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Memorandum of Law filed 11/3/03
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i.  Immediately before serving as counsel to President William Clinton, Mr. Nussbaum represented Cleary Gottlieb, when the firm was named as a defendant – along with Handler, Roth, and certain individual members of the firm –  in a RICO action brought by Plaintiff in the Southern District.  Mr. Nussbaum – for a fee of $700,000, according to Handler’s sworn testimony – and his co counsel were successful in persuading the latter court that claims equivalent to Plaintiff’s RICO claims were already being litigated in State court (although clearly they were not), and therefore that Colorado River abstention was appropriate.  Mr. Nussbaum was also acting Attorney General when the Plaintiff herein filed a Complaint with the Justice Department demonstrating that Handler filed a false application for a $3.8 million mortgage loan on the properties owned by the Plaintiff and falsely represented that he was the owner of 90% and, with his cohort Samuel Roth, submitted fraudulent loan documents to the First Nationwide Bank.  While FBI agents investigated my complaint and found my allegations accurate, they were instructed not to proceed further.


In the State litigation that prompted dismissal (without prejudice) of the RICO case, Cleary Gottlieb – which had a large stake in the litigation but was not officially involved in it – enjoyed even more extraordinary success.  This litigation involved Plaintiff’s interest in a Brooklyn apartment complex, which Cleary Gottlieb had fraudulently participated in the conveyance to a partnership controlled by Handler after promising, in writing, to preserve the status quo during a period when Plaintiff was suffering from stomach cancer and was not expected to survive.  The litigation resulted in an astounding ruling by a State trial judge – some 10 years after Cleary Gottlieb’s fraudulent conveyance of the ownership interest in the subject property – that voided Plaintiff’s undisputed acquisition of sole ownership, through 4200 Avenue K Realty Corp. ("Realty Corp."), of the subject property.  Cleary Gottlieb then argued, successfully, that the court’s extinguishment of Plaintiff’s interest in the subject property exonerated Cleary Gottlieb of any liability for its fraudulent participation in the conveyance of the subject property, although it was undisputed that Plaintiff held 100 percent ownership of the property at the time of the fraudulent conveyance.   Remarkably, the State court was not asked by Plaintiff’s opponents to extinguish entirely Plaintiff’s interest in the subject property; nor was this result supported by the record.  Interestingly, as recently as 1998 counsel for Cleary Gottlieb, in its brief to the Appellate Division 2nd  Department,  that title to the properties was still in the Corporation – an assertion which was totally false as the Corporation had been stripped of it’s properties eleven years earlier.  That is a matter of record that cannot normally be denied.  It seems that it can be resolved by looking at official government registrations, can be misrepresented to the Courts – with impunity.


In December of 1984 Plaintiff had received a 20 percent interest in Realty Corp., which he represented in a dispute over whether Realty Corp. had a contractual right to purchase the subject apartment complex.  The 20 percent interest was conveyed to Plaintiff as the fee for his representation of the corporation in the trials (2) relating to the dispute between the seller and the purchaser Corporation.  That is, as stated by Justice Douglass, akin to a contingent fee which, as Justice Douglass stated, standing by itself was not inappropriate.  Regrettably, the purchaser Corporation lost the second trial and the Court declared that it had no right to enforce the contract which would have entitled it to complete the purchase of the apartment complex.  The Corporation then was worthless, since it’s only asset was the disputed right to purchase the apartment complex.


In February of 1985, Jack Walker, the individual who had conveyed to Plaintiff the 20 percent interest in Realty Corp., and Plaintiff settled Plaintiff’s claims against Walker – based on Walker’s  allegation, which Walker admitted was fabricated at the behest of Handler, that Plaintiff had committed frauds against Walker and others.  A term of the settlement was Walker’s conveyance to Plaintiff of the remaining 80 percent interest in the subject property.  Walker’s counsel, Edward Rubin Esq., admitted in the proceedings before Judge Patterson (after Justice Douglass determined that the conveyance by Walker to the Plaintiff was unconscionable, as the Plaintiff had a “nebulous claim against Walker) that the Plaintiff had a valid claim against Walker which would have netted the Plaintiff $1.5 to $2 million.  This too demolished the underpinning of the decision rendered by Justice Lewis Douglass.


An unwarranted change of venue and an irregular, nonrandom assignment, by Justice Richard Huttner, brought the issue of Plaintiff’s ownership of the subject property before Justice Lewis L. Douglass of the Supreme Court for King’s County.  Justice Douglass awarded greater relief to Handler than Handler had requested in his sworn pleading, relief that also was inconsistent with prior testimony and testimony given before Justice Douglass by Handler and others, and despite Handler’s admission under oath that he had committed and suborned perjury.  And Handler admitted in his testimony before Justice Douglass that Plaintiff held a valid ownership interest in the properties in question. 


Indeed, it appears that Cleary Gottlieb and its clients have only to ask the courts for an extraordinary result, and an extraordinary result comes forth.  Is Plaintiff bound to accept such results as some kind of judicial immaculate conception, or is he to be permitted to express that which is manifest?  What is manifest is that the results obtained, consistently, by Cleary Gottlieb go beyond the mere application of legal principles to facts.  This case, too, reflects such extraordinary results – results favorable to individuals whose conduct has been condemned by two federal judges, a jury, and special agents from the Office of the Inspector General of the FDIC.


But there were footprints.  Nussbaum, Handler, and Handler’s associates contributed more than five percent of the total funds received by Justice Huttner for his campaign for election to his judicial office.  Justice Huttner made a crucial determination to remove that venue in the above-described case did not lie in the court where Plaintiff initially filed the case, but instead referred the case to King’s County, where the nonrandom assignment to Justice Douglass occurred.  Justice Huttner was later found to have "displayed a remarkable insensitivity to his ethical responsibilities and to the ethical problems created by his actions" when he took an active role in litigation involving his own cooperative apartment board.  He was censured by the Commission on Judicial Conduct for violating five different Rules Governing Judicial Conduct, all of them relating to judicial integrity and extracurricular activities.  He was admonished: "The ethical rules prohibit a judge from lending the prestige of judicial office to advance private interests and from engaging in extra-judicial activities that are incompatible with judicial office or detract from the dignity of judicial office".


Before the case was returned by the Federal Court to the State Court, two of Cleary Gottlieb’s senior partners called Plaintiff to see if he would meet with them. On the spot, they offered Weinstock approximately $1 million dollars for his release. They also suggested that Plaintiff continue his case against Handler – from whom, they said, he would eventually get his buildings back.  When Plaintiff refused the offer, the Cleary Gottlieb partners threatened to “turn your life inside-out.”  Plaintiff persisted in his refusal to settle.

ii. One of these judgments was originally confessed in 1991 to the First Women’s Bank, in the New York County Supreme Court, in the amount of $492,370.05, and then was acquired by the Federal Deposit Insurance Corporation (“FDIC”) in the Southern District, after the FDIC removed the case to that court.  In 1997 MLE Realty Associates, a partnership owned by Plaintiff and his wife, acquired the judgment, after only $13,276 had been paid, and applied to the accrual of post-judgment interest.  On November 3, 2000, MLE filed a proof of claim for this judgment in the amount of $855,757. (This amount included statutory interest from the date the judgment entered through the date of the filing of the bankruptcy petition.)   Complaint at 6, ¶¶ 41-45.


As noted in the Complaint, at 7-9, ¶ 57, Plaintiff holds a $1,082,395.46 judgment against Emmerich Handler that was entered in the New York County Supreme Court on May 11, 1999. On November 3, 2000, Plaintiff filed a proof of claim for this judgment in the bankruptcy matter called In re: Handler, EDNY Bankruptcy, Case No 00-14960, in the amount of $1,179,031.73. (This amount included statutory interest from the date the judgment entered through the date of the filing of the bankruptcy petition.)



iii.  Previously Plaintiff had been offered an opportunity to meet with Mr. Hinton, but the terms of this offer limited the meeting to half an hour and included no assurance of action by the Government even if action were objectively indicated by the evidence Plaintiff presented.  Plaintiff responded by suggesting that Government prosecutors come to his law office, where he maintained extensive documentation pertinent to his charges against the Handlers, Roth, and their attorneys.  Plaintiff’s offer, although never rejected explicitly, was never acted upon.  In his Complaint at 13-15, ¶¶ 107-117, Plaintiff describes his communications with the office of the U.S. Attorney for the Eastern District concerning an earlier suggestion of a meeting, which would have been limited to half-an-hour in duration:


    107.  On March 21, 2002, [nearly five months after Plaintiff’s initial letter to the U.S. Attorneys for the Eastern and Southern Districts] Plaintiff’s law office spoke to Mr. [Jonathan] Sack [Chief of the Criminal Division of the office of the U.S. Attorney for the Eastern District] again, by telephone. [This was after an initial telephone communication directly with Mr. Sack on February 27, 2002.]  He admitted that [he] still had not read all of the materials, and conceded that he was not clear what issues had been raised.

    108.  Rather than continue with the documents already in his possession, Mr. Sack suggested that Plaintiff travel to the U.S. Attorney’s office in Brooklyn, and attend a conference to last not more than one half-hour with Andrew Hinton, Esq. an assistant in Mr. Sack’s office.

                109.  Notably, Mr. Sack did not indicate that an FBI agent or other investigator would or could be present to discuss the matter with Plaintiff.

                110.  Mr. Sack further requested that at the meeting, Plaintiff should present what he described as a clear and precise statement of the pertinent facts and specific statutes Plaintiff believes that Mr. Handler violated, along with the documents that prove it.

                111.  Plaintiff took Mr. Sack’s various requests and the limitations of the proposed meeting to mean that Defendant Vinegrad’s office would not undertake to investigate, research, or independently evaluate the factual accusations or the legal conclusions, and that therefore, the meeting would be unproductive.

                112.  Moreover, during the conversation, Mr. Sack did not indicate whether his office would commit to presenting the information to the Grand Jury, either as a matter of requirement under 18 U.S.C. 3332; or as a matter of discretion, even if the evidence presented was objectively substantial.

                113.  Plaintiff took these suggestions, requirements, and limitations to mean that the meeting would merely serve as appeasement, rather than good faith.

                114.  Nevertheless, on or about March 25, 2002, Plaintiff prepared and mailed to Mr. Hinton a letter along the lines proposed by Mr. Sack. This letter is annexed as Exhibit E.

                115.  In the letter to Mr. Hinton, Plaintiff identified specific facts and specific statutes under which he contended the Handlers and various accomplices could properly be charged.

                116.  Moreover, Plaintiff noted the complexity and mass of the allegations pending, the difficulty of trying to get it all explained to a person not familiar with the matter in just a half-hour, along with an invitation by Plaintiff to Mr. Hinton to come to Plaintiff’s office and examine an extensive file pertaining to the Handlers.

                117.  As of this writing [i.e., when the instant action was commenced on May 8, 2002] there was no response whatsoever to this letter from any of the Defendants or from any representative of their respective organizations, and not even an acknowledgment by Mr. Hinton that the letter was received.


iiii. The text of § 3333, in pertinent part, is as follows:

Sec. 3333. - Reports

(a) A special Grand Jury impaneled by any district court, with the concurrence of a majority of its members, may, upon completion of its original term, or each extension thereof, submit to the court a report -

(1) concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action; or

(2) regarding organized crime conditions in the district.

(b) The court to which such report is submitted shall examine it and the minutes of the special Grand Jury and, except as otherwise provided in subsections (c) and (d) of this section, shall make an order accepting and filing such report as a public record only if the court is satisfied that it complies with the provisions of subsection (a) of this section and that -

(1) the report is based upon facts revealed in the course of an investigation authorized by subsection (a) of section 3332 and is supported by the preponderance of the evidence; and

(2) when the report is submitted pursuant to paragraph (1) of subsection (a) of this section, each person named therein and any reasonable number of witnesses in his behalf as designated by him to the foreman of the Grand Jury were afforded an opportunity to testify before the Grand Jury prior to the filing of such report, and when the report is submitted pursuant to paragraph (2) of subsection (a) of this section, it is not critical of an identified person.

(c) (1) An order accepting a report pursuant to paragraph (1) of subsection (a) of this section and the report shall be sealed by the court and shall not be filed as a public record or be subject to subpoena or otherwise made public

(i) until at least thirty-one days after a copy of the order and report are served upon each public officer or employee named therein and an answer has been filed or the time for filing an answer has expired, or

(ii)  if an appeal is taken, until all rights of review of the public officer or employee named therein have expired or terminated in an order accepting the report. No order accepting a report pursuant to paragraph (1) of subsection (a) of this section shall be entered until thirty days after the delivery of such report to the public officer or body pursuant to paragraph (3) of subsection (c) of this section. The court may issue such orders as it shall deem appropriate to prevent unauthorized publication of a report. Unauthorized publication may be punished as contempt of the court.

(2) Such public officer or employee may file with the clerk a verified answer to such a report not later than twenty days after service of the order and report upon him. Upon a showing of good cause, the court may grant such public officer or employee an extension of time within which to file such answer and may authorize such limited publication of the report as may be necessary to prepare such answer. Such an answer shall plainly and concisely state the facts and law constituting the defense of the public officer or employee to the charges in said report, and, except for those parts thereof which the court determines to have been inserted scandalously, prejudiciously, or unnecessarily, such answer shall become an appendix to the report.

(3) Upon the expiration of the time set forth in paragraph (1) of subsection (c) of this section, the United States attorney shall deliver a true copy of such report, and the appendix, if any, for appropriate action to each public officer or body having jurisdiction, responsibility, or authority over each public officer or employee named in the report.

(d) Upon the submission of a report pursuant to subsection (a) of this section, if the court finds that the filing of such report as a public record may prejudice fair consideration of a pending criminal matter, it shall order such report sealed and such report shall not be subject to subpoena or public inspection during the pendency of such criminal matter, except upon order of the court.

(e) Whenever the court to which a report is submitted pursuant to paragraph (1) of subsection (a) of this section is not satisfied that the report complies with the provisions of subsection (b) of this section, it may direct that additional testimony be taken before the same Grand Jury, or it shall make an order sealing such report, and it shall not be filed as a public record or be subject to subpoena or otherwise made public until the provisions of subsection (b) of this section are met. A special Grand Jury term may be extended by the district court beyond thirty-six months in order that such additional testimony may be taken or the provisions of subsection (b) of this section may be met.

(f) As used in this section, ''public officer or employee'' means any officer or employee of the United States, any State, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, or any political subdivision, or any department, agency, or instrumentality thereof[.]

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