interested persons of the benefit of the court’s reasoning and the basis of its finding of moot ness and thus hampering appellate review. 

                Unquestionably the materials supplied by Plaintiff made out the requisite probable cause to support indictment of the identified perpetrators.  Moreover, Plaintiff, after his filing of the complaint herein, learned that one of the persons accused by Plaintiff of perpetrating serious crimes did in fact testify before a Grand Jury in this district.   Samuel Roth revealed, through his testimony in the subsequent civil trial, that he had previously testified for a Grand Jury and that the Grand Jury had “exonerated” him.  But that fact was never disclosed to Plaintiff by the Government, nor – contrary to the Government’s treatment of Mr. Roth, a target – was Plaintiff ever afforded an opportunity to testify before the Grand Jury or even to submit all of the evidence he has to the government.  Nor did the Government attempt to obtain documentary evidence or Grand Jury testimony from any of the individuals whom Plaintiff had identified as able to support the allegations that Mr. Roth had perpetrated fraud and other serious federal crimes.

                Thus it appears that the Government submitted to the Grand Jury a mere skeleton of the criminal charges that Plaintiff sought to bring, purposely rebuffing Plaintiff’s efforts to provide more information, and then allowed one of the targets, Mr. Roth, to testify before the Grand Jury in defense of Plaintiff’s charges.

                Then, finally, the Defendants came to this court and represented that they had discharged their § 3332(a) duty by submitting to the Grand Jury the alleged offenses charged by Plaintiff.   This representation was ex parte and under seal, of course, so Plaintiff had no opportunity to challenge and even question the Defendants’ representations.  This, from officials of the United States government who can decide matters literally of life or death!! 

                Plaintiff believes, moreover, that either Defendants knew or should have known – when they made the above-references representations to this court – that Mr. Roth had waived, by his above-described testimony in the defamation action, any right to keep secret the Grand Jury proceedings that pertained to the charges against him.   (And to no avail: the civil jury found that the vast majority of Plaintiff’s defamatory statements were true and refused to award any damages on the three claims, out of a total of 15 as to which liability was found.)   Thus, a crucial question at this point is whether Defendants asserted in bad faith the right and legitimate need to seal records containing matters that had already been made public.  Plaintiff believes they did. 

                Plaintiff believes further that the operative factor in the Grand Jury’s failure to indict was the manifest failure of the Government to submit evidence that was readily available to it.  Unless we assume, moreover, that such failures are commonplace, there is the additional, strong inference that the Government’s lawyers were influenced by the informal intervention by counsel for the targets, or putative targets, identified plainly and unambiguously as perpetrators of the criminal wrongs described in the materials. 

                Records adduced in various courts will confirm a pattern of representation of the Handlers and Mr. Roth by attorneys occupying the highest rung in the hierarchy of influence and access to those government officials with the power to assure official disregard of those criminal wrongs.38 

                Mr. Roth’s testimony also begs for correction of the public record, both in the defamation case and in the court of public opinion.  These are ample reasons for the court to exercise its inherent and statutory powers to direct submission to the Grand Jury of all evidence of criminal activity that is reasonably available and  uncontaminated. 

                In sum, then, the court’s finding of moot ness undermines the public interest in faithful execution of federal criminal laws, aids the denial of Plaintiff’s right to vindication as a crime victim, and undermines judicial economy. 

POINT IX.

THE COURT’S DISMISSAL OF THE COMPLAINT WAS A “SURPRISE” WITHIN THE MEANING OF F.R.CIV.P. 60(b)(1), AS WELL AS AN ASSAULT UPON DUE PROCESS AND FUNDAMENTAL FAIRNESS PRINCIPLES, AND THUS RELIEF MAY BE GRANTED.

 

                The Second Circuit has made clear its disfavor of dismissals without notice. 


We hold that while a court possesses inherent authority to dismiss such a complaint on its own motion based on failure to comply with the statutory exhaustion requirement, the court was first obligated to provide the plaintiff notice and an opportunity to be heard. [Emphasis supplied.]  We therefore vacate the judgment and remand the case so that Snider [a prisoners’ rights plaintiff] may receive the benefit of the procedural safeguards to which he was entitled.


Snider v. Melendez, 199 F.2d 108, 112-3 (2d Cir. 1999).

                The Snider court went on discuss at greater lengths its reasoning in reversing the dismissal: 


[42] * * * [T]he district court's judgment dismissing Snider's action must be vacated. The problem with the court's dismissal was not that it was done on the court's own motion, but rather that it was done without affording Snider notice and opportunity to be heard. [Emphasis supplied.]

[43] A court's dismissal on its own motion is sometimes described as a "sua sponte" dismissal. See, e.g., Bennet v. Artuz, 1999 WL 969697, at *1 (2d Cir.
Oct. 25, 1999). Perhaps because of the similarity between the words "sua sponte" and "spontaneous," *fn1 legal parlance sometimes confuses the court's power to act on its own motion with the power to act immediately without affording an opportunity to be heard in opposition. The difference is significant.



[44] Where a court order is either mandated by law or unquestionably beneficial to the party favored by the ruling, there is little reason to insist on the formality that the order await a motion made by that party. A district court may enter such an order on its own motion. This is all the more appropriate in circumstances where the party favored by the ruling has not yet appeared in the action.



[45] On the other hand, providing the adversely affected party with notice and an opportunity to be heard plays an important role in establishing the fairness and reliability of the order. It avoids the risk that the court may overlook valid answers to its perception of defects in the plaintiff's case. Furthermore, denying a plaintiff an opportunity to be heard "may tend to produce the very effect [the court] seek[s] to avoid--a waste of judicial resources--by leading to appeals and remands." Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir. 1988). Unless it is unmistakably clear that the court lacks jurisdiction, or that the complaint lacks merit or is otherwise defective, we believe it is bad practice for a district court to dismiss without affording a plaintiff the opportunity to be heard in opposition. As we have previously stated, dismissal in such a manner may be, "by itself, grounds for reversal." Square D Co. v. Niagra Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1365 (2d Cir. 1985) (Friendly, J.) (internal quotation marks and citations omitted); Schlesinger Inv. Partnership v. Fluor Corp., 671 F.2d 739, 742 (2d Cir. 1982) (same); see also Perez, 849 F.2d at 797 (sua sponte dismissal with affording plaintiff notice and opportunity to be heard is "itself grounds for reversal," (quoting Square D), although permitted in some circumstances where a complaint is obviously frivolous); cf. Eades v. Thompson, 823 F.2d 1055, 1062 (7th Cir. 1987) (observing that "[a]t least four circuits do not permit sua sponte dismissals without notice and an opportunity to be heard"). In this case, we conclude that, while the district court was free to act on its own motion, it erred in dismissing the complaint without giving Snider notice and an opportunity be heard in opposition.

__________

[57] Error! Hyperlink reference not valid. "Spontaneous" and "sponte" are in fact etymologically related. The term "spontaneous," which can mean (among other things) "without premeditation," derives in part from the Latin "sponte," which means "of one's own accord, freely, [or] willingly." II The Compact Edition of the Oxford English Dictionary 2977 (1971).


Id.

                The court dismissed the instant case when it was manifest that Plaintiff was attempting to secure a reasonable opportunity to meet the grounds asserted by the Defendants for dismissal.  Without compromising any legitimate interest that the court sought to serve in refusing to unseal the Defendants’ response, obviously the court could have disclosed to Plaintiff that it was contemplating dismissal on grounds of moot ness.

                Indeed, this seems to be a case in which the court plainly erred in dismissing the case as moot, since the USAM clearly provides for resubmission of evidence after a Grand Jury has refused “on the merits” to issue an indictment. 

                Furthermore, the court could have bifurcated its consideration of Plaintiff’s claims for relief and given Plaintiff an opportunity to address, as a preliminary question, whether it was lawful and appropriate that Defendants’ response to remain under seal and not be disclosed to Plaintiff.  Given such an opportunity Plaintiff could obviously have advised the court of Samuel Roth’s public testimony – on June 26, 2002, and thus well after the filing of the complaint herein – that vitiated any legitimate need for continued invocation of Grand Jury secrecy.  In a defamation case brought against Plaintiff by Messrs. Handler and Roth, Roth revealed, on direct examination by his own attorney, that he had testified before a Grand Jury some “three-to-four years” previously  and had been “exonerated” of the charges subsequently made against him by Plaintiff.  The civil jury that hear Roth’s testimony was unpersuaded and found overwhelmingly for Plaintiff. 

                The plain meaning of F.R.Civ.P. 60(b)(1) mandates relief from judgments that are entered without affording a party affected by the judgment a reasonable opportunity to be heard.  Thus this rule is, at least in part, a statutory codification of the right to due process of law that is enshrined in the Fifth Amendment.  It is difficult to conceive of circumstances in which a litigant’s due process right against “surprise” could be presented more compellingly than here, where Plaintiff has been totally deprived of the opportunity even to be informed post-hoc of the basis of the court’s adverse disposition of his claims. 

                Moreover, the violation of this Plaintiff’s right to due process is made more troubling because of the underlying public interest that is frustrated by the court’s action. See argument provided elsewhere herein. 

                Plaintiff submits that the powers of those exercising prosecutorial discretion are so awesome that need for effective judicial supervision overcomes any legitimate need for secrecy in the evaluation of how those powers were wielded.  Indeed, USAM notes that Grand Jury secrecy should attach only to documents or information that reveals the “direction and strategy of the Grand Jury”:


9-11.254 Guidelines for Handling Documents Obtained by the Grand Jury

* * *

3.a. * * *  Similarly, Rule 6(e) does not cover documents, even subpoenaed documents, that are sought for the information they contain, rather than to reveal the direction or strategy of the Grand Jury. [Emphasis added.]  See, e.g., DiLeo v. Commissioner of Internal Revenue, 959 F.2d 16, 19 (2d Cir. 1992). Accord Washington Post Co. v. United States Dep't of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988); Senate of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 582-84 (D.C. Cir. 1987).

 


But cf. Fund for Constitutional Gov't, 656 F.2d at 869 (names and identities of witnesses, substance of testimony, and documents considered by Grand Jury fall within broad reach of Grand Jury secrecy) (citing SEC v. Dresser


          35     The “targets” choice of counsel is further evidence of their very substantial assets.

 

          36  Plaintiff assumes the government told the court either (1) that it had presented the subject allegations to a special Grand Jury, as contemplated by 18 U.S.C. 3332(a), or (2) that the government said it presented the allegations to a regular Grand Jury and did not attempt to invoke any distinction between special and regular grand juries. 

 

On the other hand, if the government argued, in its secret filings, that Plaintiff’s claim for relief was barred because he had failed to assert specifically the right to have his allegations presented to a special Grand Jury, and if the court relied on this argument, then the error in dismissing the instant case was even more gross: such a defect in Plaintiff’s pleading – if, indeed, the failure to request submission of his allegations to a special Grand Jury was deemed by the court to be a defect – was readily curable. 

          37  The interplay between F.R.Crim.P. 6(e) and the court’s inherent power to supervise grand juries and the conduct of Government attorneys appearing before grand juries as officers of the court is certainly one such set of questions that the court has failed to explicate. 

          38  Among the attorneys who have represented one or more of that targets are a former counsel to the White House, two former U.S. Attorneys, and a former deputy USA in charge of criminal prosecutions, and former counsel to the Grievance Committee.


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