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The following is a court document that was filed by John Gregory Lambros in the federal class action lawsuit that he is prosecuting against those who torture him and others. Lambros is proceeding without the assistance of counsel.
In the class action, Lambros (on behalf of the class of U.S. citizens arrested in foreign countries) seeks a judicial determination that persons arrested in foreign countries on U.S. warrants are entitled to bail under the U.S. Constitution as if they had been arrested in the United States (or at least they should be entitled to a hearing on the issue). The U.S. District Court Judge that approved Lambros's arrest in Brazil set his bail at $50,000, but Lambros was never allowed a bail hearing, as guaranteed by the U.S. Constitution. Brazil was acting as an agent for the United States in Lambros's arrest, and should have had U.S. Constitutional protections with respect to his arrest, just as if he had been arrested in the United States. In any given case of an extraterritorial arrest, bail should be granted or denied based on the same factors as if the arrest occured at home (danger to the community, flight risk, etc.).
Here, Lambros sets forth the reasons that his class action should not be dismissed without a trial.
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
THIRD DIVISION
JOHN GREGORY LAMBROS, et al., *
Plaintiffs, *
vs. * Civil Action No. 3-95-836
DOUGLAS R. PETERSON, et al., * U.S. MAGISTRATE JUDGE
* JONATHAN LEBEDOFF
Defendants. * JURY TRIAL DEMANDED
* Title 28 U.S.C. Rules 38 & 39
PLAINTIFF'S et. al., TRAVERSE REPLY MOTION
TO
DEFENDANTS' MOTION TO DISMISS
I JOHN GREGORY LAMBROS, AND REPRESENTATIVE OF THE CLASS, declares
under penalty of perjury:
1. I am the Plaintiff in the above-entitled case. Plaintiff makes this declaration in opposition to defendants' MOTION TO DISMISS.
2. Defendants' claim in their Motion to Dismiss that they deny many of this Plaintiffs' et al. material facts contained within their original complaint. In reality, all facts within the complaint are true and correct and this Plaintiff et al., can prove all facts in support of their claim which would entitle relief. Therefore, this Plaintiff et al., DECLARATORY JUDGEMENT ACTION cannot be dismissed as enough information is outlined as to the elements of the claim. Conley vs. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
3. Defendants' state that Plaintiff et al., fail to state a claim under the standard of Rule 12(b)(6) Motion to dismiss. The Standard to dismiss under Rule 12(b)(6) tests the sufficiency of the pleadings. In deciding a 12(b)(6) motion, this Court must determine whether Plaintiff's complaint sets forth sufficient allegations to establish a claim for relief. This Court must accept all facts within Plaintiffs' et al. complaint as true and correct as they were sworn to under Title 28 U.S.C. §1746, thus "face value" and construe them in the light most favorable to this Plaintiff et al. Scheuer vs. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
4. Defendants' MEMORANDUM IN SUPPORT OF DEFENDANTS' DISMISSAL MOTION is not supported by an affidavit and facts stated within the memorandum are NOT TRUE, therefore, Assistant U.S. Attorney Mary Jo Madigan has perjured herself in front of this Court and a hearing is necessary to determine the true reason(s) and facts why Madigan perjured herself with possible sanctions imposed against Madigan.
5. Defendant did not answer Plaintiff et al., Declaratory Judgement Action as per Rule 5(d), FRCP. Therefore, under Rule 5(d), FRCP, Plaintiff et al. complaint is taken as admitted as are all facts contained within Plaintiff et al. complaint.
6. Plaintiff Lambros requested his DECLARATORY JUDGEMENT ACTION to proceed on behalf of himself and other persons similarly situated, thus requesting CLASS ACTION - CERTIFICATION OF CLASS.
7. BABY NEAL FOR AND BY KANTER vs. CASEY, 43 F.3d 48 (3rd Cir. 1994). at 56-57:
The commonality requirement will be satisfied if the named plaintiffs share
at least on question of fact or law with the grievances of the prospective
class ...Because the requirement may be satisfied by a single common issue,
it is easily met...Furthermore, class members can assert such a single
common complaint even if they have not all suffered actual injury; demon-
strating that all class members are subjected to the same harm will suffice...
* * * *
...[Rule 23](b)(2) classes have been certified in a legion of civil rights
cases where commonality findings were based primarily on the fact that defendant's conduct is central to the claim of all class members irrespec-
tive of their individual circumstances and the disparate effects of the conduct...
* * * *
Even where individual facts and circumstances do become important to the resolution, class treat-ment is not precluded. Classes can be certified
for certain particularized issues, and, under well-established principles
of modern case management, actions are frequently bifurcated.
With respect to typicality, even "relatively pronounced factual differences" do not preclude meeting the requirement where there is a strong similarity of legal theories. At 58: "Where an action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice can represent a class suffering other injuries, as long as all the injuries are shown to result from the practice."
In the above challenge to provisions of statutorily mandated child care services, "[t]he district court will...not need to make individual, case-by-case determinations in order to assess liability or order relief. Rather, the Court can fashion precise orders to address specific, system-wide deficiencies and then monitor compliance relative to those orders." (64) In Plaintiff et al. action, Brazil does not Constitutionally offer Bail or Bail hearings to Extradition Cases or drug related cases.
8. Plaintiff and Class members are poorly educated and not trained in law and have little access to lawyers thus favoring class certification. United States ex rel. Sero vs. Preiser, 506 F.2d 1115, 1126 (2nd Cir. 1974).
9. Plaintiff will request this court to appoint him counsel and has attached a motion requesting same.
10. Plaintiff will request this Court to appoint counsel for the absent class. E.G. Armstrong vs. O'Connell, 416 F. Supp. 1325, 1340-42 (E.D. Wisc. 1976).
11. Plaintiff is not sure if conflicts of interest exists between Plaintiff and Class Members which would preclude this Plaintiff from representing the Class thus a HEARING is needed to determine all issues. Martin vs. Middendorf, 420 F. Supp. 779, 781 n.l.
12. Plaintiff et al., also requested in paragraph #42 of their complaint, that this Court make an independent finding as to the unconstitutional discrimination that exists to all Brazilians that are arrested on unlawful traffic of narcotics and similiar drugs when they are denied a bail hearing and bail... Plaintiff et al., would request those individuals/class to be included within this Declaratory Judgement Action.
13. Defendants requested this Court to dismiss Plaintiffs' et al., Declaratory Judgement Action pursuant to Federal Rules of Civil Procedure, Rule 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) failure to state a claim upon which relief can be granted. In fact, this Plaintiff, et al., totally agree with the defendants that this Court has sole discretion in dismissing this Plaintiff et al., Declaratory Judgement Action but only after a HEARING is held to determine the facts set forth in Plaintiff et al., complaint and whether it is proper to appoint attorneys to represent Plaintiff and Class.
14. Plaintiff and Class PURPOSE in filing a DECLARATORY JUDGEMENT ACTION is due to the uncertainty with respect to rights, status, and other relations which where presented to this Court within the complaint which meet the standards as stated within the authoritative source of the AMERICAN JURISPRUDENCE, 22A AM Jur 2d, DECLARATORY JUDGEMENT, §7, PURPOSE.
15. Defendants claim on page one (1) are true except for lines 11 thru 14. In fact, Plaintiff et al., stated in there complaint page two (2) that the Declaratory Judgement Action was to determine if Defendants DENIED THE RIGHT TO BAIL AND BAIL HEARINGS AFTER JOINT-VENTURE ARREST BY UNITED STATES OFFICIALS AND BRAZILIAN OFFICIALS IN U.S. CONTRACT FACILITIES. THIS EXTENDS INTO THE PAST, TOO, AS TO WHETHER THIS RIGHT HAS ACCOMPLISHED CONSTITUTIONAL DAMAGE AS A DONE DEAL, AND IT EXTENDS INTO THE FUTURE, AS TO WHETHER SUCH DAMAGE CONTINUES TO BE ACCOMPLISHED BY DEFENDANTS PETERSON AND RENO.
16. Plaintiff Lambros did not state that his denial of bail led to the acts of TORTURE. The Defendants have not offered any evidence to the fact that the denial of bail led to Plaintiff Lambros' TORTURE. This would be a question for the Courts if it is proper. Plaintiff et al., are only dealing with the Brazilian Constitution article which denies Bail and Bail Hearings to all persons arrested in Brazil on Extradition charges and narcotic and similiar drug offenses after being arrested by U.S. and Brazilain Officials.
PLAINTIFF et al., RESPONSE TO FACTUAL BACRGROUND
17. Defendants reference documents in there memo with transcripts of the criminal file of UNITED STATES vs. LAMBROS, Criminal File No. 4-89-82(05). This Plaintiff et al., do not have a certified copy of the transcripts and will request copy of all transcripts within INTERROGATORIES. Therefore, this Plaintiff et al., can not state if the statements contained within Defendants MEMORANDUM are true or not until copy of all transcripts are reviewed.
18. Defendants claim on page two (2) that the government's preindictment recommendation was for a cash-surety bond of $150,000.00. In fact, this is not true, Plaintiff et al., stated on page six (6) of there Declaratory Judgement Action that the translated WARRANT FOR ARREST for John Gregory Lambros which states FIANCA ESTIPULADA PELO TRIBUNAL U.S. $50,000.00. This document was also stamped and excepted by the Brazilian Supreme Court as page 109, and was used to issue an arrest warrant by the Government of Brazil for Plaintiff Lambros, this document was offered as exhibit 3 with the Declaratory Judgement Action Complaint.
19. Defendants claim that they reviewed the criminal proceedings of Plaintiff and that Plaintiff litigated this issue several times in the District Court. In fact, this plaintiff does not recall one time that this plaintiff litigated the issue of THE RIGHT TO BAIL AND BAIL HEARING AFTER JOINT-VENTURE ARREST BY UNITED STATES OFFICIALS AND BRAZILIAN OFFICIALS IN BRAZIL. This Plaintiff et al., would request this Court to hold a HEARING and have the Defendants prove by offering transcripts as to such litigation in the United States and Brazil and to sanction the Defendants for lieing to this Court.
20. Plaintiff et al., state that all other statements made on page two (2) by the Defendants are not relevant to the issue of THE RIGHT TO BAIL AND BAIL HEARING...Plaintiff et al., are not swearing to the facts of same without copy of certified transcripts.
21. Plaintiff et al., state that all statements made on page three (3) are not relevant to the issue of THE RIGHT TO BAIL AND BAIL HEARING...Plaintiff et al., are not swearing to the facts of same without certified transcripts.
22. Defendants claim that the Doctrine of Res Judicata prevents Plaintiff et al., DECLARATORY JUDGEMENT ACTION from proceeding in a court with proper jurisdiction as Plaintiff et al., are attempting to relitigate the "ISSUE OF HIS CLAIMED DENIAL OF BAIL WHICH HE VIGOROUSLY LITIGATED IN PRIOR CRIMINAL ACTIONS." In fact, Defendants again claim on page five (5) that Plaintiff Lambros VIGOROUSLY LITIGATED A CLAIM OF DENIAL OF BAIL IN PRIOR CRIMINAL ACTION. Plaintiff Lambros believes the Defendants and U.S. Assistant Attorney Madigan must be suffering from stress or possible use of drugs as Plaintiff Lambros has never litigated the issue of THE RIGHT TO BAIL AND BAIL HEARING AFTER JOINTVENTURE ARREST BY UNITED STATES OFFICIALS AND BRAZILIAN OFFICIALS IN BRAZIL. Again Plaintiff Lambros and Class would request the Defendants to send Plaintiff Lambros a copy of the Docket sheet where this entry appears in either the United States or Brazil. Records received from the U.S. Department of State show no such entry. Plaintiff et al., request a hearing so Defendants can prove such records exist. Plaintiff et al., would request this Court to sanction Defendants for lieing to this Court and request the Ethics Committee to note same with U.S. Assistant Attorney Madigans' records and to take correct action.
23. Plaintiff et al., in fact agree with Defendants that Res Judicata (Latin for "thing decided") means that you cannot bring a lawsuit if there has already been a judgement on the merits by a Court of competent jurisdiction in a prior suit involving the same parties or their privies. Plaintiff et al., do agree with Defendants that this Court is the Court of COMPETENT JURISDICTION.
24. Plaintiff et al., after reviewing the PRISONERS' SELF-HELP LITIGATION MANUAL written by Daniel E. Manville, pages 207 thru 208 can not see how Res Judicata would prevent this case from proceeding to a hearing.
25. Plaintiff et al., reminds this Court and Defendants that the Honorable Judge D. Murphy would not allow other claims to be introduced into her Court. The issue of the U.S. Parole Violation Warrant was not allowed and she would not hear same.
26. Plaintiff et al., do not know if the hearings in front of the Supreme Court of Brazil were criminal or civil in nature, as Plaintiff Lambros was not allowed to attend, and would request a ruling on same as it may affect res judicata.
27. Defendants did enter into a contract, EXTRADITION TREATY, with Brazil thus every party to the contract commits himself to good-faith performance. Mills vs. Polar Molelcular Corp., 12 F3d 1170 (2nd Cir. 1993).
28. Plaintiff et al., are not able to locate within the Extradition Treaty between the United States and Brazil any type of contractual clause that Defendants entered into which purported to waive constitutional rights, as all contractual clauses purporting to waive constitutional rights must be clear and unambiguous. In Re Workers' Compensation Refund, 46 F.3d 813, (8th Cir. 1995). The denial of a bail hearing and bail is unconstitutional.
29. Defendants must remember that a bail bond is a contract between government, defendant, and his sureties, and is governed by general contract principles. U.S. vs. Figuerola, 58 F.3d 502 (9th Cir. 1995). Therefore, the Honorable Donald D. Alsop on May 17, 1989, was following the law as to the granting of Plaintiff Lambros' Eighth Amendment Right to a bail hearing and his fundamental due process right to have bail set at $50,000.00. Defendants must remember that the May 17, 1989, WARRANT FOR ARREST was stamped SECRET and this Plaintiff had no knowledge of such a warrant for his arrest until he was arrested on May 17, 1991.
30. Brazil and the Defendants conspired in denying Plaintiff et al., the right to bail and bail hearings as the Government is not entitled, as a matter of right, to hearings after narcotics defendant met conditions set by Court for pretrial release. U.S. vs. O'brien, 895 F.2d 810 (lst Cir. 1990).
31. Plaintiff et al., could not of had any type of proceedings in Brazil regarding denial of bail or bail hearing as the flawed Brazilian Constitution denies bail and bail hearings to all narcotic or similiar drug offenses and anyone arrested and being held on extradition charges. Plaintiff et al., did not and could not raise such a issue upon return to the United States, as it would be meritless. Therefore, no same cause of action exists. The Bail Reform Act requires release of persons facing trial under least restrictive conditions or combination of conditions that will reasonably assure appearance of person as required and safety of community; only in rare circumstances should release be denied, and doubts regarding propriety of release should be resolved in defendant's favor. U.S. vs. GEBRO, 948 F.2d 1118 (9th Cir. 1991); U.S. vs. ORTA, 760 F.2d 887 (8th Cir. 1985). Remember, Judge Alsop set bail for Plaintiff at $50.000 and the translated WARRANT FOR ARREST also stated $50,000 that was used to obtain and secure Plaintiff Lambros' arrest in Brazil by the Ministers of the Supreme Court in Brazil.
32. This Court should also request a HEARING so defendants may produce the Brazilian Court Transcript of the bail hearing that Plaintiff Lambros attended, as no such transcripts exist and no entry exists or appears in U.S. Department of State records. This Court must remember that a trial judge refusing release of those arrested and pending appeal must state in writing reasons for action taken. U.S. vs. FISHER, 55 F.3d 481 (lOth Cir. 1995).
33. The Extradition Treaty is a CONTRACT and the Defendants entered into an illegal contract with Brazil as Plaintiff et al., are not constitutionally entitled to bail or bail hearings if arrested on narcotic or similiar drug charges or Extradition Warrants in Brazil. Thus, the EXTRADITON TREATY is not valid for the extradition of narcotic and similiar drug charges or any other type of charge. Obligation of contract is law which binds parties to perform their agreement. NORFOLK AND WESTERN RY. CO. vs. AMERICAN TRAIN DISPATCHERS ASS'N., 499 U.S. 117, 113 LEd2d 95, 111 S.Ct. 1156 (1991).
34. For the above reasons res judicata does not bar this action for Plaintiff et al.
B. Plaintiff et al., RESPONSE TO DEFENDANTS ARGUMENT ON COLLATERAL ESTOPPEL.
35. Defendants claim that Collateral estoppel bars tis suit. In fact, Collateral estoppel is the principle that you cannot relitigate factual or legal issues which were actually litigated and decided in a prior suit involving Plaintiff et al. As stated earlier in this traverse response, Plaintiff has never litigated the issue of denial of bail and a bail hearing in Brazil. For example, the fact that you were convicted of a crime does not determine the legal and factual issue of whether the police used excessive force in arresting you; if you plead guilty to a crime without having lost a suppression motion, you are not barred from bringing a later civil suit claiming an illegal search. HARING vs. PROSISE, 462 US 306, 76 L Ed2d 595, 103 S.Ct. 2368 (1983); HERNANDEZ vs. CITY OF LOS ANGELES, 624 F.2d 935, 938 (9th Cir. 1980).
36. Defendants have not offered any affidavits to this Plaintiff et al., or the Court to prove collateral estoppel applies thus it is impossible to tell what was litigated and decided in the prior actions defendants rely on. Therefore, Collateral Estoppel CANNOT APPLY. RUSSELL vs. PLACE, 94 U.S. 606 (1876).
37. Defendants have the burden of proof as to what was litigated and decided as they are asserting collateral estoppel. HERNANDEZ vs. CITY OF LOS ANGELES, supra at 937.
38. Collateral estoppel cannot apply unless the prior judgement was based on a full and fair opportunity to litigate. Therefore, hearings are needed so defendants may prove all facts they allege as true and give Plaintiff and Class members opportunity to inspect all transcripts. ALLEN vs. McCURRY, 449 U.S. 90, 104. Circumstances that may violate this requirement are lack of competent representation. CERBONE vs. COUNTY OF WESTCHESTER, 508 F. Supp. 780 (S.D.N.Y. 1981). Lack of any representation at all, unfair limits on what issues could be pursued or what evidence could be presented, or failure to receive adequate notice of the hearing or motion upon which the court based its decision.
39 Collateral estoppel also cannot apply if an issue was previously decided but the ruling on that issue was not necessary to the decision in the prior case. - i.e., if it was "dicta." HYMAN vs. REGENSTEIN, 258 F.2d 502, 510-11 (5th Cir. 1958).
40. This Plaintiff et al., are not challenging their criminal convictions in this DECLARATORY JUDGEMENT ACTION.
41. Defendants claim on page seven (7) that Plaintiff Lambros claimed issues of bail denial. The fact remains that Plaintiff Lambros et al., have not reviewed the criminal transcripts of Plaintiff Lambros, but have found no entries within the U.S. Department of State transcripts or the rulings in U.S. vs. Lambros, 65 F.3d 698 (8th Cir. 1995), in which the Court remanded Plaintiff Lambros back for resentencing, regarding bail hearings or bail. Plaintiff et al., does not know of any entry on the docket sheet regarding bail or bail hearings.
42. Defendants have not reviewed Plaintiff Lambros' transcripts, as they would surely have read that Plaintiff Lambros testified that he was tortured by beatings, electric shock, gassing, forced interrogation, psysic driving, denial of due process, religious conversion by the Catholics, brainwashing, brain control implants, etc. at the Federal Police Station in Brasilia, Brazil, where Plaintiff Lambros was held with TOSCANINO who the Defendants and the U.S. Department of State are currently trying to cover-up. Plaintiff Lambros was also incarcerated at FUNAP Penitentiary. Toscanino was not incarcerated at FUNAP Penitentiary to the best of Plaintiff Lambros' knowledge.
43. Defendants claim that Plaintiff was extended a number of opportunities to litigate claims. In fact, Plaintiff Lambros was not allowed to litigate his claims as he was controlled by RADIO BRAIN IMPLANTS by Brazilian Officials (Plaintiff Lambros is being tortured and controlled by Brazilian Officials this minute due to RADIO BRAIN IMPLANTS that prevent Lambros from thinking in an educated logical manner) and denied access to a law library. Defendant should remember that Plaintiff Lambros' Attorney Charles Faulkner was not allowed to represent Plaintiff Lambros, due to Court ORDER, during his appeal to the Eighth Circuit Court of Appeals, due to his incompetence, that was proven by the Eighth Circuit Court of Appeals in remanding Plaintiff Lambros' sentence on the mandatory life sentence. What competent attorney, or Defendants, would not research the statutory sentence an individual was being charged and sentenced under unless it was to frame them? What competent attorney would not consult independent medical experts as to the evaluation of x-rays and calling an artifact "DUST" unless it was to cover-up government actions. Please feel free to review the writings of the world renown author and publisher of the PHOENIX LETTER, Dr. Antony Sutton, formerly of the Hoover Institute of War, Revolution and Peace, Stanford University and U.C.L.A., August and October 1995 PHOENIX LETTER as to the Department of Justice and Attorney Charles Faulkners' cover-up in the extraditon and brain control implants of Plaintiff Lambros. You may request free copy on the American Online Service, E-Mail:
BrazilByct@aol.com
44. Defendants claims on pages 8 thru 10 are not relevant to bail and
bail hearings, and Plaintiff et al., can not verify the fact of same
without certified copy of transcripts.
45. Defendants claim on page 11 that Plaintiff Lambros' allegations regarding torture via implants and alike do not square with the rest of the documents or with the pretrial record developed in front of three magistrates judges. Defendants state that Lambros' own letter to "Bill" Wilkins shows that he received medical attention and the "PROGNOSIS INDICATED NO DAMAGE." In fact, this information does not square with the U.S. Department of State information released to Plaintiff Lambros AFTER HIS TRIAL THUS PLAINTIFF LAMBROS WAS NOT ABLE TO USE THE INFORMATION DURING DURING HIS TRIAL. On page 265 and 266 of the U.S. Department of State Documents released where the notes of "Bill" Wilkins dated 10/13/91, which stated: 1) Sat. - Fight, Blacked out; 2) Tues. - Dr.: BELIEVES HE VERIFIED CONCUSSION; 3) Asked to have U.S. Embassy called (we were called thursday); 4) Jail said - no answer tuesday calling attorneys; 5) Escape (????) implicates jail officials (I believe this was in reference to the testifing of Louis Carlos Andreaci, U.S. h Brazilian informant and torture technician regarding an escape attempt by foreigners who may of been tortured at the Brazilian Federal Police Station Brasilia, Brazil. Andreaci was a U.S. and Brazilian Police/DEA informant at the time and this may be the reason the U.S. Attorneys Office in Minnesota would not subpoena Andreaci and interfered with Plaintiff Lambros' civil suit against Andreaci for over $15 Million Dollars to expose the use of torture and forced interrogation by Brazilian Federal Police in conjunction with U.S. government officials at the Brazilian Federal Police Station in Brasilia, Brazil. Andreaci assisted Brazilian Federal Police in the torture and forced interrogation of Plaintiff Lambros and Defendant Peterson and Attorney Charles Faulkner would not subpoena Andreaci to Plaintiff Lambros' criminal trial so he could be placed on the stand as to such actions); 6) Attorney phoned, not let speak with J.L., didn't tell attorney J.L. hurt; 7) Thursday - cell searched.
46. Other notes released by the U.S. Department of State that are in "Bill" Wilkins handwritting appear on page 260, 261, 262, 263, 264, 257, 243, 244, and a memorandum dated 1/27/92 and others clearly detail the torture to Plaintiff Lambros. Plaintiff Lambros does not know if this information is important regarding bail hearing and bail and would reserve the right to present other information and subpoena witnesses at the Courts request or if such information is necessary in preserving issues within this case. THIS COURT SHOULD UNDERSTAND THAT "BILL" WILKINS WAS IN CHARGE OF THE U.S. EMBASSY IN BRASILIA, BRAZIL, THE CAPITAL OF BRAZIL, DURING A PORTION OF THE TORTURE EVENTS. May I suggest that this Court subpoena "BILL" WILKINS for the hearing. It is also the hopes of this Plaintiff that the FOREIGN RELATIONS COMMITTEE, who JESSE HELMS is ranking member, will have information to contribute to this Court.
47. Defendants claims on page 11 are not relevant and can not be verified by Plaintiff et al., as Plaintiff et al., do not have certified copy of transcripts quoted from by the Defendants.
48. Defendants claim on page 12 that a proper extradition request was submitted to Brazil by Defendants. In fact, this is not true as explained in paragraph 27 thru 34. Also a sentence of mandatory life can not be legally imposed in Brazil thus the Defendants entered into a contract with Brazil knowing they where committing fraud, misrepresentation, stating a false claim and obstruction of justice in violation of 18 U.S.C. §1503 and 18 U.S.C. §1001. U.S. vs. WOODS, 6 F3d 692, all of which breached the Brazilian Constitution.
49. Defendants are trained in law and have reviewed the Extradition Treaty with Brazil and studied the Brazilian Constitution so as to safeguard the United States and its citizens. Therefore, the Defendants have willfully conspired to commit Fraud, misrepresentation, stating false claims and obstructing Justice to the Executive Branch of the United States Government and Brazil in filing for the extradition of Plaintiff et al. Plaintiff et al., demand an immediate injunction of all extradition proceedings of individuals from Brazil by the United States due to Narcotic and similiar drug offenses or any other offense, as the Extradition Treaty is not valid. Contract can be avoided if it was induced by fraud, duress or misrepresentation. GOLDMAN vs. BEQUAL, 19 F.3d 666 (D.C. Cir. 1994); IN RE ALLIED SUPERMARKETS, INC., 951 F.2d 718 (6th Cir. 1991); RESOLUTION TRUST CORP. vs. RUGGIERRO, 977 F.2d 309 (7th Cir. 1992).
50. For the above reasons collateral estoppel does not bar this action for Plaintiff et al.
PLAINTIFF et al., RESPONSE TO DEFENDANTS ARE IMMUNE FROM SUIT
51. Defendants claim that Defendants Reno and Peterson are immune
from suit. In fact, Defendant Reno, the Attorney General of the
United States of America, provides the means of enforcement of
federal law, furnishes legal opinions to the president and heads of
all federal departments. Defendant Reno has over her control the
bureau of U.S. Marshals Service, THE INTERNATIONAL CRIMINAL POLICE
ORGANIZATION - U.S. NATIONAL CENTRAL BUREAU, DEA and the Bureau of
Justice Statistics. Bureaus under Defendant Reno include the
Executive Office of Immigration Review, Foreign Claims Settlement
Commission of the United States and The National Drug Policy Board.
Defendant Reno thus is responsible in decisions affecting
international law as to the enforcement of TREATIES, which bind two
or more nations. As this Court knows, refusal to abide by a treaty
can be reason for WAR unless the treaty has been cancelled by consent
of the nations involved or otherwise annulled. If one
party refuses to perform a single stipulation of a treaty, the other
is released from its obligations. Occasionally the
length of time a treaty will be in effect is stated within the
document itself. Therefore, Defendant Reno has total knowledge and
access to information as to the U.S. Contract Incarceration
facilities that are used in Brazil and has authorized those
particular jails to be used to confine U.S. citizens. Defendant Reno
personally directed Plaintiff et al. confinement in all U.S.
authorized Contract incarceration facilities in Brazil under
offensive conditions that violate and prevent constitutional rights
to Plaintiff et al. PRICE vs. MOODY, 677 F.2d 676 (8th Cir.
1982)(prosecutor was not shielded by absolute prosectional immunity
in action alleging that the prosecutor personally directed the
petitioner's confinement in a particular jail under offensive
conditions).
52. Defendant Peterson is a long time employee of the Department of Justice who graduated from Harvard Law School, one of the finer legal schools in the world and holds the number two (2) position at the U.S. Attorney Office in Minnesota, thus a very capable individual with extensive knowledge of law and access to the extensive legal research that has been developed and provided to the Department of Justice by employees, Library of Congress and outside contractors. One such employee is the past U.S. Department of Justice staff assistant to the assistant U.S. Attorney General, 1973 to 1979 and Director of International Affairs, 1979 to 1981, MICHAEL ABBELL. Abbell has written extensively on EXTRADITION TREATY CONTRACTS and is known globally regarding same. Therefore, Defendant Petersons' actions would be governed under the ABA Standards for Criminal Justice 4-4.1 (1980), the ABA has specifically identified the duty of thorough investigation as an essential ethical obligation. The system, after all, is designed to free those whom the government cannot prove to be guilty beyond a reasonable doubt. The Courts have repeatedly addressed counsel's failure to investigate. Counsel has a CONSTITUTIONAL DUTY to make reasonable investigations or to make reasonable decisions that make particular investigation unnecessary. STRICKLAND vs. WASHINGTON, 466 U.S. 668, 691 (1984). The Court of Appeals has reversed convictions due to ineffective pretrial consultation, investigation and preperation. See e.g. BYRD vs. UNITED STATES, 614 A.2d 25 (D.C. 1992); SYKES vs. U.S., 585 A.2d 1335 (D.C. 1991); HARRIS vs. U.S.,441 A.2d 268 (D.C. 1982); ASBELL vs. U.S., 436 A.2d 804 (D.C. 1981). The SIXTH AMENDMENT REQUIRES investigation and preparation, not only to exonerate, but also to secure and protect the rights of the accused. Such constitutional rights are granted to the innocent and guilty alike, and failure to investigate and file appropriate motions is ineffective. See e.g. KIMMELMAN vs. MORRISON, 477 U.S. 365 (1986)(failure to investigate and present Fourth Amendment claim was constitutionally ineffective and prejudicated defendant). It was Defendant Petersons' obligation to the United States of America to find out as much as possible about every law that could affect the Extradion of Plaintiff Lambros and Class thus avoiding international disputes and maintaining equal justice to all. There is no reason that Defendant Petersons' actions should not mirror those of a Public Defender and this Plaintiff et al. will offer a copy of the CRIMINAL PRACTICE INSTITUTE TRIAL MANUAL that is produced by the Public Defender Service for the District of Columbia as a guide by the American Bar Association and District of Columbia as to the recommended procedures Public Defenders should follow in the representation of their clients if this Court so desires. This can only act as a guide as to the methodical procedures Defendant Peterson followed due to his long tenure and elevation among the ranks of Assistant U.S. Attorneys in the District of Minnesota office to number two (2) in command due to his Harvard Law School education. Therefore, Plaintiff et al., can only conclude that Defendant Peterson is not sheilded by absolute prosecutorial immunity in this action due to his personal directed filing of extradition proceedings against Plaintiff Lambros in Brazil when he had personal knowledge of Plaintiff Lambros' exact location in Rio de Janeiro, Brazil with the additional knowledge or access to the knowledge of the jail conditions at the U.S. Contracted jail in Rio de Janeiro, Brazil which included no law library, sleeping in filthy cells infested with roaches, body lice and bugs and that Plaintiff Lambros would have to pay for his own medical treatment, clean drinking water, eating utensils, soap, towels, clothing, bedding, a bed to sleep on, cleaning supplies, paper, pencil, pen, and cell conditions that at times exceeded seven (7) persons to a two (2) person cell that only provided a hole in the floor to discharge human waste. Also their is no telephone access or BAIL OR BAIL HEARINGS due to the FLAWED BRAZILIAN CONSTITUTION. Defendant Peterson deceived the the EXECUTIVE BRANCH OF THE U.S. GOVERNMENT by filing Plaintiff Lambros' ARREST WARRANT that was signed by Judge Alsop which entitled Plaintiff Lambros to BAIL of $50,000.00 in Brazil. Defendant Peterson willfully conspired to punish Plaintiff Lambros in confining him to the particular jails that denied constitutional rights and punishment.
53. Defendant Peterson is well aware of the fact that the Supreme Court has held that federal Courts could grant bail in extradition cases in "special circumstances", WRIGHT vs. HENKEL, 190 U.S. 40, 63, 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903). The Court's primary concern was that our Government be able to deliver the accused when the nation seeking extraditon had compiled with the extradition treaty Id. at 62, 23 S.Ct. at 786. Special circumstances have been found when a prisoner needed to be free to pursue his civil case(s), In re MITCHELL, 171 F. 289(S.D.N.Y. 1909), or when the prisoner was a juvenile and there were no suitable holding facilities for him. HU YAU-LEUNG vs. SOSCIA, 649 F.2d 914, 920 (2nd Cir.), cert. denied, 454 U.S. 971, 102 S.Ct. 519, 70 L.Ed. 2d 389(1981). This argument could carry forth to unconstitution holding facilities in Brazil when arrested in a joint venture arrest by U.S. and Brazilian Officials.
54. Defendants have waived sovereign immunity as U.S. Department of Justice employees, Terryl Anderson and Aubrey Sue, in a JOINT-VENTURE arrest with Brazilian officials, under the coordinated guidance of Defendant Peterson, arrested Plaintiff Lambros in Rio de Janeiro, Brazil. As the Bill of Rights has extraterritorial application to conduct abroad of federal agents directed against United States citizens. UNITED STATES vs. TOSCANINO, 500 F.2d 267 (1974).
55. Defendants are correct in stating Bivens-type Actions cannot be prosecuted against the United States Government. LASWELL vs. BROWN, 683 F.2d 261, 268 (8th Cir. 1982); PHELPS vs. U.S. FEDERAL GOVERNMENT, 15 F.3d 735 (8th Cir. 1994). In fact, Plaintiff et al., DID NOT FILE a Bivens-Type Action but filed a DECLARATORY JUDGEMENT ACTION, thus requesting the Court to guide Plaintiff et al.
56. Plaintiff et al., are untrained at law and have depended on the DECLARATORY JUDGEMENT ACTION to allow this Court to guide Plaintiff et al., to settle, and to afford relief from, the groww uncertainty and insecurity with respect to the constitutional right of a BAIL HEARING and BAIL and other relations. As this Court knows, it is the intent of the act to render declaratory judgement which might GUIDE all parties in their future conduct with each other, thereby relieving them from the RISK OF TAKING UNDIRECTED ACTIONS incident to their rights, which would jeopardize their interests or cause them damage or serious difficulty including the expending of unnecessary funds or imposition of civil or criminal sanctions.
57. This Court also has the option to consider a claim under Title 42 U.S.C. §1985(3) as it provides a remedy for CONSPIRACY to deprive, either directly or indirectly, any person or class of persons, of equal protection of the laws. The United States Supreme Court has narrowed this broad language and requires a plaintiff, in order to state a claim, to allege that the defendants entered into a conspiracy motivated "by some racial or PERHAPS OTHERWISE CLASS-BASED INVIDIOUSLY DISCRIMINATORY ANIMUS." GRIFFIN vs. BRECKENRIDGE, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971); WARE vs. BARR, 883 F. Supp. 654, 656. Defendants certainly fit within class-based invidiously discriminatory animus.
58. This Court may even direct Plaintiff et al., to the correct parties and procedure to follow so Bail Hearings and Bail may be provided in Brazil. One such option may be the use of the FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976, (hereinafter FSIA) 90 Stat. 2891, 28 U.S.C. §§ 1602-1611, which was adopted to eliminate the State Department's control over results in SOVEREIGN IMMUNITY CASES and to permit the judiciary to determine immunity solely as a matter of law. If this Court decides that Brazil should be replaced as the Defendants in this Case, Brazil would have the burden of demonstrating that the exceptions in the FSIA, §§ 1605 and 1607, do not apply. ARANGO vs. GUZMAN TRAVEL ADVISERS, 621 F.2d 1371, 1378 (5th Cir. 1980). The FSIA would be the sole basis for obtaining JURISDICTION over BRAZIL in United States Courts. ARGENTINE REPUBLIC vs. AMERADA HESS SHIPPING CORP., 109 S.Ct. 683, 688, 690 (1989). Considerations related to subject-matter jurisdiction and personal jurisdiction are merged under the FSIA. §1330(a) grants subject matter jurisdiction for "any nonjury civil action against a foreign state" in which the foreign state is not entitled to immunity. §1330(b) grants personal jurisdiction if the court has jurisdiction under §1330(a) and service of process has been made under §1608.
Brazil would be subject to jurisdiction if it has either implied or expressly waived its immunity. Once a waiver is made, it cannot be withdrawn except in a manner consistent with the terms of the waiver. §1605(a)(1).
Brazil's explicit waiver of immunity occurs when it waived immunity by TREATY or by contract with a private party. Brazil's implicit waiver occurred when it agreed to ARBITRATION with the United States, knowing that U.S. Courts can compel or enforce such arbitration, agreed that the law of the United States will govern the EXTRADITION TREATY CONTRACT and engaged in any activities enumerated in the FSIA. Sovereign immunity may also be waived by a failure to raise it as a defense in the first response pleading.
59. Article XVII, in the Brazil/United States of America Extraditon Treaty states that "no pecuniary claim, arising out of the arrest, detention, examination and surrender of fugitives under the terms of the present Treaty, shall be made by the requested State against the requesting State other than as specified in the second paragraph of this article and other than for the lodging, maintence, and board of the person being extradited prior to his surrender." Therefore, the United States of America would be liable for all claims.
60. Defendants are not immune from injunctive relief.
61. Plaintiff et al., as extradited persons, may raise whatever objections the rendering country (Brazil) might have in violation of the PRINCIPLE OF SPECIALTY as an objection to jurisdiction. See RAUSCER, 119 U.S. at 424, 7 S.Ct. at 243; U.S. vs. NAJOHN, 785 F.2d 1420, 1422 (9th Cir.)(per Curiam); U.S. vs. VERDUGO URQUIDEZ, 939 F.2d 1341, 1355 (9th Cir. 1991).
62. Both an overall treaty and a specific extraditon agreement are in fact contracts between nations. In neither case is the individual a party. The fact that the extraditon treaty relates to a class of individuals while a "contract of extraditon" relates to a particular individual is of no consequence because neither the treaty as a whole nor the individual extraditon agreement contains any provision conferring standing on any individual. Furthermore, there is no logical reasoning why the violation of an agreement relating to a particular individual should be litigable by that individual, while a particular violation of an agreement relating to a class of individuals should not be litigable by a member of the class when the violation concerns that class member. The SPECIALITY CASES permit an individual who is not a party to an agreement between the United States and a foreign nation to assert the right of that nation in our courts. We see no reason in logic or experience why the individual victim of our government's breach of other aspects of an extradition treaty should not be able to assert a signatory nation's right in our court as well. U.S. vs. VERDUGO-URQUIDEZ, 939 F.2d 1341, 1356 (9th Cir. 1991).
63. Defendants filed false claims to the Executive Branch of the United States Government, stating that Plaintiff et al., would receive all of their U.S. Constitutional Rights as to questions of treaty interpretation, clarification and implementation are functions necessarily carried out by the Executive Branch of the Government. GOVERNMENT OF JAMAICA vs. U.S., 770 F. Supp. 627, 631 (M.D. Fla. 1991).
64. Plaintiff et al., requests this Court to review the legality of the 150-year old extradition law as unconstitutional because it violates the seperation-of-power principle by allowing the secretary of state to review legal decisions by judges as it may affect the issue of a bail hearing and bail. On or about August 31, 1995, Washington, D.C., U.S. District Judge Royce C. Lamberth struck down the law. ANTHONY J. LoBUE & THOMAS KULEKOWSKIS vs. SECRETARY OF STATE WARREN CHRISTOPHER, (sorry I do not have a case cite).
65. Under the extraditon law, a federal judge or magistrate must decide whether the person accused of committing a crime in another country can legally be turned over to foreign authorities. The judge/magistrate must make three (3) findings. This Court should examine why the same procedure is not used in reverse before defendants file extradition papers to the executive branch for approval so as not to deny Plaintiff et al., their constitutional right to bail hearing and bail.
66. Plaintiff et al., requests this Court, to determine the correct legal procedure in informing class members and the possible class members in Brazil. Is Brazil obligated to print official notice in legal and local papers as to the current question of law that are before this court so class members may have imput.
67. Plaintiff et al., requests this court to take note that interstate commerce does not exist in Brazil as stated in this Plsintiff's extradition papers. Therefore, Defendants may of filed illegal extradition proceeding on Plaintiff et al., knowing that bail hearings and bail was not available and an opportunity to research at a law library. UNITED STATES vs. LOPEZ, ------------, 459 F.2d 949, 952, 953. (Effect on constitutionally of §401(a)(1) and §406 of Title II of the Comprehensive Drug Abuse Pre-vention and Control Act of 1970, 21 U.S.C. §831(a)(1) and §846. As Congress made certain findings and declarations which are set forth in § 101 of Title II of the Act, 21 U.S.C. §801. (A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nontheless have a submstantial and direct effect upon interstate commerce because ...) Brazil does not have interstate commerce laws.
A. Plaintiff et al., RESPONSE TO
DEFENDANTS
ARGUMENT REGARDING ATTORNEY GENERAL JANET RENO
68. Defendants claim that Defendant Attorney General Janet Reno is immune from suit. In fact Defendant Reno is in charge of the Department of Justice and is not exempt from the federal rules and will be held to the highest standards of the Bar. EEOC vs. WATERFRONT COMM'N OF NEW YORK HARBOR, 665 F. Supp. 197, 201 (S.D.N.Y. 1987). Defendant Reno has agreed to allow the Department of Justice to enter into the contractual EXTRADITION TREATY with Brazil and allowed Defendant Peterson to perform the obligations of contract law which binds parties to perform their agreement. NORFOLK AND WESTERN RY. CO. vs. AMERICAN TRAIN DISPATCHERS ASS'N., 499 U.S. 117, 113 L.Ed2d 95, 111 S.Ct. 1156 (1991). A party to a contract cannot be permitted to retain benefits recieved under contract and at the same time escape obligations imposed by contract, GRILLET vs. SEARS, ROEBUCK & CO., 927 F.2d 217 (5th Cir. 1991). Every party to a contract commits himself/herself to a good-faith performance, MILLS vs. POLAR MOLECULAR CORP., 12 F.3d 1170 (2nd Cir. 1993). Also in Corporation law, a notice to president of company is notice to company as matter of law, E.E.O.C. vs. G.K.G., 39 F.3d 740 (7th Cir. 1994). Therefore, Defendant Reno has ORDERED/ PERSONALLY DIRECTED Plaintiff et al., due to her authority, to be held in barbaric subhuman conditions within U.S. Contracted Jails after JOINT VENTURE ARREST, that have been inspected and approved by employees of the U.S. Department of Justice, DEA et al., and has approved the flawed Brazilian Constitution in not allowing bail hearings and bail thus directly ordering Plaintiff et al., to be mistreated due to her knowledge of the laws of Brazil and the U.S. Constitution which are denied when enforced by the U.S./Brazil Extraditon Treaty. Defendant Reno has the power not to allow extradition as she has the power to authorise extraditon. Defendant Reno is liable in her official capacity when she acts outside the scope of her authority. Brazil is outside her scope of authority. PRICE vs. OODY, 677 F.2d 676 (8th Cir. 1982) (Facts that prosecutor may have lacked statutory authority over Missouri Jail is not dispositive of civil rights claim if prosecutor ordered complaintant to be mistreated and if mistreatment occurred as a result of his order; thus, district court erred in holding that prosecutor was shielded by absolute prosecutorial immunity in action alleging that prosecutor personally directed the petitioner's confinement in a particular jail under offensive conditions. 42 U.S.C.A. §1983). Plaintiff et al., do not know of a U.S. Contracted Approved Jail in BRAZIL that meets U.S. Constitutional requirements or the acts of torture are not reported on a regular basis.
69. Plaintiff-et al., also includes all other information within this response as to the proof that Defendant Reno is not immune to suit.
B. Plaintiff et al., RESPONSE TO
DEFENDANTS
ARGUMENT REGARDING ASSISTANT U.S. ATTORNEY
DOUGLAS PETERSON
70. Defendants claim that Defendant Peterson is immune from suit.
In fact Defendant Peterson personally participated in and coordinated
the arrest and decision regarding Plaintiff Lambros' detention in
Brazil and treatment in the jails within Rio de Janeiro, Brazil and
Brasilia, Brazil as Defendant Peterson knew Plaintiff was living in
Rio de Janeiro, Brazil and arrested in Rio de Janeiro, Brazil and
would be transported to Brasilia, Brazil if he appealed his
extradition proceedings to the Supreme Court of Brazil.
71. Defendant Peterson signed a SWORN AFFIDAVIT on January 11, 1991, stating that Plaintiff Lambros "appears to be subject to extradition pursuant to the Extradition Treaty between the Government of Brazil and the United States." This affidavit was used by the Executive Branch of the U.S. Government and the Government of Brazil to ARREST Plaintiff Lambros.
72. Black's Law Dictionary, with Pronunciations, Sixth Edition, Centennial Edition (1891-1991) offers the following definition for the word APPEAR:
To be properly before a court; as a fact or matter of which it can
take notice. To be in evidence; to be proved. Coming into court by
a party to a suit, whether plaintiff or defendant.
73. Defendant Peterson, a government attorney is not exempt from the federal rules and is held to the highest standards of the Bar. EEOC vs. WATERFRONT COMM'N OF NEW YORK HARBOR, 665 F. Supp. 197, 201 (S.D.N.Y. 1987). The American Bar Association has specifically identified the duty of thorough investigations as an essential ethical obligation of attorneys. See American Bar Association Standards for Criminal Justice 4-4.1 (1980). The Sixth Amendment requires investigation and preparation, not only to exonerate, but also to secure and protect the rights of the accused. Such constitutional rights are granted to the innocent and guilty alike, and failure to investigate and file appropriate motions is ineffective. See e.g., KIMMELMAN vs. MORRISON, 477 U.S. 365 (1986)(failure to investigate and present Fourth Amendment claim was constitutionally ineffective and prejudiced defendant).
74. Defendant Peterson coordinated and was contacted directly or indirectly upon the arrest of Plaintiff Lambros by U.S. DEA Special Agent Terryl Anderson and DEA employee Aubrey Sue. Agent Anderson was a past Minnesota resident and employee of the DEA. DEA Anderson, Sue and Brazilian Officials arrested Plaintiff Lambros in a JOINT VENTURE ARREST in Rio de Janeiro, Brazil on May 17, 1991. Therefore, Defendant Peterson willfully conspired to personally direct Plaintiff Lambros' confinement in the U.S. Authorized jail, under offensive conditions, in Rio de Janeiro, Brazil, where Plaintiff Lambros was denied a Bail Hearing, Bail, mistreated as a result of Defendant Petersons' ORDER.
75. Defendant Peterson knew that he was exercising EXTRATERRITORIAL JURISDICTION, pursuant to TITLE 18 § 3042:
Section 3041 of this title shall apply in any country the United States exercises extraterritorial jurisdiction for the arrest and removal
therefrom to the United States of any citizen or national of the
United States who is a fugitive from justice charged with or convicted
of the commission of any offense against the United States . . .Such fugitive first mentioned may, by any officer or representative of
the United States vested with judicial authority in any country in
which the United States exercises extraterritorial jurisdiction and
agreeably to the usual mode of process against offender subject to
such jurisdiction, be arrested and detained or conditionally
released pursuant to section 3142 of this title, as the case may be,
pending the issuance of a warrant for his removal, which warrant the
principle officer or representative of the United States vested
with judicial authority in the country where the fugitive shall be
found shall seasonably issue, and the United States Marshal or
corresponding officer shall execute.such marshal or officer, when engaged in executing such warrant without
the jurisdiction of the court to which they are attached, shall have
all the powers of a marshal of the United States so far as such powers
are requisite for the prisoner's safekeeping and the execution
of the warrant.
This Court may wish to review UNITED STATES vs. REED, 639 F.2d 896, 901-902, (2 Cir. 1981) (Seizure of defendant pursuant to an arrest warrant issued with probable cause was "reasonable" for purposes of the Fourth Amendment, and custody obtained by execution of the Warrant was not invalidated because of alleged use of excessive force even though defendant might have a suit for damages against government agents involved, The existance of an extradition treaty provides an individual with certain procedural protections only when he is extradited). HATTAWAY vs. UNITED STATES, 304 F.2d 5, 10 (5th Cir. 1962)(see note 13 and page 10). Review of Title 18 §§ 3041, 3042, 3141 & 3142 of the BAIL REFORM ACT is necessary and must be applied. All release decisions have consitutional underpinnings in the Eighth Amendment's prohibition of excessive bail, see, e.g., STACK vs. BOYLE, 342 U.S. 1 (1951), and the Due Process Clause of the Fifth Amendment, see UNITED STATES vs. SALERNO, 481 U.S. 739 (1987). Therefore, Plaintiff et al., due to the flawed Brazilian Constitution and an invalid extradition treaty was being denied his Eighth Amendment Right to a Bail Hearing which is his fundamental due process right to have his eligibility for bail decided free from unreasonable individual determination or arbitrary statutory classification, and, second, once such a determination is made and bail has been set, Plaintiff et al. have a fundamental due process right not to be deprived of the opportunity to exercise the option to post bail and be released. AUGUSTUS vs. ROEMER, 771 F. Supp. 1458, 1465 (E.D. La. 1991).
76. This Court after review of Title 18 §3042, which states that bail hearings and bail is available in any country the United States exercises extraterritorial jurisdiction for the arrest and removal therefrom to the United States of any citizen or national of the U.S. who is a fugitive may deem it appropriate to expand Plaintiff et al., DECLARATORY JUDGEMENT ACTION to include additional class members of all extraditable persons that are included within the definition of Title 18 §3042 that have been denied bail hearings and bail on a GLOBAL BASIS.
77. Defendant Peterson is not immune to suit as he ordered Plaintiff Lambros to be arrested in Rio de Janeiro, Brazil, thus not shielded by absolute prosectorial immunity, and held in the only U.S. authorized jail under offensive conditions and willfully knowing that Plaintiff Lambros would be denied his U.S. and Brazilian Constitutional Rights. PRICE vs. MOODY, 677 F.2d 676 (8th Cir. 1982).
LIST OF DOCUMENTS AVAILABLE TO THIS COURT
THAT WHERE PRODUCED BY THE U.S. STATE
DEPARTMENT PURSUANT TO A JUDICIAL ORDER
BY JUDGE DIANA MURPHY IN THE CRIMINAL
TRIAL OF PLAINTIFF LAMBROS #4-89-82
277 PAGES TOTAL
A. Pages 24 thru 30, American Consulate General John Lowell,
5/17/91, arrest questionaire. Please note on page 25, 10. STATUS OF
CASE: ... bail...
B. Page 45, Letter from Consulate General John A. Lowell to Plaintiff Lambros. "On my visit on May 24, l991...At that occasion you also requested that copies of the indictment in English and Portuguese be provided to Isaias Pereira Cabral. The Embassy legal advisor informed me that the American Embassy does not provide such copies. However, any lawyer assisting you will be able to obtain copies directly from the Brazilian Supreme Court in Brasilia or from the Federal Court in Rio de Janeiro prior to your hearing. The letter was dated May 29, 1991.
C. Page 46, hand written copy of case work sheet: "Conoff called Am Embassy Brasilia and legal advisor advised Embassy does not provide copies of the indictment. Message passed on to Dr. Moise's.
D. Page 49, Consulate General John A. Lowell, letter to Regional Police officer on June 10, 1991, regarding visiting of Plaintiff Lambros by Plaintiff Lambros father and brother. John William Lambros and Steven John Lambros.
E. Page 51, Consulate General John A. Lowell, letter to Dale Harbour, dated June 26, l991. "Brazilian criminal law concedes certain privileges to any prisoner with a bachelor's degree, improving life in a severely overcrowded prison facility. Therefore, I would like to request you to confirm the above information and if possible, send us a copy of his degree so we can forward it to the Brazilian prison authorities.
F. Page 53, Consulate General John A. Lowell, letter to John W. Lambros, father of Plaintiff Lambros, dated July 1, 1991. 3, ... If it can be shown that John has a college degree, Brazilian Law will allow him to be granted extra privileges which will improve his situation.
G. Page 123, unclassified teletype transmission that appears to be dated May 9, 1992, ...As arranged by the Embassy, Mr. Lambros was visited by a Greek Priest. (Please note that Padre Emmanouil Sofoulis was given a copy of the Arrest Warrant of Plaintiff Lambros by Lambros and the Chief of the Civil Police at FUNAP Penitentiary tried to steal it from him thus obstructing justice. FUNAP Penitentiary is in Brasilia, Brazil)
H. Page 236 & 237, notes of D. Barrass, U.S. Embassy Consul person Brasilia, Brazil that where taken when she interviewed Plaintiff Lambros on 4/16/92. Page 237, TREATY.
I. Page 238, TO FILE OF JOHN LAMBROS, 4/3/92, from consular section D. Barrass: Lambros called embassy 4/3/92, requested copy of extradition treaty and explaination of function of division of Itanaxity (spelling), DENIED.
J. Page 257, Notes of Bill Wilkins, consular person U.S. Embassy Brasilia, Brazil, dated 11/29/91: ... Wants to talk to Paulo Rollo ... Wants to talk to father ... NOTE SENT TO ROLLO ON 11/29/91. (Paulo Rollo is the head legal advisor for the U.S. Embassies in Brazil and never would visit Plaintiff Lambros).
K. Page 267, Notes by Bill Wilkins, consular person U.S. Embassy Brasilia, Brazil, dated 8/19/91: Title 21 §841(b)(ii) 2 priors "life without release...Anyone here entitled to Constitution ...Death will occur sometime in that sentence...Death Penalty Information Center.
78. This Court should note that Plaintiff Lambros submitted INTERROGATORIES BY PLAINTIFF - REQUESTING IDENTIFICATION OF DOCUNENTS AND PRODUCTION UNDER RULE 34 & 33 to each Defendant on December 14, 1995. Copy was also served on the Ambassador of BRAZIL FOR THE U.S.A via U.S. Certified Mail No. P-386-225-136.
CONCLUSION
79. For the foregoing reasons Plaintiff Lambros et al., prays
that this DECLARATORY JUDGEMENT ACTION will proceed in an orderly
fashion. Plaintiff et al., would appreciate that Plaintiff Lambros is
acting in a Pro Se status under the control of BRAIN CONTROL IMPLANTS
and requests appointment of counsel as the merits contained within
this case are valid. Therefore, Defendants MOTION TO DISMISS dated
November 30, 1995 should be DISMISSED.
I DECLARE UNDER PENALTY OF PURJURY THAT THE FOREGOING IS TRUE AND CORRECT AS PER TITLE 28 U.S.C.A. §1746 ON THIS 25TH DAY OF DECEMBER, 1995.
Dated: December 25,1995
Respectfully submitted
[signed]
John Gregory Lambros, Pro Se
Reg. No. 00436-124
U.S.P. Leavenworth
P.O. Box 1000
Leavenworth, Kansas 66048-1000
CERTIFICATE OF SERVICE
I hereby state under the penalty of perjury that a true and correct copy of JOHN GREGORY LAMBROS, et al., vs. DOUGLAS R. PETERSON, et al., CIVIL ACTION NO. 3-95-836, PLAINTIFF'S et. al., TRAVERSE REPLY MOTION TO DEFENDANTS' MOTION TO DISMISS, 35 pages, dated December 25, 1995, to be served by first class mail, this 26th day of December, 1995, to the following:
1. Mary Jo Madigan Assistant U.S. Attorney one copy 234 U.S. Courthouse 110 South Fourth Street Minneapolis, Minnesota 55401 2. Clerk of the Court
United States District Court one (1) original & District of Minnesota one (1) copy Room 708, Federal Building 316 North Robert Street U.S. CERTIFIED MAIL NO. St. Paul, Minnesota 55101-1460 P-386-225-126 3. Ambassador of Brazil for the U.S.A. and the Ministers of the Supreme Court of the Federative Republic of Brazil 3006 Massachusetts Avenue N.W. Washington, D.C. 20008 One (1) copy via U.S. Certified Mail No. P-386-225-127 4. Attorney Vernon Dale McNamee Ruy Ludolf Ribeiro Ave. Erasmo Braga, 277 ONE (1) COPY Groupos 608/612 Rio de Janeiro, R.J. 20020 BRAZIL 5. UNPROOFED COPIES DUE TO OCR PROGRAM SENT TO THE FOLLOWING AS TIME PERMITS FOR REVIEW AND PUBLIC EXPOSURE TO CLASS MEMBERS: (Web Sites) a. Universidade Federal do Rio de Janeiro, Brazil guarani.cos.ufrh.br:8000/home.html b. University of Sao Paulo, Brazil www.usp.br/eindex.html c. Universidad de Guadalajara, Mexico: www.udg.mx/ d. Rio de Janeiro Stock Exchange: http://www.embrat nfoserv/bvrj
Dated: December 26, 1995
[signed]
John Gregory Lambros
P.O. Box 1000
Levenworth, Kansas 66048-1000
The following is the cover letter that accompanied the above pleading when it was filed in Court.
December 26, 1995
John Gregory Lambros
Reg. No. 00436-124
U.S.P. Leavenworth
P.O. Box 1000
Leavenworth, Kansas 66048-1000
U.S. CERTIFIED MAIL NO. P-386-225-126
Clerk of the Court
United States District Court
District of Minnesota
Room 708, Federal Building
316 North Robert Street
St. Paul, Minnesota 55101-1460
RE: CIVIL ACTION NO. 3-95-836, LAMBROS et al., vs. PETERSON et al.
Dear Clerk:
Please file the enclosed one (1) original and one (1) copy of "PLAINTIFF'S et al., TRAVERSE REPLY MOTION TO DEFENDANTS' MOTION TO DISMISS".
Copy of same has been served on defendants attorney as per the attached Certificate of Service.
Thanking you in advance for you continued support.
Sincerely
[signed]
John Gregory Lambros
c: Attorneys
Human Rights GroupsInternet release
Greek Church
Lambros family
Foreign Relations Committee, Attn: Jesse Helms & Nancy L. Kassebaum
File
The
address for the Boycott Brazil homepage is:
For more information write (snail mail) JOHN GREGORY LAMBROS directly at:JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
USATHANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.