Rule 60 draft: Robert Cipriano. By Keith Henson.
From: Keith Henson <[email protected]>
Date: 21 Mar 2000 10:20:36 GMT
Message-ID: <[email protected]>

"sub·orn tr.v. sub·orned, sub·orn·ing, sub·orns. 1. To induce (a person) to commit an unlawful or evil act. 2. Law. a. To induce (a person) to commit perjury. b. To procure (perjured testimony)."
[...] Still draft, suggestions wellcome. H. Keith Henson P.O. Box 60012 Palo Alto, CA 94306 (650) 423-4040 (pager) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RELIGIOUS TECHNOLOGY CENTER, a ) Case No. C-96-20271RMW California non-profit corporation, ) Plaintiff, ) ) MOTION UNDER RULE 60(b)3, ) RULE 60(b)6 AND RULE 6. v. ) RELIEF FROM JUDGEMENT ) DUE TO ADVERSE PARTY'S H. KEITH HENSON, an individual, ) CRIMINAL MISCONDUCT. ) OPTIONAL REQUEST FOR Defendant. ) EVIDENTIARY HEARING ____________________________________ BACKGROUND In August of 1999, a little over a year after the judgmen on the copyright issues in the underlying case, Mr. Robert Cipriano stepped forward with a remarkable declaration (Exhibit A, attached supporting documents 1-50) alleging criminal activities; impersonating a police officer, blackmail, bribery suborning perjury, perjury, and witness tampering, by the plaintiff's private investigator, Eugene Ingram, and plaintiff's lawyer, Kendrick Moxon, against Mr. Graham E. Berry. [add note one here] The court will recall that Mr. Berry was the defendant's lawyer for a period which included trial on both the copyright and the contempt issues. Rule 60 FRCP reads: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) ; (3) *fraud* (whether heretofore denominated *intrinsic or extrinsic)*, misrepresentation, or *other misconduct of an adverse party;* (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) *any other reason justifying relief from the operation of the judgment.* The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., 1655, *or to set aside a judgment for fraud upon the court.* Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. ------------------------------- It has been less than a year since judgment was issued on the contempt issue, so an ordinary motion for reconsideration or reversal of judgment can be made under Rule 60(b)(3) on the contempt issue. If the court considers the abuse of my counsel, Mr. Berry, described below and in the exhibits, and organized by RTC counsel Kendrick Moxon an "extraordinary circumstance" the court could reconsider the RTC copyright judgment under FRCP 60(b)(6). "A FRCP 60(b)(6) motion will be granted only in extraordinary circumstances or under circumstances imposing extreme or undue hardship." Holland v Virginia Lee Co. (1999, WD Va) 188 FRD 241.) Also, after duly considering this matter, the court may decide that the offenses amount to an "unconscionable plan or scheme which is designed to improperly influence the court in its decision." This would establish fraud on the court (First Nat'l. Bank of Louisville v Lustig (1996, CA5 La) 96 F3d 1554.) and invoke the inherent power of the court mentioned at the end of Rule 60 to set aside a judgment for fraud upon the court. Mr. Moxon's and Mr. Ingram's actions in hunting down, coercing, bribing, and suborning perjury from Mr. Cipriano as detailed in Exhibit A was certainly an "unconscionable plan or scheme. . . designed to improperly influence the court in its decision." The idea was to tie up Mr. Berry to the maximum extent possible, leaving him little time to work on a number of cases against RTC or other aspects of Scientology. Mr. Moxon's extrinsic fraud as an attorney is applicable to this case even if he did not formally appear before this court because it was the firm of Moxon and Kobrin which represented RTC. "While an attorney should represent his client with singular loyalty, such loyalty does not demand that he act dishonestly or fraudulently; on contrary, attorney's loyalty to court, as officer thereof, demands integrity and honesty in dealing with the court, and when he departs from such standard in conduct of case, he perpetrates fraud upon the court." Kupferman v Consolidated Research & Mfg. Corp. (1972, CA2 NY) 459 F2d 1072, 16 FR Serv 2d 160, 19 ALR Fed 747. "Since attorneys are officers of court, their allegedly dishonest conduct involving misrepresentation and perjury would constitute fraud on court. H. K. Porter Co. v Goodyear Tire & Rubber Co. (1976, CA6 Ohio) 536 F2d 1115, 191 USPQ 481, 21 FR Serv 2d 1429 I believe the court will agree that what Mr. Moxon, Mr. Ingram, and Mr. Rosen did in using Mr. Berry's sexual orientation to attack him (Exhibit A, paragraph 16,17, 18, 20, 50, 51, and especially 52, Cipriano's paraphrase, "Let's get Berry because he lives a gay lifestyle") is not only fraud, but evidence of a hate crime. Mr. Rosen even tried to intimidate Mr. Berry in the court room at trial. (Exhibit B.) Paragraph 75 of Exhibit A provides evidence of the subversion of Mr. Berry law firm partners. As is described in Mr. Berry's declaration (Exhibit C) the effect of the campaign against him (which goes well beyond the material in Exhibit A) seriously degraded his ability to defend me, the defendant in this case. Further, during the period before trial, some even before summary judgment was issued, my time and energy was massively diverted by unwarranted RTC funded lawsuits which I was forced to answer in Clearwater, Florida, and in Los Angeles and Riverside counties in California. As was pointed out in my (pro bono, cert. denied) appeal to the Supreme Court, (Exhibit D, top of page 22) there were major points I missed arguing in the copyright case, particularly in the matter of "transforming." "Here it is beyond dispute that Henson's open letter to the District Court 'adds something new, with a further purpose and different character,' altering NOTs 34 with 'new expression, meaning or message.' Petitioner embedded NOTs 34 in a letter openly protesting the injunction issued by the District Court in the Ward action and added information about court orders expressly forbidding Scientology to claim that the use of e- meters can heal. He did so to support his assertion that Scientology was engaged in illegal conduct. Petitioner's open letter thus *transforms* NOTs 34 from a set of directions for purportedly 'handling physical conditions' into a scathing attack on Scientology for allegedly practicing medicine without a license, defrauding its converts, and using the courts to harass and intimidate critics.' (Scientology proved my concerns were well founded by subsequently being indicted in Florida for the illegal practice of medicine in the gruesome death of Lisa McPherson, details at www.lisamcpherson.org. There are countless web sites about Scientology defrauding its converts, www.xenu.net being a prime one. And the attached exhibits detail the abuse of critics using the court system.) We will never know if the time and resources diverted by Scientology's attacks through the legal system and their extra legal activities would have resulted in a better defense if they had not been so diverted. My paid witness, Gerry Armstrong was prevented by a state court from testifying in my case even if this court had permitted me witnesses. (Exhibit E.) "For Corruption on part of officers of court, court was under duty to take whatever action might be appropriate to sustain its integrity and to undo any resulting harm or injustice." Chicago Title & Trust Co. v Fox Theatres Corp. (1960, SD NY) 182 F Supp 18, 3 FR Serv 2d 98. "'Fraud upon the court' which would warrant relief should embrace only that species of fraud which interferes with court's discharge of its judicial functions such as bribery or corruption of court, its officers or jury." Great Coastal Express, Inc. v International Brotherhood of Teamsters, etc. (1980, ED Va) 86 FRD 131, 110 BNA LRRM 2052, 29 FR Serv 2d 1181, remanded without op (CA4 Va) 639 F2d 780, later app (CA4 Va) 675 F2d 1349, 110 BNA LRRM 2058, 93 CCH LC P13447, 33 FR Serv 2d 1234, cert den 459 US 1128, 74 L Ed 2d 978, 103 S Ct 764, 112 BNA LRRM 2280, 95 CCH LC P 13933. Mr. Moxon's organized and expensive harassment of Mr. Berry as detailed by Mr. Cipriano were certainly corrupt, and go well beyond the standards permitted by any court for one attorney to treat another. Mr. Moxon's close relation with RTC does not preclude him from this standard because his name appears as counsel on numerous filings before this court. "While attorney should represent his client with singular loyalty, such loyalty does not demand that he act dishonestly or fraudulently; on the contrary, attorney's loyalty to court, as officer thereof, demands integrity and honesty in dealing with court, and when he departs from such standard in conduct of case, he perpetrates fraud upon court." Kupferman v Consolidated Research & Mfg. Corp. (1972, CA2 NY) 459 F2d 1072, 16 FR Serv 2d 160, 19 ALR Fed 747. "Since attorneys are officers of court, their allegedly dishonest conduct involving misrepresentation and perjury would constitute fraud on court." H. K. Porter Co. v Goodyear Tire & Rubber Co. (1976, CA6 Ohio) 536 F2d 1115, 191 USPQ 481, 21 FR Serv 2d 1429. While the *exposure* was exceptional, the harassment of Mr. Berry and myself by RTC are sadly not unusual events for people involved as critics of Scientology. Grady Ward has a Rule 60 motion pending before Judge Fogle on the matter of RTC interfering post settlement with his legal right of access to the courts and his ability to earn a living. I believe it was a goal of RTC to preclude him from making the monthly settlement payment to them, thus invoking the liquidated damage clause. RTC has through pickets, invasion of my client's work place, abusive bankrupty depositions, and the agency of their web site www.parishioners.org done what they could to prevent *me* from making a living. RTC has certainly encouraged more legal fees in my bankruptcy case than the judgment and legal fees combined. They are paying for judicially sanctioned punishment. All of these examples stem from written Scientology "fair game" and litigation policy which is applied "religiously" by the plaintiff RTC and its associated corporations. *************** "Never fear to hurt another in a just cause." -- L. Ron Hubbard, Creation of Human Ability (Code of Honor) [My source: Excalibur Revisited by Geoffrey C. Filbert] *************** PENALTIES FOR LOWER CONDITIONS [...] ENEMY SP Order. Fair game. May be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist. May be tricked, sued or lied to or destroyed. -- L. Ron Hubbard HCOPL 18 Oct 1967 *************** The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, will knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly. -- L. Ron Hubbard A Manual on the Dissemination of Material *************** Thousands of incidents similar to the attacks on Mr. Berry, Mr. Ward and me stretch over decades of time, and the geographic scope is worldwide. They range up to kidnappings (Roxanne Friend, Terry Finley) which were not prosecuted because the victims were in such bad psychological shape and reported events of being confined and no one talking to them for months were so insane sounding that they were not believed. I don't expect this court to sanction RTC/Scientology for its activities in other cases and places, but the law *does* recognize that a pattern of behavior is significant (i.e., RICO cases). The abuse of Mr. Berry was done according to policy. Not only was it done to policy, it was implemented by RTC's in house legal counsel, Mr. Moxon. The court may consider the abuse of Mr. Berry organized by RTC counsel Kendrick Moxon and Sandy Rosen an "extraordinary circumstance." If it so finds, the court could reconsider the RTC copyright judgment under FRCP 60(b)(6). "A FRCP 60(b)(6) motion will be granted only in extraordinary circumstances or under circumstances imposing extreme or undue hardship." Holland v Virginia Lee Co. (1999, WD Va) 188 FRD 241.) It certainly seems extraordinary to the defendant who was unable to find case law outside of Scientology cases pertaining to similar abuse of a defendant's lawyer. "The facts are as follows: On January 20, 1993, the special master awarded attorneys' fees [$2.9 million], first under the Lanham Act finding the case exceptional because the plaintiffs' [RTC] have abused the federal court system by using it, inter alia, to destroy their opponents, rather than to resolve an actual dispute over trademark law or any other legal matter.'" (Unpublished 1996 9th Circuit case RTC vs. Scott, 1996, full text at http://www.xenu.net/archive/CourtFiles/occf8.html) Eventually, the United States Justice system is going to have to stop supporting the abusive and criminal activities of Scientology. Other countries, France, England, Belgium, Spain, Germany and Greece have taken steps to curb the abuses, in the case of France, calling for the dissolution of Scientology there. (Exhibit F) The Belgiums also have taken steps in this direction. (Exhibit G) For the abuse detailed above and in the Exhibits, defendant petitions the Court under Rule 60(b)(3) and Rule 60(b)(6) to reverse the judgments in the copyright and contempt matters this court has ruled on. Defendant further petition the court for sanctions against RTC for all his scientology related legal expenses from the date of filing of this case. Even with sanctions, this would be a relief to RTC, because their policy requires them to continue to harass me through the courts and far less expensive than the millions the Erlich case cost them. If this motion is contested by RTC, or if, after due consideration, there is any doubt in the court's mind that fraud on the court was perpetrated by plaintiff, RTC and plaintiff's lawyer Kendirck Moxon, then I requests that an evidentiary hearing be held as provided under the FRCP. Mr. Berry has indicated his willingness to appear, Mr. Cipriano would be available, and the court has authority to force the appearance of Mr. Moxon, Ms Kobrin, and Mr. Rosen. There are two additional witnesses the court may wish to call which may be detailed later. To the extent there are statements of fact in this document, they are true to the best of my knowledge and are made under penalty of perjury under the laws of the United States. Respectfully submitted, H. Keith Henson