September 4, 1999, Plaintiff Lambros' motion "PLAINTIFF LAMBROS' REQUEST FOR SANCTIONS AGAINST DEFENDANTS ATTORNEYS UNDER A COMBINATION OF RULE 11 AND SECTION 1927," in LAMBROS vs.FAULKNER, Civil No. 98-1621. Total of eleven (11) pages including Certificate of Service page. NO EXHIBITS SCANNED.
CERTIFICATE OF SERVICE
I hereby state under the penalty of perjury that a true and correct copy of the attached:
a. PLAINTIFF LAMBROS' REQUEST FOR SANCTIONS AGAINST DEFENDANTS ATTORNEYS UNDER A COMBINATION OF RULE 11 AND SECTION 1927
was served the 7th day of September, 1999, to the following:
1. CLERK OF THE COURT
U.S. DISTRICT COURT
DISTRICT OF MINNESOTA
Warren E. Burger Federal Building
316 North Robert Street
St. Paul, Minnesota 55101-1460
One original and two copies
U.S. CERTIFIED MAIL NO. Z-233-380-343
2. Attorney Donna Rae Johnson
Attorney Deborah Ellis
700 St. Paul Building
6 West Fifth Street
St. Paul, Minnesota 55101
3. INTERNET RELEASE TO BOYCOTT BRAZIL SUPPORTERS AND HUMAN RIGHTS GROUPS GLOBALLY.
JOHN GREGORY LAMBROS, Pro Se
Reg. No. 00436-124
PO Box 1000
Leavenworth, Kansas 66048-1000, USA
End of Certificate of Service
JOHN GREGORY LAMBROS
ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER
ATTORNEY SHEILA REGAN FAULKNER
FAULKNER & FAULKNER
JOHN & JANE DOE'S
CIVIL CASE NO.
COMES NOW, JOHN GREGORY LAMBROS, Plaintiff, Pro se, requesting this Court to award sanctions to Plaintiff and the Court under Title 28 U.S.C. Section 1927 and the Federal Rules of Civil Procedure, Rule 11, as to Defendants August 30, 1999, filings: a) Defendants' Objections to Report and Recommendations; b) Affidavit of Donna Rae Johnson; c) Affidavit of Shelia Regan Faulkner; d) Affidavit of Dan Scott; e) Affidavit of Marc Diersen; f) Affidavit of Colia Ceisel.
STATEMENT OF LAW:
1 FEDERAL RULE OF CIVIL PROCEDURE 11: Rule 11 applies only to paper filings and enables a court to order that sanctions be paid to the U.S. Treasury. A lawyer may violate the objective criteria of Rule 11 in three respects: (1) by failing to make a reasonable inquiry into the FACTS; (2) by failing to make a REASONABLE INQUIRY INTO THE LAW; and failing to draw the reasonable CONCLUSIONS of a "competent" attorney See, JACKSON vs. LAW FIRM
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OF O'HARA, RUBERG, OSBORNE AND TAYLOR, 875 F.2d 1224 (6th Cir. 1989). Alter natively stated, sanctions will lie where: (1) there was no reasonable inquiry into the basis of a pleading or document; (2) there is no chance of success under existing precedent; and (3) there is no reasonable argument to extend, modify or reverse the controlling law. See, EHRLICH vs. HOWE, 848 F.Supp. 482 (S.D.N.Y. 1994). The improper "purpose" provision, "to harass or cause unnecessary delay or needless increase in the cost of litigation," now in RULE 11(b)(1), provides a separate, independent basis for sanctions. See, U.S. vs. RAMIREZ, 162 F.R.D. 253 (D.Puerto Rico 1995). DUTY OF CANDOR, FALSE STATEMENTS in writing are, of course, subject to sanctions, See, IN RE KELLY, 808 F.2d 549 (7th Cir. 1986), as are MISLEADING OMISSIONS OF MATERIAL FACT. See, IN RE RONCO, INC., 838 F.2d 212 (7th Cir. 1988) Courts have found support for a duty of candor in the ABA's Model Rule of Professional Conduct, 3.3. "A court has a right to expect that counsel will state the controlling law fairly and fully; indeed, unless that is done the court cannot perform its tasks properly. A LAWYER MUST NOT MISSTATE THE LAW, fail to disclose adverse authority (not disclosed by his opponent), or omit facts critical to the rule of law espoused." See, 103 F.R.D. at 127. Liability can exist for a frivolous motion to DISMISS or strike. See, TREADWELL vs. KENNEDY, 656 F.Supp. 442 (N.D.Ill. 1987).
2. TITLE 28 U.S.C., SECTION 1927: Section 1927 provides that any attorney who "so multiplies the proceedings in any case unreasonably and VEX ATIOUSLY may be required by the court to satisfy personally the excess costs, expenses and attorneys' fees reasonably incurred because of such conduct." Consequently, many courts have relied on Rule 11 or a combination of Rule 11 and Section 1927. See, IN RE GINTHER, 791 F.2d 1151 (5th Cir. 1986). A finding of an attorney's BAD FAITH is a predicate to liability under Section 1927. Subjective BAD FAITH, however, is not required. Bad faith may include "an
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intentional departure from proper conduct," an intent to harass, dilatory tactics, or "a reckless disregard of the duty owed by counsel to the court," see, NEW ALASKA DEV. CORP. vs. GUETSCHOW, 869 F.2d 1298 (9th Cir. 1989), such as ignoring a court order. Therefore, attorneys have been sanctioned under Section 1927 for asserting FRIVOLOUS, BAD FAITH DEFENSES, see, SMIGA vs. DEAN WITTER REYNOLDS, INC., 766 F.2d 698 (2nd Cir. 1985), cert. denied, 89 L.Ed.2d 607 (1986), or for abusing the court's process. All Section 1927 Sanctions are made to opposing party.
STATEMENT OF FACTS:
DEFENDANTS' OBJECTIONS TO REPORT AND RECOMMENDATION:
3. Page 6: Defendants state that Plaintiff's valid conviction precludes a suit for damages and quotes HECK vs. HUMPHREY, 512 U.S. 477 (1994).
4. HECK held that a plaintiff cannot recover damages for any harm "caused by actions whose unlawfulness would render a conviction or sentence INVALID" unless the plaintiff proves that the conviction or sentence has been reversed, expunged, declared invalid by a tribunal authorized to do so, or called into question by the issuance of a federal writ of habeas corpus. Until then, the civil action is not cognizable under Section 1983, the court said. See, quoting, MARTINEZ vs. ALBUQUERQUE, N.M., 10th Cir., No. 98-2235, 06/15/99, CRIMINAL LAW REPORTER, Vol. 65, No. 13, 06/30/99, pages 412-413. (The Tenth Circuit stated, "[A] finding that the police officer utilized excessive force to arrest Martinez would in no manner demonstrate the invalidity of Martinez' state court conviction for resisting arrest under these circumstances.)
5. Plaintiff is not requesting the Court or defendants to invalidate his conviction, only payment to repair damages/injuries caused to Plaintiff, by Defendants LEGAL MALPRACTICE. Theories of law based on THE DOCTRINE OF SPECIALTY, STANDING TO RAISE DOCTRINE OF SPECIALTY, and THE DUAL CRIMINALITY DOCTRINE as to
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Plaintiff's extradition from Brazil to the United States ARE NOT A NECESSARY ELEMENT OF THE CRIMES THE GRAND JURY INDICTED PLAINTIFF ON. Therefore, Plaintiff would not necessarily have to negate the elements of the crimes he was indicted on to prevail.
6. Page 6: Defendants state, "[T]hese claims are untenable in view of the evidence presented against Mr. Lambros at trial AS EVIDENCED IN HIS TRIAL TRANSCRIPTS, . . .
7. Defendants statement, AS EVIDENCED IN HIS TRIAL TRANSCRIPT is a BLATANT LIE by Defendants. Defendants stated within there AFFIDAVIT OF DONNA RAE JOHNSON IN SUPPORT OF MOTION TO DISMISS OR SUMMARY JUDGEMENT AND OPPOSING REPORT AND RECOMMENDATION, dated August 27, 1999, paragraph two (2):
That, although we have obtained the U.S. vs. LAMBROS files from Colia Ceisel, who represented Plaintiff during his appeal, WE HAVE BEEN W ABLE TO LOCATE THE SEVEN (7) VOLUMES OF THE TRIAL TRANSCRIPTS TO DATE. Neither the Eighth Circuit Administrator, the Clerk of District Court, nor attorney Ceisel can locate the transcripts.
8. Defendants have never reviewed Plaintiff's transcripts so they can not possibly make a statement to this Court saying, "AS EVIDENCED IN HIS TRIAL TRANSCRIPTS."
9. On JUNE 22, 1999, U.S. District Court Judge ROBERT G. RENNER, ORDERED, Plaintiff's request to the Clerk of the Court to TRANSFER THE FULL RECORD IN PETITIONERS CASE TO THE EIGHTH CIRCUIT COURT OF APPEALS, moot. Stating, "As a matter of practice in appeals involving pro se litigants, on the filing of a notice of appeal the Clerk of the District Court TRANSFERS THE ENTIRE RECORD, INCLUDING THE CRIMINAL FILE IN THE CASE OF PETITION PURSUANT TO 28 USC §2255, TO THE EIGHTH CIRCUIT. Petitioner filed his notice of appeal on April 30, 1999, and this Court granted him a certificate of appealability on May 18, 1999." Therefore, as per Judge Renners' ORDER, Plaintiff's TRANSCRIPTS
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ARE WITHIN THE CONTROL OF THE CLERK FOR THE EIGHTH CIRCUIT COURT OF APPEALS. Another BLATANT LIE by the Defendants in stating, "WE ARE UNABLE TO LOCATE THE SEVEN (7) VOLUMES OF TRIAL TRANSCRIPTS TO DATE." See, U.S. vs. LAMBROS, District of Minnesota, CRIMINAL File No. 4-89-82(05), Civil File No. 99-28 (RGR), ORDER, Filed June 22, 1999.
10. Page 8: Defendants state within CLAIM I, "With respect to Claim I, plaintiff asserts that Charles W. Faulkner committed malpractice by forwarding a letter from the prosecutor that ERRONEOUSLY STATED THE PENALTIES WHICH PLAINTIFF WAS FACING. Mr. Faulkner had a duty to communicate plea offer to his client. . . . The fact that the prosecutor's position was determined to be wrong did not make Mr. Faulkner's act of transmitting the information negligent..."
11. Within the Affidavit of Sheila Regan Faulkner in support of MOTION OF SUMMARY JUDGEMENT, dated August 28, 1999, Defendant S.R. Faulkner attached an EXHIBIT entitled, "APPOINTMENT OF AND AUTHORITY TO PAY COURT APPOINTED COUNSEL in the amount of $16,560.00, dated February 17, 1994, VOUCHER NO. 0380221. PLEASE NOTE 16A within the voucher which states:
DOES THE ATTORNEY HAVE THE PREEXISTING AGREEMENT (see instructions) WITH A CORPORATION, INCLUDING A PROFESSIONAL CORPORATION? YES.
16C. EMPLOYER I.D. NO.: 41-153-4878
16D. NAME & MAILING ADDRESS OF LAW FIRM
FAULKNER & FAULKNER
SUITE 500 I.D. 41-153-4878
701 Fourth Avenue So.
Minneapolis, Minnesota 55415
12. VOUCHER NO. 0380221, further stated and SPECIFICALLY CHECKED by Defendant Charles Faulkner within ITEM 21:
HAS THE PERSON REPRESENTED PAID ANY MONEY TO YOU, OR TO YOUR KNOWLEDGE TO ANYONE ELSE, IN CONNECTION WITH THE MATTER FOR WHICH YOU WERE APPOINTED TO PROVIDE REPRESENTATION? NO
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13. Defendant Charles Faulkner FALSIFIED, CONCEALED, and COVERED UP MATERIAL FACT as to Plaintiff Lambros and his family paying monies to Attorney Jeff Orren, National Legal Professional Associates, Doctor Creqi, Dr. Minette, and others during representation of Plaintiff Lambros. Court records support the above. Defendant Charles Faulkner was in violation of Title 18 U.S.C. §1001.
14. Attached to Defendant Charles Faulkner's APPOINTMENT OF AND AUTHORITY TO PAY COURT APPOINTED COUNSEL is the attachment entitled, "JUSTIFICATION STATEMENT U.S. vs. LAMBROS." Within the justification statement in which Defendant Faulkner states that he is "DESERVING OF AUTHORIZATION TO EXCEED THE STATUTORY LIMITS SET FORTH IN 18 U.S.C. 53006A FOR THE FOLLOWING REASONS. Defendant Charles Faulkner states the following:
a. extended nature of pretrial hearings regarding his extradition from Brazil, allegations of torture, . . . and SENTENCING ISSUES EXPOSING HIM TO LIFE WITHOUT PAROLE.
b. He further claimed that the actions of the Brazilian Supreme Judicial Tribunal PRECLUDED United States Courts from acting against him for double jeopardy and SPECIALTY DOCTRINE REASONS.
c. The government provided a larger than usual volume of documents (OVER 1500 PAGES) IN DISCOVERY INCLUDING COMPLEX FINANCIAL RECORDS.
d. Plaintiff Lambros states that he WAS NEVER GIVEN COPY OR WAS ABLE TO READ ANY "COMPLEX FINANCIAL RECORDS."
e. Following his conviction the client required more time and effort than usual due to the POTENTIAL LIFE SENTENCE WITHOUT PAROLE. COUNSEL SPENT UNUSUAL TIME ON THE SENTENCING MEMORANDUM AND RESEARCH OF THE ISSUES BEARING ON THE POTENTIAL SENTENCE.
15. It is very, very, very, obvious that Defendant Charles Faulkner was not even capable of researching Title 21 U.S.C. §§ 846 & 841. See, U.S. vs. LAMBROS, 65 F.3d 698 (8th Cir. 1995), thus negligent.
16. Page 9 & 10, CLAIM II: Defendants ADMIT that Plaintiff and his family are working with NATIONAL LEGAL PROFESSIONAL ASSOCIATES. This
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supports Plaintiff Lambros statements as to Defendant Charles Faulkner lying and committing criminal acts in violation of Title 18 USC §1001, within his VOUCHER NO. 0380221. See, paragraphs 12 thru 13.
17. Also Defendants state within CLAIM II, page 10, "According to Mr. Faulkner, he opined that the work which Mr. Lambros or his family requested from National Legal Professional Associates on the issue of "SPECIALTY DOCTRINE" did not provide a sound basis for which to request additional monies from the court. Mr. Faulkner's strategic decision not to request funds for National Legal Professional Associates assistance is presumptively sound."
18. Plaintiff has explained to Defendants a number of times within the filing of this case that the DOCTRINE OF SPEClALTY, STANDING TO RAISE DOCTRINE OF SPECIALTY, and THE DUAL CRIMINALITY DOCTRINE PREVENTED Plaintiff Lambros from being placed on trial on Counts 5, 6, & 8. See, CLAIM XIII within Plaintiff's AMENDED COMPLAINT, pages 17 and 18. Dated February 17, 1999. Also see the definitions offered on pages 23, 24, & 25.
19. The UNITED STATES SUPREME COURT also supports Plaintiff's theory and argument as to the DOCTRINE OF SPECIALTY not allowing Plaintiff to be placed on trial nor sentenced on Counts 5, 6, & 8. See, WASHINGTON vs. MARTIN SHAW PANG No. 97-688, U.S. Supreme Court, December 15, 1997, Petition for writ of certiorari to the Supreme Court of Washington DENIED. Same case below, 132 Wash 2d 852, 940 P2d 1293. EXHIBIT A. (PANG WAS EXTRADITED FROM BRAZIL)
20. The Washington State Supreme Court stated in there ruling in the international extradition of PANG from BRAZIL, as to the APPLICATION OF THE DOCTRINE OF SPECIALTY:
Defendant, [PANG] arrested in Brazil for offenses committed in Washington State, has standing to object to violation by state of terms of order of extradition issued by BRAZILIAN COURT; record shows, contrary to state's arguments, that Brazil has neither waived any objection it could have made to
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Washington prosecution of defendant for first-degree murder, contrary to specific terms of extradition order, nor consented to such prosecution; DOCTRINE OF SPECIALTY in international extradition law is incorporated into extradition treaty between United States and BRAZIL both by treaty's language and by implication under U.S. vs. RAUSHCHER, 119 U.S. 407 (1886), and prevents Washington from prosecuting defendant for crimes specifically excluded in Extradition order; under treaty, Brazil, as requested state, has sole authority to determine whether particular offense is extraditable, and therefore, Washington state is obligated to follow decision of Federal Supreme Court of Brazil that, as condition of extradition of defendant who allegedly set fire in which four (4) firefighters died, he can be prosecuted only "for the crime of arson in the first degree resulting in four deaths . . . without the additional charge of four (4) counts of first degree murder"; lower court's denial of defendant's motion to dismiss or sever four counts of first-degree murder from arson charge is REVERSED; state may only charge defendant with first-degree arson.
(Ruling above WASHINGTON vs. PANG, Washington Supreme Court, 132 Wn.2d 852, 940 P.2d 1293, 61 Criminal Law Reporter 1479 (1997), quoting The Criminal Law Reporter, 62 CrL 3070, 3071, dated 11/12/97, as to summaries of docketed cases before the U.S. Supreme Court, 97-688. The U.S. Supreme Court DENIED the petition for writ of certiorari to the Supreme Court of Washington, 139 L.Ed.2d 608, No. 97-688.)
21. Plaintiff outlined BRAZILIAN LAW as applicable to Counts 5, 6, 8 within Claim XIII, pages 17 and 18 within his AMENDED COMPLAINT.
22. STANDING TO RAISE DOCTRINE OF SPECIALTY: Plaintiff has standing to raise the issue of a violation of the principle of specialty absent a protest by BRAZIL. The EIGHTH CIRCUIT COURT OF APPEALS holds that Plaintiff may raise WHATEVER OBJECTIONS THE EXTRADITION COUNTY IS ENTITLED TO RAISE absent an objection by the extraditing nation. See, U.S. vs. THIRION, 813 F.2d 146, 150 (8th Cir. 1987). See, AMENDED COMPLAINT, pages 23, 24, & 25.
23. Therefore, Defendant Charles Faulkner's STRATEGIC DECISION not to request professional assistance to research his "SOUND BASIS" for not researching the issue of "SPECIALTY DOCTRINE," turns out to be pure negligence to all defendants.
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24. Page 16, CLAIM XI: Defendants state: "Based upon the opinion which Mr. Diersen received from counsel, his staff advised Ms. Faulkner that Mr. Lambros' "COMMERCIAL LIEN" had no validity. See Affidavit of Marc Diersen and Shelia Faulkner."
25. Plaintiff in reviewing the AFFIDAVIT OF MARC DIERSEN, dated August 16, 1999, is unable to locate within the affidavit anywhere where it states, "MR. LAMBROS' 'COMMERCIAL LIEN' HAS NO VALIDITY." It simply states that "BASED ON THE OPINION OF ASSISTANT RAMSEY COUNTY ATTORNEY JEAN STEPAN HE ADVISED MS. REITER TO CONTINUE TO MAINTAIN MR. LAMBROS' DOCUMENTS IN A SEPARATE FILE FOLDER.
26. Also the AFFIDAVIT OF MARC DIERSEN is INCORRECT in paragraph five (5) when it states, "Mr. Lambros failed to identify by legal description any real estate against which he had a claim pending."
27. Plaintiff identified by legal description real estate owned by Defendants to be seized and held in escrow which included, "The home of Charles W. and Sheila R. Faulkner, 2680 Sumac Ridge, St. Paul, Minnesota 55110, PROPERTY I.D. NO. 363022440030, with a market value of $95,100.00, built in 1977, taxes of $1,563.00." See, October 16, 1997, A SECURITY (15 U.S.C.) CLAIM OF COMMERCIAL LIEN LIEN AND AFFIDAVIT," page 2, paragraph 9. Also the attached PARTIAL LIST of property to be seized and held in escrow, dated October 16, 1997.
28. WHEREFORE, Plaintiff JOHN GREGORY LAMBROS requests this Court to award sanctions to Plaintiff and the Court under Title 28 USC Section 1927 and the Federal Rules of Civil Procedure, Rule 11, as to Defendants violations outlined within the statement of facts.
29. Plaintiff has not had time to review all of the material and documents contained within Defendants filing on August 30, 1999. Plaintiff
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thought it was important to inform this Court as to the bad faith, reckless conduct and the indifference to the law Defendants are exhibiting. See, MIERA vs. DAIRYLAND INS. CO., 143 F.3d 1337, 1338, Head note #7, (lOth Cir. 1998)
30. Plaintiff hereby states under the penalty of perjury that the foregoing is true and correct. Title 28 USC Section 1746.
DATED: SEPTEMBER 4, 1999
JOHN GREGORY LAMBROS
Reg. No. 00436-124
PO Box 1000
Leavenworth, Kansas 66048-1000, USA
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
THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.