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Memorandum of Law filed 11/3/03
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MOL

Indus. 202 U.S. App. D.C. 345, 628 F.2d 1368, 1382 (en banc), cert. denied, 449 U.S. 993, 66 L. Ed. 2d 289, 101 S. Ct. 529 (1980)).

                This case is not about the actions of the Grand Jury, but rather the actions of Defendants and their multitudes of assistants and subordinates, and in large measure about actions, or nonactions, of the Defendants before anything akin to Plaintiff’s allegations or evidence was submitted to the Grand Jury.

                Plaintiff submits further that from the outset his showing of the Government’s extraordinary recalcitrance in receiving and developing evidence of the commission of serious crimes should have foreclosed the possibility of the court’s relying on an ex parte presentation.  That should have disabused the court of any presumption of regularity in the Government’s behavior toward the subject allegations.  Now, however, we are far beyond mere recalcitrance: we have Grand Jury testimony by a target without any effort by the Government to investigate the predicate allegations against the target.  Such a bizarre occurrence cannot be explained by mere inadvertence or even incompetence: this occurrence was orchestrated to insure that the target would indeed be “exonerated”, but by the Government’s deliberate failure to marshal and present the pertinent facts.  Indeed, how is that two judges were able to conclude – on records protected by highly competent counsel – that the targets had committed frauds and other crimes, while the government agency that is charged with investigating and developing evidence of such crimes cannot glean enough evidence to make out probable cause?  

                As noted supra, Plaintiff conceives § 3332(a) as a major bulwark of a regime of direct or at least vicarious public scrutiny of the administration of the criminal justice system of the United States.  But there is possibly an even more fundamental error in the court’s lapse:  the “judicial power” conferred by Article

III presumes that courts will issue their decisions with complete transparency – so that each decision takes its place in a reservoir of judicial precedent for the benefit and enlightenment of all who subsequently confront the same or similar issues and questions.  See, Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot, Anastasoff v. United States, 235 F.3d 1054 (8th Cir. 2000) (en banc).39

                Except when the most compelling of reasons dictate otherwise.  As shown supra, this is not such a compelling case.  Furthermore, it is obvious that this court could have issued notice to Plaintiff that it was considering dismissal on the basis of moot ness.  After all, that is what the court ultimately did say, so obviously nothing would have been lost by giving Plaintiff an opportunity to meet that ground before dismissal.  Thus alerted, Plaintiff then could have distinguished the charges that he raised from those that had been raised in the past – the referral by Judge Patterson and the fraud findings by Judge Bohanon. 

                Moreover, if Plaintiff could have learned when these matters were presented to a Grand Jury, he likely could have shown that the crimes of which he complained were continuing.40 

                Finally, Plaintiff submits that when there is sufficient evidence to make out probable cause to believe that a crime was committed, a refusal by one Grand Jury to indict in no way forecloses a subsequent Grand Jury from returning indictments. 

 

 

 

POINT X.

THE CRIMINAL ACTIVITIES COMPLAINED OF BY PLAINTIFF ARE COMPONENTS OF A CONTINUING CONSPIRACY, THUS TOLLING THE RUNNING OF LIMITATIONS.

 

As noted supra, Plaintiff is compelled to speculate about the reasons underlying the court’s dismissal of the instant case.  Thus, one additional possibility is that the court was mislead into believing that limitations barred prosecution of the crimes that Plaintiff alleged.  But Plaintiff has alleged a continuing conspiracy, to perpetrate frauds against one or more financial institutions, which are subject to a 10-year statute of limitations.  In sum, prosecution of the crimes alleged by Plaintiff are not barred by limitations.

 

POINT XI.

THE COURT MAY – AND IN THIS INSTANCE SHOULD – SUBMIT TO THE GRAND JURY THE FACTS AND EVIDENCE PROVIDED AND IDENTIFIED BY PLAINTIFF.

 

                Finally, Plaintiff notes that the court itself is empowered by Section 3332(a) to communicate directly to a Grand Jury information or evidence concerning the criminal activities that the Grand Jury is mandated to investigate.    In view of the regrettable history of the instant case, Plaintiff asks that this court convey the subject materials to the Grand Jury, and also to communicate to the Grand Jury Plaintiff’s willingness to testify before it. 

                Although the court can simply bypass the Government and submit Plaintiff’s allegations to a Grand Jury, there is no assurance that a different result would obtain.  Indeed, the record indicates a substantial likelihood that the result of a resubmission – or a new submission by the court – would be the same. 

                At least two problems must be addressed before the court would arise.41  First, if the court reads § 3332(a) as requiring no more than in the surmised scenario described supra, further attempts, whether through the government or the court, to procure indictments and prosecution could well be futile, absent appellate intervention.  Hence the need to secure now this court’s construction of the subject statute.  This tact also furthers judicial economy: if the court takes a more generous of the rights conferred by the subject statute, then perhaps submission of Plaintiff’s evidence directly to the court would be in order.  Second, Plaintiff has no way to know how much information, maybe even how much evidence, was found wanting by the prosecutor – if the prosecutor did indeed oppose indictments – and by the Grand Jury, whether in accepting a no-indictment recommendation of the prosecutor or in rejecting a pro-indictment recommendation.   A sub-point is that on the present record, Plaintiff has no way to know what distortions were injected into the proceedings before the Grand Jury, through informal communications with the government, on behalf of the “targets”.42 

POINT XII.

 

THE COURT SHOULD CONSIDER WHETHER, IN THE INTEREST OF JUSTICE, THIS CASE SHOULD NOT BE ASSIGNED TO A DIFFERENT JUDGE.

 

                While Plaintiff is not making a formal Motion that this Court recuse itself in this matter, Plaintiff requests that Court consider reassigning this case to a different Judge, in view of the assigned judge’s having reviewed and made a determination based upon the ex parte submission of sealed materials.  With respect, Plaintiff submits that the judge’s actions reflect that he has previously determined the questions raised herein and, further, hostility to the values on which the instant motion is premised.  Such bias is remediable pursuant to 28 U.S.C. 455.  See, Liteky v. U.S., 114 S.Ct. 1147, 1155-1156 (1994) (construing 28 U.S.C. § 455 as allowing relief for bias and prejudice evidenced by judicial acts as well as extra-judicial matters).

POINT XIII.

ISSUANCE BY THE GRAND JURY OF A § 3333 REPORT, WITH A RECOMMENDATION OF DISCIPLINE, IS WARRANTED BY THE CIRCUMSTANCES SURROUNDING THE GOVERNMENT’S FAILURE TO OBTAIN INDICTMENTS AND THE DISMISSAL OF THE INSTANT CASE.

 

                One of the unknowns at this stage is whether the same Grand Jury that presumably declined to indict is still sitting, or whether a new Grand Jury has been convened – or, indeed, whether a special Grand Jury, impaneled and empowered pursuant to §§ 3331-3334 of Title 18, USC, has ever heard evidence against the Handlers and Mr. Roth.43  Whatever the answers to these questions, a special Grand Jury must be informed of and afforded the opportunity to investigate – with subpoena power, if necessary – the circumstances of the failure of obtain indictments against the Handlers and Mr. Roth and the dismissal of the instant case.          

                What has occurred to date confounds every popular expectation:  The expectation, however naive, that generally the Government is able to obtain indictments of persons whose serious misconduct is either known to the Government or otherwise demonstrated by evidence that is readily available to the Government.  Next is the expectation that grand juries indict when presented with probable cause to believe that specifically identified individuals have committed specific felonies, and the correlative expectation that, in the absence of exculpatory evidence sufficient to negate the probable cause, no amount of lobbying behind the scenes can deter the Government from presenting its strongest case for indictments.

                Plaintiff submits further that the public expects, and should expect, that the Government should explain, to the greatest extent commensurate with legitimately competing public interests, candidly and openly its discharge of the prosecutorial function. 

                Finally, Plaintiff submits that the public should and does expect the courts to function openly and with factual and intellectual accuracy.

                None of the foregoing expectations has been met with regard to the failure to indict the Handlers, Roth and their accomplice attorneys or with respect to the instant proceedings.   Given, then, the cascading anomalies presented in the instant case and in the Government’s actions, or nonactions, in response to overwhelming evidence of the perpetration of indictable offenses by the Handlers, Roth, and their accomplice attorneys individually and conspiratorially, and further evidence that justice was derailed in the instant case, Plaintiff is fully justified in presenting the evidence available to him – for prompt transmission by this court to the appropriate special Grand Jury – that points to corruption of the pertinent governmental and judicial processes and which warrants either or both indictments and a §3333 report of official misconduct.

                The public is entitled to know how an individual escapes prosecution when his own words would convict him of serious crimes.  The Grand Jury is empowered to make such a determination, with its subpoena and contempt powers. 

                Moreover, the requirement that a §3333 report should address official misconduct “involving organized crime” should be construed in a manner consistent with the scope of potential targets of civil and criminal RICO actions.   Thus, it is perfectly reasonable to conclude that the criminal activities of the Handlers and Roth and their professional aiders and abettors are sufficiently “organized”, collective, and patterned to trigger application of § 3333's provisions for issuance of a public report of noncriminal misconduct by Government officials in their investigation, or failure to investigate, and presentment to a Grand Jury of what could only have been a profoundly flawed case. 

                The foregoing conclusion is perfectly consistent with the approach taken by the Criminal Resource Manual, Section 159 (U.S. Dept. of Justice, October, 1997):


Reports involving public officials must connect "misconduct," "malfeasance," or "misfeasance" with "organized criminal activity." "Organized criminal activity" should be interpreted as being much broader than "organized crime;" it includes "any criminal activity collectively undertaken." This statement is based upon the legislative history of 18 U.S.C. § 3503(a), not of 18 U.S.C. § 3333, but both sections were part of the Organized Crime Control Act of 1970, making it logical to construe the term the same way for both sections. See 116 Cong. Rec. 35,290 (October 7, 1970).


 

                While it true, of course, that Plaintiff is perfectly free to attempt to resort to the court of public opinion, the Grand Jury’s report would manifest the imprimatur of an official comment by an institute of government. 

                The truth, as disseminated by Plaintiff himself, regrettably has yet to make him free of the grotesquely unjust curtailment of his legal career or to bring to justice those who have cynically corrupted the most sacred processes of our land. 

POINT XIV.

RELIEF IS AVAILABLE PURSUANT TO THE ALL WRITS ACT, 28 U.S.C. 1651.

                The United States Supreme Court has recognized the power of a Federal court to issue orders under the All Writs Act "as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in the exercise of its jurisdiction." See United States v. New York Telephone Co., 434 U.S. 159, 172 (1977).

 

I HEREBY AFFIRM under penalties of perjury, and unless otherwise indicated or stated, on personal knowledge, that the foregoing assertions of fact are true and correct.  I further AFFIRM that those matters that are beyond my personal knowledge are true and correct to the best of my knowledge, information, and belief. 

 

 


___________________________________

ISRAEL WEINSTOCK, Plaintiff, pro se

140-06 Rockaway Beach Boulevard

Belle Harbor, NY 11694



          39  But Senior Judge Richard Arnold, author of the panel decision, may have had the last laugh: The Judicial Conference of the United States is considering an amendment to the Federal Rules of Appellate Procedure that would abolish rules prohibiting citation to “unpublished” opinions.

          40  Plaintiff recalls that during a proceeding before Judge Patterson in 2002, an attorney representing the Handlers and/or Mr. Roth stated off the record that the Grand Jury had issued no indictments.

          41  Plaintiff is by no means willing at this stage to foreclose the possibility of his submitting additional evidence to the court, of course. 

          42  Surely Plaintiff should be entitled to know if the Handlers and Mr. Roth were ever notified by the government that they were targets of Grand Jury proceedings, as contemplated by the following provision of USAM:

 

9-11.153 Notification of Targets

When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion (see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the Grand Jury, subject to the conditions set forth in USAM 9-11.152. Notification would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice.

* * *

 

          43  As argued in more detail elsewhere herein, dismissal of the instant case on the asserted ground of moot ness after the Government’s presentment to a regular Grand Jury would have been plainly erroneous: Section 3332(a) clearly entitles a person reporting criminal offenses to presentment of that information to a special Grand Jury, and to the remedies urged herein for the Government’s failure faithfully to discharge its duties, including the remedy of a §3333 report of official misconduct.


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