On Sun, 13 Jan 2002 00:46:56 GMT, [email protected] (Keith Henson) wrote:
>There are exhibits I will post on this thread.
LAW OFFICES OF GRAHAM E. BERRY
1223 Wilshire Boulevard
Santa Monica, California 90403
Telephone: (310) 395-4800
Facsimile: (310) 393-4507
October 7, 1999
Via Telecopier to (213) 487-5385 and first-class mail
Ava Paquette, Esq. MOXON & KOBRIN 3055 Wilshire Boulevard Suite 900 Los Angeles, California 90010
Re: In Re GRAHAM E. BERRY / Case No. LA99-32264 ER
Hurtado v. Berry / Adv. No. AD99-02559-ER
Moxon v. Berry / Adv. No. AD99-02615-ER
Dear Ms. Paquette:
This epistle responds to both of yours dated yesterday, October 6, 1999, and also sets forth my recollection of what occurred during our purported "early meeting of counsel" and "meet-and-confer" of the same date.
First, despite what Judge Williams permitted the Scientology organization, through Mr. Moxon, to do in his courtroom, the fact that the vexatious litigant ruling is under appeal, the fact that the proceedings before Judge Williams are tainted by a fraud upon that court, and the fact that you are now seeking to further abuse process in the bankruptcy court, I nevertheless still have faith in the integrity of our judicial system generally. In that regard, you may wish to read a classic issue of the American Lawyer magazine containing an article entitled "Scientology's War Upon the Judges." However, as Judges Ideman, Hupp, Kolts, Breckenridge, and numerous federal and state appeals court panels have demonstrated, the Church of Scientology cannot intimidate every judge. Indeed, a relatively recent FBI investigation report reveals that certain of your attorneys had made a midnight visit in an unsuccessful attempt to have an ex parte communication with a certain judge in this judicial district. I mention this because of your telephonic tirade of yesterday morning, and your subsequent written comment, about my advising the trustee that I was keeping a duplicate and control date-numbered set of the documents I produced to the bankruptcy trustee, because of possible loss. In that regard, you seem to have forgotten the testimony of various witnesses in other cases, and Scientology's stipulation in U.S. v. Hubbard, that Scientology's "Operation Snow White" existed in connection with the "culling," or removal, of court records, government records, library books, etc. Indeed, only last month three and a half tons of documentary evidence for the fraud trial of the Scientology Church in France disappeared from the courtroom, and that last year Scientology-related documents disappeared from the Swedish Parliament in circumstances linked to the Church.
Moreover, on that same date, October 6, 1999, on which we had our "early meeting of counsel," I received an empty envelope from Attorney General Janet Reno's own office. The contents of the communication had been removed. As you well know, not only the media, but also the federal government, is closely following Mr. Moxon's activities against me, partly because his activities so blatantly contradict the Church of Scientology's express 1991-1993 representations to the IRS regarding the manner in which the Church had changed its "overly aggressive use of the litigation process."
During our telephonic "early meeting of counsel," I agreed that in 18 months of dealing with you, I have not known you to be engaged in such conduct yourself. However, I reminded you that the motion for terminating sanctions against Mr. Moxon disappeared not once but twice from the court files in Berry v. Cipriano. Similarly, the transcript of Judge Williams' purported disclosure of his then fiancée's employment reflected that she was employed by the defendant Church of Scientology International when my recollection at the time, and those of others in the courtroom, was that he said that she was working for Bridge Publications (allegedly as a translator) which was merely an affiliated corporation. Moreover, the fact remains that you are with the OSA Legal Unit and, as the old saying goes, "if you lie down with snakes, you just may get bit." I have therefore tried to caution you in that regard.
This leads me to my second point. You have refused to confirm or deny whether or not you have read the Cipriano declarations and their exhibits. I can understand why. However, I have also told you several times that I want you to be sure that you know where all of this is leading (to the Criminal Courts and the State Bar) so that you may remove yourself in a timely manner.
Which now leads me to my third point. Despite 18 months of cordial relations with you, our last few conversations have been characterized by shrill threats and near hysteria on your part. Similarly, the declaration just filed by Captain Miscavige in the Wollersheim alter ego opposition, exhibits similar panic and hysteria, not to mention some important, and no doubt unintentional, admissions. I believe that the documentary and testimonial evidence of criminal and tortious wrongdoing on the part of or on behalf of Mr. Moxon, Mr. Ingram, Mr. Cipriano, Mr. Hurtado, and numerous others with, or acting with, the Scientology organization, is overwhelming and more than sufficient to meet the threshold requirements for punitive damages, Civil Code § 1714.10, vexatious litigant, Rule 11, or any other purpose (such as RICO). Contrary to your innuendo, I am happy to lay it all upon the court record whilst reminding you that Rule 11 sanctions motions can themselves be subject to Rule 11 sanctions motions. Similarly, I put you on notice during our telephonic "early meeting of counsel" that a successful cause of action, or affirmative defense, for abuse of process can be followed by an action for malicious prosecution against Mr. Moxon, Mr. Hurtado and their attorneys of record in connection with the adversary complaints they have filed.
Fourth, your letters also refer to the abstention doctrine as being the basis for your threatened Rule 11 motion. The abstention doctrine permits the bankruptcy court to refer non-core litigation to the district or state courts where appropriate (complexity, length of trial, number of witnesses, etc.). It does not preclude non-core matters being filed in connection with pending bankruptcies, particularly where an adversary action, or objection to claims (as I shall shortly file), commences a case that is litigated in the normal manner but also triggers compulsory counterclaims and the right to make certain collateral attacks, or request a stay, pending the outcome of a Federal Rule 60(b) motion which, as I told you, I would shortly make to Judge Snyder.
As you know, your former client, Robert Cipriano, has executed three declarations recanting the perjury suborned by Mr. Moxon and Mr. Ingram, and a fourth declaration regarding certain other matters. (This week's police raid on Scientology in Belgium was apparently merely a coincidence in that regard.)
The Cipriano declarations, and their exhibits in Mr. Moxon's own handwriting, unequivocally and irrefutably demonstrate that at the very same time that Mr. Moxon was making sworn representations in Judge Snyder's courtroom denying improper conduct, he was in fact engaged in that very same misconduct outside the courtroom. In other words, he was committing the same criminal conduct outside the courtroom concurrently with his sanctions motion and denials of that same conduct in the courtroom. Not only is that classic material for a Rule 60(b) motion, but it is also classic material for the court to set aside an order as a result of its inherent disciplinary jurisdiction where counsel is shown to have been concurrently engaged in criminal and tortious misconduct against opposing counsel in an effort to gain an advantage in a proceeding. Surely, you cannot quibble with that proposition. Accordingly, why are you so frantic about the prospect of the court having the opportunity to weigh the evidence?
You commenced yesterday's "early meeting of counsel" by stating that you were not going to discuss any discovery or other early meeting subjects regarding my counterclaim because you were, "Going to have the court strike it, and I [you] would immediately move for summary judgment on your complaint." Do I not get to file an opposition to those motions? Do I not get to prosecute my affirmative defenses?
You also refused to discuss anything to do with the Hurtado adversary complaint, answer or counterclaim on the basis that you saw no similarities between the Moxon and Hurtado counterclaims at all. In response, I told you I would be filing a notice of related case and motion to consolidate, to which you said you disagreed and indicated that both counterclaims would be dismissed. Ava, doesn't the judge have a say in any of this?
When I raised the issue of documents and depositions, you expressed astonishment that I intended taking a number of depositions in a bankruptcy-related matter. You intimated that the only relevant document was Judge Snyder's order and that I already had a copy of it. I indicated that there were voluminous documents to support the affirmative defenses (e.g., abuse of process), the abuse of process counterclaim and my soon-to-be-filed "objection to claim," and that both you and the trustee already have said documents. However, you correctly indicated that I should list them and I am happy to do so. In addition, I enclose herewith my authenticating declaration (without exhibits) which describes many of the relevant documents.
Finally, you agreed that the more appropriate procedure for our "early meeting of counsel" would be for us to exchange our lists of documents and witnesses together with the other items required to be discussed and agreed upon, including scheduling. This we agreed to do on or before Monday, October 11, 1999.
As to settlement, you seem surprised that I was not willing to offer up large sums of money. I did tell you that I was willing to pay $250 to make Mr. Moxon go away, but that otherwise I wanted justice against Mr. Moxon and Mr. Ingram for what they have done (as evidenced by the various declarations). To remind you, it involved conduct of a similar, but much more serious, nature to that which was alleged in the impeachment of President Clinton earlier this year (witness tampering, obstruction of justice, subordination of perjury, etc.) and which has criminal implications even when committed in civil litigation by representatives of a church. You are no doubt familiar with the Scientology phrase, "crim-mind," or criminal mind, meaning, to accuse others of what you yourself are guilty of doing. You should carefully think of that before you so baselessly accuse me of misusing the bankruptcy process.
The obviously never-ending Rule 2004 examination of me (about to head into session three), and the depositions of my employees that you are now embarking upon, exemplify "crim-mind." Your office deposed my part-time paralegal, Jane Scott, earlier this year. As you know, she is a former Scientologist and her ex-husband is still a Scientologist. You also knew that she only met me little more than a year ago. However, you have subpoenaed her bank records going back four years. Putting aside the propriety of even subpoenaing her bank records, absent an appropriate showing, the subpoena is clearly abusive. However, I shall provide you with a list of the various accounts on which she is or has been a signatory during the relevant period, as part of the meet-and-confer process. Similarly, to subpoena the bank records of my former part-time legal assistant, Ray Benkoczy, absent any further showing, is also abusive.
So far, satisfying your document demands, and those you suggested the trustee request, has cost me a number of thousands of dollars of photocopying charges and many days of my time. If your organization had not used its "Fair Game" policies and practices to drive me into bankruptcy, and then sought to misuse the bankruptcy process to cause me additional time and expense for the purpose of using the bankruptcy proceeding to purchase my causes of action against your organization for engaging in such wrongful conduct in the first place, then I would not have to write this letter.
Accordingly, far from my "misusing the simple bankruptcy adversary case to litigate wholly irrelevant matters" or my having "a personal vendetta against Scientology," the Scientology organization is again misusing the litigation and bankruptcy process (through shills and shams) as part of "Fair Game" against "suppressive persons" or "enemies." It has also been doing that in the Henson bankruptcy. Additionally, it did the same in the Cult Awareness Network (CAN) bankruptcy. In case you missed the recent New Times Los Angeles article on the CAN bankruptcy, I enclose a downloaded copy for your information. Simply put, the article (and the evidence I took from Garry Scarff in the Fishman/Geertz case) evinces that Mr. Moxon solicited the representation of Jason Scott as part of the "Bowles and Moxon Plan 100," to have up to 100 meritless lawsuits pending against CAN at any one time in order to drive it into bankruptcy from whence Scientology would, and did, purchase its assets.
Now, if you really mean what you say in the second paragraph of your four-page October 6, 1999, letter, that you only want to litigate "the case at hand," then I trust I will see no further pleadings from your office that contain venomous diatribes of prolix prose accusing me of all manner of despicable conduct. Those accusations in your pleadings have been based upon the contents of the 1994 Cipriano declaration, which Mr. Cipriano has now recanted and which he has sworn was obtained by blackmail and bribery perpetrated by your own Mr. Moxon and Mr. Ingram.
Additionally, I indicated to you that I would be moving to disqualify your law firm, as counsel for the Church of Scientology International and the individual Scientologists herein, just as the Northern District of California Bankruptcy Court has disqualified your firm from conducting further depositions and discovery in the Henson bankruptcy after Helena Kobrin conceded that Moxon & Kobrin does at least 50% of its work for the Church of Scientology (and most of us know that nearly 100% of Moxon & Kobrin's work is for the Church of Scientology).
So as you may give further consideration to stipulating to withdraw as counsel for all of your various clients in this bankruptcy procedure, thus saving me the time and expense of making the necessary motion, and as part of the "meet-and-confer" process, let me posit this wholly factual tale for your consideration:
1. In late 1991, a legal malpractice defense attorney was retained to defend a former Scientology attorney (Joseph A. Yanny) being sued for breach of fiduciary duty for helping a former Scientology organization executive (Vicki Azneran) find a lawyer so that she might sue the Church for tort damages in connection with activities which, as one of the Church's leaders, she testified, often involved criminal conduct. The attorney defendant also testifies that he had been requested to engage in criminal conduct directed at opposing counsel (Charles B. O'Reilly, Esq.). However, Yanny withdrew after refusing to be so involved any longer. The defense attorney's team prevailed at the trial and appellate levels in Yanny I and Yanny II. Moxon was one of the unsuccessful plaintiff's counsel herein. American Lawyer magazine then publishes an article entitled "The Two Faces of Scientology" delineating some of this saga.
2. In 1992, the defense attorney also intervenes in the Armstrong II case and raises Constitutional issues regarding certain gag settlement agreements precluding a lawyer (Michael J. Flynn, Esq.) from ever representing anyone against the Church again. Cable News Network (CNN) reports on these matters.
3. In 1993, the defense lawyer is retained to defend Dr. Uwe Geertz, a psychologist who had been treating former Scientologist, Steven Fishman, in a lawsuit brought by the Church of Scientology (the Fishman/Geertz case) precipitated by statements Dr. Geertz made to Time magazine (May 6, 1991: "Scientology, Thriving Cult of Greed and Power"). The Church dismisses its defamation lawsuit against Fishman and Geertz on the eve of trial (pursuant to FRCP Rule 41(a)) after the defense attorney conducts discovery that produces extensive evidence of the Church's involvement in alleged instructions to commit financial fraud, to commit murder, and to commit suicide ("end of cycle"). There is extensive international media coverage of this matter and as a consequence the Church's "trade secrets" end up on the Internet.
4. The Church uses Moxon and Ingram to coordinate its judiciary-recognized "Fair Game" policies and practices against the defense attorney. It blackmails Robert Cipriano into making perjurious allegations that the defense lawyer is a pedophile. It then disseminates those allegations, and many others, on the Internet (where they continue to remain), to all of his friends, acquaintances, law partners, business associates and clients, as well as to many judges, politicians and government officials. The Church then files in excess of five State Bar complaints and several criminal complaints (all unsuccessful), distributes defamatory leaflets around the defense lawyer's neighborhood, and otherwise seeks to destroy him (a process which is continuing to this day). (At the very same time, the Canadian courts are handing down the largest defamation award in their history in favor of a Canadian lawyer who the Church had set out to destroy and defame.)
5. The defense lawyer's senior partners are also "investigated" and blackmailed into agreeing that the defense lawyer will also never represent anyone against the Church again; blackmailed into taking the clients' files and "deep sixing" them in advance of a prospective malicious prosecution case; and withdrawing from the insurance-funded litigation so that the Church could then obtain an unopposed order temporarily sealing the files containing evidence of Scientology-related instructions to commit financial fraud, murder and suicide ("end of cycle").
6. Outraged by this conduct, and refusing to be cowered in this manner, the defense lawyer joins another large law firm and accepts defense retentions in a number of other cases filed by the Church in connection with the alleged dissemination of its copyright and trade secret business materials on the Internet, picketing, and other expressions of free speech. In one case involving the Church and the defense lawyer, the Church uses up to 28 lawyers at a time against the client and defense lawyer, at costs of up to $2 million per action, and finally manages to obtain some sanction orders against him (although he has never before been sanctioned in his entire then 22 year legal career).
7. The defense lawyer also becomes briefly involved in the CAN bankruptcy. Moxon had solicited the representation of Jason Scott for whom he obtained a multi-million dollar judgment against CAN. Instead of compromising the judgment for Scott, Moxon drove CAN ("Old CAN") into bankruptcy on behalf of the Church of Scientology which then purchased its old nemesis' assets and proprietary rights ("New CAN") and now sinisterly operates under the guise of the original CAN for the purpose of intercepting members of the public seeking help with loved ones victimized by cults. When Scott finally realized Moxon's multiple layers of conflicts of interest, and Moxon's real agenda, Scott switches representation from Moxon to the defense lawyer.
8. Because of the Church's "investigation" of the defense lawyer's new law firm, its attorneys' clients, and others, and the ready availability of the Church's defamatory packages ("dead agent packs") about the defense lawyer on the Internet, the defense lawyer chooses to leave the firm because of the grave allegations and sue, rather than concede that the Church's "Fair Game" policies and practices have further depleted the fewer than five lawyers nationwide who were and are willing to represent litigants against Scientology.
9. Simultaneously, the German government flies the defense lawyer to Washington, D.C., to appear before a German Parliamentary Commission enquiring into Scientology as a psycho-terrorist cult. The German government then flies the defense lawyer to Germany to meet with the German Secret Police after that government had placed the Church under surveillance for being a suspected terrorist, totalitarian organization engaged in criminal, commercial, and fraudulent activities. The Russian, Greek, Spanish, French and Belgian governments raid the Church's various European premises and seize tons of documentary evidence. Among other things, the Belgium evidence indicates (and confirms) what one might pointedly (because it is not yet public) refer to as "currency cleaning." The Greek Police find senior officials on Church "enemies lists," and Spain indicts the Los Angeles-based President of the Church.
10. Concurrently, the defense attorney discovers the whereabouts of Cipriano and the identity of certain anonymous distributors of the Church's defamatory publications about the defense attorney. He sues the so-called sources of the defamation in one lawsuit (Berry v. Cipriano), the non-Church publishers in another lawsuit (Berry v. Barton), and the "instigating" Church itself in a third lawsuit (Berry v. Miscavige). These cases are related and consolidated. Moxon and Ingram, who know they are going to be sued in Berry v. Miscavige, solicit the representation of Cipriano, promising up to $750,000 in financial benefits if he works with them to maintain the perjurious allegation that, among other despicable things, the defense attorney is a pedophile.
11. Over the next 14 months, the Moxon & Kobrin law firm (of which you were then a part) spends hundreds of thousands of dollars keeping Cipriano away from the defense lawyer, leasing expensive residences, a car, paying for legal fees, living expenses, business expenses, expenses relating to the expunging of criminal records, and other conduct that has just come to light and that constitutes witness tampering, bribery, blackmail, extortion, obstruction of justice, subornation of perjury, etc., etc. Moxon continues to refuse to explain why the Moxon & Kobrin law firm would pay hundreds of thousands of dollars to and for Cipriano, charge him no fees, pay his criminal restitution, and pay for his criminal record to be expunged, etc., before the Berry cases go to trial.
12. Moxon has already been shown to have solicited the representation of Jason Scott in order to destroy Scientology's longtime nemesis CAN. Subsequently, Moxon will be shown to have solicited the representation of not only Cipriano but also Hurtado, in order to destroy the defense attorney. Moreover, prior to becoming a lawyer, Moxon had been named (in a stipulation signed by the U.S. Justice Department and Scientology) as an unindicted co-conspirator in connection with the falsification and fabrication of evidence submitted to the FBI, as well as in connection with the largest-ever-known criminal infiltration of the United States Government, thus compelling the conclusion that Moxon is not above violating the law.
13. Moxon then assembles another large group of lawyers around him (including one who bills at $490 per hour and offers "no discounts to anyone"), including those from two expensive New York law firms and one expensive Washington, D.C. law firm, and engages in blatantly abusive and overwhelming discovery conduct, even allegedly being involved in the defense lawyer's new partners' termination of partnership, obtains a discovery default against the client and the defense lawyer, and so drives the defense lawyer out of the litigation wherein he seeks to vindicate himself against the allegations of pedolphilia suborned in the first place by Moxon and Ingram. After Moxon obtains a dismissal of Chait as the discovery default sanction, the defense lawyer voluntarily dismisses the other defendants without prejudice. The defense attorney is then pressured into voluntarily dismissing, without prejudice, Berry v. Miscavige as a Church precondition for being involved in meaningful settlement discussions with the defense lawyer.
14. As a consequence of Moxon & Kobrin's abusive discovery in the Cipriano/Barton cases, the defense lawyer testifies that he had provided free legal services to a 24 year old man (Hurtado) with whom he also had a sexual relationship. Moxon and Ingram immediately solicit the representation of Hurtado and file suit against the defense lawyer alleging sexual battery and legal malpractice. They then unsuccessfully pressure the Los Angeles Sheriff's Department and District Attorney's Office to arrest and prosecute the defense attorney for pandering.
15. However, before Moxon's abusive and overwhelming discovery strategy drives the defense attorney out of his lawsuits in which Moxon and Ingram are about to be added, one defendant in Berry v. Cipriano settles for $75,000 and one defendant in Berry v. Miscavige settles for $20,000. One of the defendants in the Berry v. Barton case (Scientologist W. Russell Shaw) settles for an exchange of mutual general releases and an agreement by Shaw to testify at the defense lawyer's request in subsequent cases (where Shaw is expected to testify that he was merely providing an Internet conduit for the transmission of the defamatory Cipriano perjurious allegations by Church officials, Ingram and Moxon). Having convinced the defense lawyer to voluntarily dismiss Berry v. Miscavige as part of promised meaningful settlement negotiations, a Church attorney engages in a short and meaningless settlement discussion with the defense lawyer.
16. Meanwhile, the defense lawyer has agreed to represent several plaintiffs against the Church, including Michael P. Pattinson who had achieved the highest levels of Scientology training, spending 25 years and $500,000 with the Church, only to find that it was all a secular fraud. Pattinson retains the defense lawyer to sue the Church, and also Moxon for conducting much of the Church's abusive litigation, fraudulent and other wrongful activities. The Church uses Moxon as a Rule 11 "stalking horse" and convinces the court (Judge Snyder) that the defense lawyer should be sanctioned for pleading that Moxon was engaged in criminal conduct on behalf of the Church. However, just recently, Cipriano testifies in his recanting declaration that concurrently with seeking the Rule 11 sanctions from Judge Snyder, Moxon was engaged in the very same criminal activities outside the courtroom, thus constituting his Rule 11 motion a fraud upon the court and subject to reversal as part of other available sanctions, such as contempt.
17. The Church then files a vexatious litigant motion against the defense lawyer alleging that the voluntary dismissal of Berry v. Cipriano, Barton, and Miscavige, and the Snyder sanctions order, constitute sufficient basis for the defense lawyer to be declared a vexatious litigant by Judge Williams, who refuses to disqualify himself when his then fiancée actually works for the Church and moving party. Cipriano suddenly testifies that his then attorney, Moxon, had had the Berry v. Cipriano and Berry v. Barton cases moved from Judge Hiroshigi to Judge Williams because, "Judge Williams is a friend of the Church." Judge Williams considers Cipriano's declaration as to Moxon's criminal conduct against the defense attorney in the very same litigation to be "irrelevant" to the vexatious litigant proceeding. Moxon introduces his new Church of Scientology International co-counsel, Gerald Chaleff, Esq., Chairman of the Los Angeles Police Commission and a prominent Los Angeles criminal defense attorney, as his own counsel.
18. By this point, the defense lawyer's litigation to seek vindication from the Church, and the Church's war of litigation attrition as well as continuing defamatory publications to the defense lawyer's clients, potential clients, friends, and others, have driven him into bankruptcy.
19. Moxon then appears in the defense lawyer's "no asset" bankrupcy on behalf of himself (on the basis of the Judge Snyder sanctions motion), Barton (a fellow Scientology executive), Chait (who financed and worked on the dissemination of the Cipriano allegations of pedophilia and paid money directly to Cipriano), Michel Revelliere (a fellow Scientology executive who Moxon represented in a retaliatory lawsuit against the defense lawyer's federal court client wherein Moxon obtained the Judge Snyder sanction), and Church of Scientology International (which employs Moxon, Barton, Ingram and Revelliere). Until then, there had been no suggestion that Revelliere, who had sued defense lawyer's client, had any sort of claim against defense lawyer. In fact, it was merely a case in which Moxon had prevailed on a motion for summary judgment in an action on an unpaid promissory note by the defense attorney's client, Michael P. Pattinson.
20. Moxon then, despite having deposed the defense lawyer for 13 days during this and the previous year in Berry v. Cipriano/Berry v. Barton), and for another day in Abelson v. Greene, proceeds with day after day of Rule 2004 examination of the defense lawyer in his bankruptcy filing. Although they had already obtained many boxes of documents and records in the Berry cases, Moxon continues demanding documents going back 10 years and more, as well as every single check the defense lawyer has written for the past five years. Merely copying and producing the documents, requiring many days of searching and compilation, costs the defense attorney many thousands of dollars at a time when he is struggling through bankruptcy. In addition, Moxon and his associate Ava Paquette, Esq., serve deposition subpoenas on the defense lawyer's part-time paralegal and former part-time legal assistant requiring them to produce, in one instance, all bank records, and in another instance, records going back four years (involving approximately 3,000 checks in one account alone), despite having taken her deposition only a few months earlier in the Berry cases.
21. Moxon files an adversary proceeding to have his $28,000 Judge Snyder sanctions award rendered non-dischargeable. Moxon, on behalf of Hurtado, files another adversary proceeding to have the perjurious sexual battery and baseless legal malpractice action rendered non-dischargeable.
22. Moxon and Paquette also serve a $700,000 settlement demand upon the defense attorney's legal malpractice insurance carrier in connection with the perjurious Hurtado sexual battery and legal malpractice claim. On behalf of Hurtado, Moxon and Ingram also pay an underage street hustler, totally unknown to the defense attorney, $300 in exchange for a perjurious allegation of statutory rape by the defense attorney. However, they are thwarted by the young man's re-arrest before his noticed deposition.
23. Meanwhile, at the luxious five-bedroom home leased by Moxon for him, Cipriano decides he can no longer live with the perjury Moxon is paying him to perpetrate against the defense lawyer. Cipriano telephones the defense lawyer explaining that he "must make amends." He then recants his perjury and writes an affidavit describing the criminal activities perpetrated by Moxon and Imgram to destroy the defense lawyer, thus providing the defense lawyer with hard documentary evidence tying Moxon to witness tampering, subornation of perjury, obstruction of justice and other crimes.
24. Media across the nation start preparing lengthy exposes of Moxon's seven-year worldwide campaign to destroy the defense attorney, the manner in which Judge Williams allowed Moxon to proceed in the Berry cases, and the unbelievable ruling of Judge Williams upon the contrived vexatious litigant motion. Cipriano actually appears before Judge Williams who, in effect, allows Moxon to retain Cipriano's legal files and securities despite termination and motion to recover them. Moxon "camps out" at the home of Cipriano's friends and frantically communicates with another Cipriano associate in an effort to meet with Cipriano and "straighten things out." Moxon "repossesses" the car he has leased for Cipriano and dispatches his investigator, Edwin Richardson, to get Cipriano from a hotel where he is staying and take him to "an old lawyer on Wilshire Boulevard who will make everything all right." At Cipriano's frantic request, the defense lawyer rescues Cipriano from Moxon's "investigator." At this point, the Internet goes crazy. (I have enclosed a few examples from the Internet for your edification.)
25. The defense lawyer files counterclaims to Moxon's adversary complaints (setting forth a single abuse of process claim based on a documented series of wrongful acts over a number of years culminating with the 1994 Cipriano declaration and its exhibits) and intends to file (if the trustee refuses) an objection to the claims by Church of Scientology International, Hurtado, Moxon, Chait, Barton and Revelliere.
26. Moxon and Paquette deny having any conflict of interest regarding the aforesaid matters, claiming that summary judgment should be granted in Moxon's favor and further ordering the defense attorney to pay Moxon $28,000 for alleging that Moxon had been engaged in criminal conduct on behalf of the Church when, in reality, Moxon was, at the same time, engaging in the precise conduct of which he had been accused.
In spite of the fantastic nature of this tale, I assure you, Ava, that it is completely true, for I, Graham E. Berry, am the defense attorney whose tale I have just told.
Now, are you really being serious when you continue to say that there is nothing wrong with the above story? Are you not forgetting that the bankruptcy court also has an equity jurisdiction? Doesn't a bankruptcy claim have to be a valid and lawful debt? Isn't a debt procured by a fraud, whether upon a person or upon a court, an invalid and improper debt? Aren't all of these things, and the conduct of counsel in perpetrating them, a fraud and contempt upon the court?
Do you seriously contend, Ava, that the above picture, coupled with the contents of the Cipriano declaration and exhibits, the Andre Tabayoyan, Robert Vaughn Young, Stacy Brooks and Garry Scarff declarations, does not amount, at the very least, to Rule 11 violations by Moxon? Don't you concede that we now have admissible evidence from Jason Scott and Robert Cipriano that Moxon (and your law firm) improperly solicited the representation of Scott and Cipriano (and that the same is demonstrably true of Hurtado)?
Because the above tableaux is documented by Mr. Moxon's own handwriting on lease agreements, letters and declarations, as well as the declarations of others, you know that the above scenario as well as the contents and exhibits of the Cipriano declaration are true. It is black letter law that one cannot, by any means, profit from one's own misconduct. Thus it is that the Church's "Fair Game" policies and practices used to punish me for representing litigants against it and for daring to sue it for engaging in such "Fair Game" activities against me, has collided head-on with my Constitutional right of petition and counterclaim (indeed compulsory counterclaim), in the bankruptcy court herein.
You know what David Miscavige's former deputy, Jesse Prince, will testify to as an expert witness regarding Scientology's "Fair Game" policies and practices and how they have been utilized against opposing attorneys and judges. You also know that Mr. Prince will testify about which judges and opposing counsel have been subjected to "Fair Game." Then there is the testimony of former OSA operative Frank Oliver. "Investigators" Michael Shomer and Thomas Krywucki will also be interesting deponents testifying on their retention by the Church and Moxon. And what of former IRS Commissioner Fred Goldberg? He cannot be kept silent forever!
Now, Ava, I know that you, Rick Moxon, Mike Rinder and Captain Miscavige are now saying, "So what! This is all irrelevant." I disagree. So do Civil Code Sections 3512, 3514, 3515, 3517, 3520 and 3523. The above-delineated misconduct by Hurtado, Ingram and Moxon (and his office) carries with it the potential sanction that the court can undo all prior orders obtained by the transgressing attorney, whose misconduct may also result in the dismissal and sanction of his client whose recourse (if found by the court to be uninvolved) is an action for malpractice. There is the holding of a long line of appellate authority that you keep ignoring when you claim that the prevailing party cost orders (Barton and Chait) and sanctions order (Moxon) are unimpeachable and non-litigable in the Bankruptcy Court.
Moreover, you cannot properly opine that the Bankruptcy Court is going to accept your motion to dismiss, and that neither this court nor any other court would find Moxon culpable for the above-described criminal, tortious and unethical conduct; that the other courts would not vacate their previous orders; and that no court would sanction Moxon and his "clients" herein or issue terminating sanctions in this or any other underlying litigation. Consequently, you cannot obtain a valid conflicts waiver from, between and among your firm and its various clients herein. Neither could a truly independent counsel properly advise your clients to execute such a conflicts waiver. Moreover, no one can suppose that your aggrieved client(s) may not have a subsequent claim for indemnification (implied, imputed or otherwise), contribution, breach of fiduciary duty or malpractice. Thus, you cannot get a valid and proper conflicts waiver from, between and among your firm and its various clients herein under any circumstances.
Accordingly, you and Moxon must either withdraw or be disqualified as counsel herein. In addition, what about Moxon and the attorney-as-witness rules and the requirement of independent legal advice and written conflict waivers? In one case in which I was involved, the court ordered counsel to require their multiple clients not only to file conflicts waivers, but also certificates of advice from truly independent counsel.
That is why I have written at such unusual length. This missive is also my "meet and confer" letter regarding my prospective motions to: (1) order the Moxon and Hurtado cases related and consolidated; (2) quash the Jane Scott bank subpoenas; (3) issue protective orders regarding other discovery and depositions; (4) disqualify Moxon and his "firm" herein; (5) vacate the Judge Snyder sanctions order pursuant to FRCP Rule 60(b); (6) possible petition for writ of mandate; and (7) impose contempt and terminating sanctions based on Moxon's witness tampering, subornation of perjury and obstruction of justice.
In Scientology parlance, this is called "pulling it in yourself." The same thing happened with Paulette Cooper, who your organization framed for, among other things, making bomb threats, and which the FBI only discovered were false when it raided your organization's Los Angeles and Washington, D.C. headquarters. A more prudent person, less bent upon "Fair Game" and punishment, might have ceased his pursuit of the defense lawyer at the bankruptcy courthouse door. Certainly, a prudent person not hellbent upon the punishment of the defense lawyer, would not have risked being exposed for legal malpractice and breach of fiduciary duty (to Cipriano and Hurtado); insurance fraud; bankruptcy fraud; a fraud upon the state, district and bankruptcy court; an action for abuse of process; and a potential malicious prosecution action to follow.
Additionally, the above facts are another reason why the Church cannot allow me to take any discovery in the bankruptcy court without risking vast exposure, and must convince the bankruptcy court that not only is this a non-core proceeding that must be tried in the district court, but also that it should really be tried in the state court (but is barred from being filed there by a vexatious litigant ruling procured by fraud, and after the time to file a counterclaim as of right therein has expired, meaning that any motion to add a counterclaim now has an additional unexpected hurdle in terms of threshhold showing, time and expense).
This may all appear to be like Alice in Wonderland. However, this tale is absolutely true, and it is corroborated by documents, declarations, and deposition testimony. Contrary to David Miscavige's declaration dated September 24, 1999 (a copy of which is enclosed for your convenience), I am not one of those litigants who allegedly are in this for the money. This is no "vendetta." I merely seek vindication of my name and compensation from Mr. Moxon, Mr. Ingram, Mr. Hurtado, and others, who have, with such coldhearted calculation, applied the Hubbard teachings, policies and practices (most notably, "Fair Game") to destroy my career and economic prospects.
You might call it a "vendetta" though it is not. I prefer to call it seeking justice from the law and from our courts. Despite what has been done to me and Mr. Pattinson (not to mention Mr. Jeavons, Mr. Henson and countless others), I still believe in the American system of justice. I also believe that somewhere deep down, outside the parameters of Hubbard's teachings and the Scientology "courts of justice" and "committees of evidence," you, too, may still believe in justice.
Accordingly, I did not want any of the contents of this letter (and the evidence referred to) to come as an epiphany to you when you read it for the first time in court papers filed by me. Furthermore, since you were not involved as an attorney in these matters, earlier than 18 months ago, I wanted you to have notice of the above events and the light in which I contend they should be cast. I know your OSA superiors will disagree, but at least I have placed you upon "inquiry" or "investigation" notice, if only as far as the non-Scientology or "Wog" courts are concerned.
Finally, and with regard to settlement, I remind you that I have made it clear that even if I were of a mind to settle with Mr. Moxon and the Church, I could not do so because of the pending Hurtado and Pattinson matters. As to Pattinson, your regular co-counsel Eric Lieberman agrees with my position that I cannot ethically (and would not anyway) enter into any settlement negotiations with Moxon, Ingram and/or the Scientology organization before first concluding a settlement in the Pattinson case. As I have already said on Mr. Drescher's voicemail, that matter must be concluded before October 13, 1999.
Ava, please think carefully about the issues raised herein. Should you have any questions, please feel free to contact me.
Very truly yours,
GRAHAM E. BERRY
Enclosures (via mail only)
cc: Jerry J. Bregman, Esq.
William T. Drescher, Esq.
Resondo Gonzalez, Esq.
Peter J. Leotta, Esq.
Eric M. Lieberman, Esq.
Edith R. Matthai, Esq.
Kendrick L. Moxon, Esq.
bcc: attached list