May 19, 1999, Plaintiff Lambros' "PART II (DELAYED FILING AS PER MOTION FOR EXTENSION OF TIME) PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGEMENT, MEMORANDUM IN SUPPORT AND REQUESTED ORDER DATED APRIL 26, 1999, (23 pages), in LAMBROS vs.FAULKNER, Civil No. 98-1621. (Pages 24 thru 43). Total of twenty-one (21) 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. PART II (DELAYED FILING AS PER MOTION FOR EXTENSION OF TIME) PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGEMENT, MEMORANDUM IN SUPPORT AND REQUESTED ORDER DATED APRIL 26, 1999, dated May 19, 1999
was served the 21st day of May, 1999, via U.S. Mail:
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-437-761-114
2. Attorney Donna Rae Johnson
700 St. Paul Building
6 West Fifth Street
St. Paul, Minnesota 55101
3. Inter-American Commission on Human Rights
Organization of American States
1889 F. Street, N.W.
Washington, D.C. 20006 USA
U.S. CERTIFIED MAIL NO. Z-437-761-115
RE: TO BE FILED WITH: JUNE 30, 1998, Complaint and released to all 35 countries that are members of the Organization of American States.
4. Judge Baltasar Garzon of the National Court of Madrid,
Garcia Gutierrez, #1
Madrid, Spain 28004
RE: TO BE FILED WITH: January 5, 1999, REQUEST FOR ADMISSIONS, mailed on January 7, 1999 and received by Judge Garzon on January 25, 1999.
5. 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
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
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 in the above-entitled action, stating in AFFIDAVIT FORM, opposition to defendants' Motion to Dismiss or for Summary Judgement, Memorandum in Support, and requested Order, all dated April 26, 1999, and signed by Defendants' attorneys, Donna Rae Johnson and Deborah Ellis.
JOHN GREGORY LAMBROS declares under penalty of perjury:
44. THAT THIS DELAYED FILING IS A CONTINUATION OF PLAINTIFFS MAY 11, 1999, FILING AND THAT PARAGRAPH SEQUENCE WILL REMAIN IN ORDER, THUS STARTING AT 44 AND PAGES WILL START AT 24. THANK YOU FOR YOUR CONSIDERATION.
End of page (24)
45. Defendants' violated professional standards portion of test for ineffective assistance of counsel claim as guaranteed plaintiff by the Sixth Amendment and/or negligence when defendants' FAILED to file MOTIONS that allowed Plaintiff to be sentenced to CONSECUTIVE SENTENCES in violation of the underlying treaty with Brazil that Plaintiff was extradited to the United States on. Therefore, Plaintiff's sentence was increased, thus punishment, as U.S.-Brazil Extradition Treaty prevented Plaintiff from being tried or punished by the requesting State for any crime or offense committed prior to the request for Plaintiff's extradition, other than which gave rise to the request. See, Article XXI, U.S.-Brazil Extradition Treaty.
46. Legal cites: U.S. vs. GONDEK, 65 F.3d 1 (lst Cir. 1995) (Key Note 2) (if defendant was on probation or PAROLE at time of instant offense, and has had such probation or PAROLE REVOKED, sentence for instant offense should be imposed to be served CONSECUTIVELY TO TERM FOR PAROLE VIOLATION, is mandatory provision which must be followed by sentencing court.); U.S. vs. COTRONE0, 89 F.3d 510 (8th Cir. 1996), cert. denied, 117 S.Ct. 533, 136 L.Ed.2d 419 (Key note 2). (District Court PROPERLY sentenced defendant to CONSECUTIVE terms of imprisonment for violation of conditions of two concurrent terms of supervised release. 18 USCA §3584(a).
47. U.S. - BRAZIL EXTRADITION TREATY: ARTICLE XXI - (A person extradited by virtue o~ the present treaty MAY NOT BE TRIED OR PUNISHED BY THE REQUESTING STATE FOR ANY CRIME OR OFFENSE COMMITTED PRIOR TO THE REQUEST FOR HIS EXTRADITION, OTHER THAN THAT' WHICH GAVE RISE TO THE REQUEST.); ARTICLE IX(1) (In the case of a person WHO HAS BEEN CONVICTED OF THE CRIME OR OFFENSE for which his extradition is sought; A DULY CERTIFIED OR AUTHENTICATED COPY OF THE FINAL SENTENCE OF THE COMPETENT COURT.) (2) . . . The document specified in this article MUST CONTAIN A PRECISE STATEMENT OF THE CRIMINAL ACTS OF WHICH THE PERSON SOUGHT IS CHARGED OR CONVICTED.)
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48. On August 21, 1989, the U.S. Parole Commission issued a WARRANT for Plaintiff as to charges on 4/22/76 and 2/15/77. Please see RESENTENCING §2255, January 4, 1999, ISSUE ONE (1), pages 9 thru 14.
49. Plaintiff was arrested on the August 21, 1989, PAROLE COMMISSION WARRANT on May 17, 1991, in RIO DE JANEIRO, Brazil. RETAKING TOOK PLACE.
50. On April 30, 1992, the Brazilian Supreme Court DID NOT grant extradition on the August 21, 1989, PAROLE COMMISSION WARRANT. Also the Brazilian Supreme Court was not presented with DULY CERTIFIED OR AUTHENTICATED COPY OF THE FINAL SENTENCES OF THE COMPETENT COURT as to the 4/22/ 76 or 2/ 15/77, charges, as required by ARTICLE IX(l) of the U.S.-Brazil Extradition Treaty.
51. BALLENTINE'S LAW DICTIONARY, Third Edition, 1969, offered the following definition for the word CONSECUTIVE SENTENCE: "Sentences succeeding one another in a regular order, WITH AN UNINTERRUPTED COURSE OR SUCCESSION, and with out interval or break; the opposite of concurrent sentences; sometimes called accumulative or cumulative sentences.
52. Plaintiff was arrested on the PAROLE VIOLATION WARRANT in Rio de Janeiro, Brazil BEFORE arrested on U.S. vs. LAMBROS, Criminal 4-89-82(05).
53. The CURRENT SENTENCE for the August 21, 1989, U. S. Parole Commission, SPECIAL PAROLE VIOLATION is 5,357 DAYS, THAT WILL BE SERVED WITH AN UNINTERRUPTED COURSE OR SUCCESSION WITH ALL COUNTS.
54. BUT FOR the above violations, plaintiff would not be serving a CONSECUTIVE SENTENCE with the U.S. Parole Commission Warrant, Plaintiff would of been notified as to the CONSECUTIVE SENTENCE within the WRITTEN PLEA AGREEMENT, and the U.S. Parole Violation Warrant would of been vacated and/or in the alternative the Court would of dismissed all counts with-the indictment.
CLAIM EIGHT (8):
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55. Defendants' violated professional standards portion of test for ineffective assistance of counsel claims as guaranteed plaintiff by the Sixth Amendment and/or negligence when defendants' FAILED to file motions and DID NOT NEGOTIATE within plaintiff's WRITTEN PLEA AGREEMENT as to plaintiff's SENTENCE INCREASE as to UNEXTRADITED CRIMES that violated both the requirement of double incrimination underlying the treaty with Brazil and the separation drawn by the Brazilian Supreme Court between escape/parole violation and the offenses plaintiff was extradited on. PLAINTIFF COULD NOT RECEIVE MORE THAN A FIFTEEN (15) YEAR SENTENCE ON COUNT ONE (1) UNDER THE OLD LAW, §846, FIRST TIME OFFENDER. Plaintiff was punished for the offenses within the ESCAPE/U.S. PAROLE VIOLATION WARRANT which was not recognized as crimes by the Brazilian Supreme Court.
56. Please review plaintiff's RESENTENCING §2255, dated January 4, 1999, ISSUE THREE (3), pages l9 thru 27.
57. STATEMENT OF LAW: U.S. vs. BAKHTIAR, 964 F.Supp. 112, 117 (S.D. N.Y. 1997)(The Swiss Federal Court was careful to prevent extradition for money laundering offenses, which are not punishable under Swiss Law. Their approach accords with the principle of the Treaty, and we should respect it. We should not allow a doubtful argument, BASED ON A TECHNICAL APPLICATION OF OUR DOMESTIC SENTENCING GUIDELINES, to result in punishing Mr. Bakhtiar for money laundering offenses for which the Swiss expressly denied extradition. As stated in JOHNSON vs. BROWNE, 205 U.S. 309, 321, 27 S.Ct. 539, 543 (1907); U.S. vs. MIR0, 29 F.3d 194, 200 (5th Cir. 1994) ("that increasing a sentence to compensate for UNEXTRADITED CRIMES might, under proper circumstances, be a deviation from a legal rule such that it could constitute error.")
58. In Brazil, ESCAPE IS LEGAL, if no force of arms is used.
59. In the U.S., a PAROLE VIOLATION IS DEFINED AS AN ESCAPE. See, ANDERSON vs. CORALL, 263 U.S. 193, 196, 44 S.Ct. 43, 44 (1923) ([The parolees violation of the PAROLE . . . was in legal effect on the same plane as AN ESCAPE
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FROM THE CUSTODY AND CONTROL OF THE WARDEN. His status and rights were analogous to those OF AN ESCAPED CONVICT.) Quoting, U.S. vs. POLITO, 583 F.2d 48, 54 & 55 (2nd Cir. 1978).
60. The terms "PENALTY, FORFEITURE, or LIABILITY" in the general FEDERAL SAVINGS STATUTE, Title l, USC, Section 109, "were used by Congress to INCLUDE ALL FORMS OF PUNISHMENT FOR CRIME." See, WARDEN vs. MARRERO, 417 U.S. 653, 661, 41 L.Ed.2d 383, 390 (1974), quoting, U.S. vs. ULRICI, 28 F. Cas. 328, 329 (C.C.E.D. Mo. 1875) (The Supreme Court held that MARRERO'S PAROLE INELIGIBILITY WAS A "PENALTY," under Section lO9). Also, the Supreme Court stated in WARDEN vs. MARRERO, Id. at 391, that the words, "PENALTY, FORFEITURE, and LIABILITY," as SYNONYMOUS with "PUNISHMENT," in connection with crimes of the highest grade. SPECIAL PAROLE IS A PENALTY within the meaning of the savings clause. See, U.S. GARCIA, 877 F.2d 23, 24 (9th Cir. 1989).
61. Under MARRERO and GARCIA, the ongoing supervision after release mandated by Title 18 U.S.C. Section 4164 is a "PENALTY" within the meaning of the savings clause. See, MARTIN vs. U.S. PAROLE COMMISSION, 108 F.3d 1104, Key Note 1 (9th Cir. 1997).
62. Title 21 U.S.C. Section 846, in 1988, as per Count One (1) in plaintiffs indictment, DOES NOT ALLOW a sentence and/or penalty of more than a fifteen (15) year term of prison, fine of not more than $125,000.00, OR BOTH. This is if the PAROLE VIOLATION WARRANT PLAINTIFF WAS NOT EXTRADITED ON IS NOT COUNTED. See, U.S. vs. LAMBROS, 65 F.3d 698, 699-700 (8th Cir. 1995).
63. BUT FOR, the above violations as to Defendants' in using the ELEMENTS of the crimes contained within the U.S. Parole Violation Warrant against Plaintiff in allowing the Government to INCREASE plaintiff's exposure within the WRITTEN PLEA AGREEMENT and his sentence was in violation of CONTRACT LAW, REQUIREMENT DOUBLE INCRIMINATION UNDERLYING THE TREATY OF BRAZIL, SEPARATION DRAWN BY THE
End of page 28
BRAZILIAN SUPREME COURT BETWEEN ESCAPE/PAROLE VIOLATION AND THE OFFENSES FOR WHICH PLAINTIFF WAS EXTRADITED, DUE PROCESS, and the DOCTRINE OF SPECIALTY. Therefore, plea negotiations were mishandled and plaintiff opportunity to be offered a better plea negotiation and also a lower sentence if plaintiff decided to go to trial and lost.
CLAIM NINE (9):
64. Defendants' violated professional standards portion of test for ineffective assistance of counsel claims as guaranteed plaintiff by the Sixth Amendment and/or negligence when defendant' failed to request a BILL OF PARTICULARS and did not challenge the indictment plaintiff was indicted on by the grand jury, AS RECORD EVIDENCE, nor request Count One (1) be dismissed during and after trial, due to the fact that INSUFFICIENCY OF EVIDENCE EXISTED TO SUPPORT A TITLE 21, U.S.C. §841(b)(1)(A)(ii) CONVICTION.
65. Plaintiff incorporates ISSUE FOUR (4) from his RESENTENCING §2255, dated January 4, 1999, pages 28 thru 36.
66. It is alleged that Plaintiff made three (3) separate transactions, Count 5, 6, and 8, involving two (2) kilograms of cocaine each. WHICH WAS THEN AGGREGATED TOGETHER, to satisfy the "in excess" of FIVE KILOGRAMS, requirement of Title 21 U.S.C. 841(b)(1)(A)(ii). It has never been alleged (other than Count One (1) of the INDICTMENT) or proven by any standard of proof that plaintiff was involved in one single transaction involving at least five kilograms of cocaine. Title 21 USC §841(b)(1)(A) REQUIRES THAT THERE BE AT LEAST ONE SINGLE VIOLATION OF FIVE (5) KILOGRAMS OR MORE OF COCAINE. THE RECORD DOES NOT SUPPORT SUCH A FINDING.
67. The issue is addressed point blank in U.S. vs. BLACKSTOCK, 1998 WL 152926, (6th Cir. Mich), where the court states, "Although BLACKSTOCK distributed
End of page 29
in EXCESS OF FIVE (5) GRAMS OF CRACK IN THE AGGREGATE, the presentence investigation report reveals that he never distributed five or more grams of crack on ANY SINGLE OCCASION. Consequently, BLACKSTOCK was not eligible for the mandatory minimum sentence under §841(b)(1)(B)(iii)." See also, U.S. vs. WINSTON, 37 F.3d 235, 240-41 (CA6, 1994), Part VI, , (It is obvious from the statute's face - from its use of the phrase "A VIOLATION" that this section refers to A SINGLE VIOLATION . . .) FN 10, page 241, (. . . Accord U.S. vs. MERGERSON, 4 F.3d 337, 346 (5th Cir. 1993) holding that, when applying guidelines, it is proper for sentencing court to use amount of drugs discussed in negotiations in order to calculate base offense level, whereas WHEN APPLYING 5841(b)(1)(A), "[m]ere proof of the amount 'negotiated' . . . WOULD NOT COUNT TOWARD QUANTITY OF HEROIN APPLICABLE TO CONSPIRACY COUNT.") See also, U.S. vs. DARMAND, 3 F.3d 1578, 1581 (CA2, 1993); U.S. vs. ESTRADA, 42 F.3d 228, 232-34 (CA4 1994).
68. The courts have agreed that the STATUTORY maximum sentence must be determined by THE CONDUCT ALLEGED WITHIN THE FOUR (4) CORNEKS OF TUE INDICTMENT. Otherwise, a defendant would not know at the time of his ARRAIGNMENT or CHANGE OF PLEA what his maximum possible sentence would be on the charged offense. See, U.S. vs. CARROZZA, 4 F.3d 70, 71 (Key Notes 9 thru ll)(lst Cir. 1993) Id. at 81.
69. BUT FOR, the above violations as to Defendant's in allowing Plaintiff to be convicted of Count One (1), due to insufficiency of evidence to support a Title 21, U.S.C. §841(b)(1)(A)(ii) conviction, and mishandling plea negotiations as to same, there is a reasonable probability that plaintiff would not of received a conviction on Count One (1), and/or Count One would of been dismissed before trial and the conspiracy count and information would not of been presented to the jury.
CLAIM TEN (10):
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70. Defendants' violated professional standards portion of test for ineffective assistance of counsel claims as guaranteed plaintiff by the Sixth Amendment and/or negligence when defendants' allowed plaintiff to negotiate a written plea agreement to an invalid indictment/legally insufficient indictment that complied with the grand jury indictment clause of the FIFTH AMENDMENT, as to Counts 5, 6, and 8. Defendants' also allowed plaintiff to be convicted and sentenced as to same. The words COUNSELS, COMMANDS, INDUCES, and PROCURES were OMITTED from Plaintiff's indictment in Counts 5, 6, and 8, thus making the indictment fatally defective as to Title 18, USC, Section 2(a).
71. Defendants' failed to make pretrial objections to the sufficiency of the indictment, Rule 12(b)(2) FRCP, failed to make a request for a bill of particulars pursuant to Rule 7(b) FRCP to obtain more definite information, thus the indictment omitted essential elements, whereby it became "so defective that by no reasonable construction can it be said to charge the offense." for which this plaintiff was convicted. See, U.S. vs. CAMP, 541 F.2d 737, 741 (8th Cir. 1976) and HAMLING vs. U.S., 418 U.S. 87, 117.
72. Plaintiff incorporates his RESENTENCING §2255, dated January 4, 1999, ISSUE SIX (6), pages 44 thru 49.
73. BUT FOR, the above violations as to Defendants in allowing plaintiff negotiate a written plea agreement without advising plaintiff of the above violations and allowing plaintiff to be convicted on Counts 5, 6, and 8, there is a reasonable probably that plaintiff would of received more favorable plea agreement and/or not be convicted on Counts 5, 6, and 8.
CLAIM ELEVEN (11 ):
74. Plaintiff restates CLAIM ELEVEN (11), paragraphs 66 thru 70, within his AMENDED COMPLAINT, dated February 17, 1999, and all exhibits as to
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his COMMERCIAL LIEN in this action against defendants'.
75. Plaintiff is requesting this Court to make a DECLARATORY JUDGEMENT as to the validity of Plaintiff's COMMERCIAL LIEN against defendants in the minimum amounts of U.S. Currency as described in paragraph 67 within plaintiff's AMENDED COMPLAINT and COMMERCIAL LIENS as entered as exhibits within this action, THUS MAKING THE COMMMERCIAL- LIEN PERFECTED AND SALEABLE, EXCHANGEABLE SECURITY LIKE ANY OTHER STOCK, BOND, OR MORTGAGE CONTRACT UNDER THE UNIFORM COMMERCIAL CODE.
CLAIM TWELVE (12):
76. Defendants' violated professional standards portion of test for ineffective assistance of counsel claims as guaranteed plaintiff by the Sixth Amendment and/or negligence when defendants' allowed plaintiff to negotiate a written plea agreement that did not take into consideration the DOCTRINE OF SPECIALITY, as per Counts 1, 5, 6, and 8.
77. Plaintiff was extradited from Brazil to the U.S. under the U.S. - BRAZIL EXTRADITION TREATY, thus Brazil's Constitution and Criminal Codes are applicable. Brazil's Constitution prohibits ANY PENALTY of a LIFELONG CHARACTER. See, ARTICLE 5, Clause XLVII,(b). Also, Article 75 of the Brazilian Criminal Code limits the MAXIMUM PRISON SENTENCE TO THIRTY (30) YEARS.
78. Defendants' stated that Counts 1, 5, 6, and 8 all carried a MINIMUM OF A LIFE SENTENCE WITHOUT PAROLE.
79. BUT FOR, the above violations of defendants in minimizing his sentences to no more than 30 YEARS, INCLUDING PAROLE TERM (AS PAROLE IS PART OF A SENTENCE), there is a reasonable probability that plaintiff would of received a plea offer of less than seven (7) years to plead guilty.
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CLAIM THIRTEEN (13):
80. Defendants violated professional standards portion of test for ineffective assistance of counsel claims guaranteed plaintiff by the Sixth Amendment and/or negligence when defendants' allowed plaintiff to negotiate a written plea agreement, allowed to proceed to trial and found guilty on Counts 5, 6, & 8, due to the U.S. - BRAZIL EXTRADITION TREATY EXEMPTIONS that plaintiff was guaranteed when extradited from Brazil to the U.S.
81. The Brazilian Constitution and Brazilian Criminal Code consider Counts 5, 6, & 8 DOUBLE PUNISHMENT.
82. Brazilian Supreme Court Justice NERI DA SILVEIRA uses the Brazilian legal terms BIS IN IDEM and MUTATIS MUTANDIS that appear to by SYNONYMOUS with DOUBLE PUNISHMENT and solved within accordance of the Brazilian law by the "PRINCIPLE OF ABSORPTION."
83. Counts 5, 6, & 8 are all elements of Count One (1) the CONSPIRACY in plaintiff's legal proceedings. The Brazilian rule of law as to the implied principle of SUBSIDIARITY is implied when the crime defined by one of the rules is an ELEMENT or a LEGAL CIRCUMSTANCE OF ANOTHER CRIME. There is SUBSIDIARITY in the case of a complex crime (CC, Article 103). It is said to be complex a crime which has as an ELEMENT or AGGRAVATING CIRCUMSTANCE, a fact which on its own constitutes a crime. THUS, ROBBERY (CC, Article 157) INCLUDES THEFT (Article 155)
84. The above Brazilian Supreme Court law statements are reported within the U.S. Legal publication PACIFIC REPORTER, 940 P.2d 1293, 1338-39 (Wash. 1997), as to the extradition of MARTIN SHAW PANG from Brazil to the U.S., in Brazilian extradition process number 6541/120.
85. The Brazilian Supreme Court stated that MARTIN SHAW PANG should not be prosecuted for the four (4) counts of MURDER that occurred during the fire PANG set. Thus, PANG could only stand trial on one single count of ARSON.
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86. BUT FOR, the above violations of defendants this plaintiff would of been offered a written plea agreement that did not include sentencing exposure to Counts 5, 6,& 8, thus a reasonable probability that plaintiff would of received a plea offer of less than seven (7) years to plead guilty. The JURY would not of been exposed to the allegations contained within Counts 5, 6, & 8, thus the reasonable probability that plaintiff would not of been found guilty on Count One (1). Also, plaintiff would not of been sentenced on Counts 5, 6, & 8. Defendants' did not file any motions as to this argument, did not consult plaintiff's attorney's in Brazil as per plaintiff's request nor contact an international expert in Brazilian law as per plaintiff's request.
CLAIM FOURTEEN (14):
87. Defendants' violated professional standards portion of test for ineffective assistance of counsel claims guaranteed plaintiff by the Sixth Amendment and/or negligence when defendants' allowed plaintiff to negotiate a written plea agreement, allowed to proceed to trial and found guilty on Counts 5, 6, & 8, due to the U.S. - BRAZIL EXTRADITION TREATY EXEMPTIONS that plaintiff was guaranteed under the Brazilian Constitution and Brazilian Criminal Code, when extradited from Brazil to the U.S.
88. Title 18 U.S.C. Section 2, AIDING AND ABETTING was included within Counts 5, 6, & 8.
89. AIDING AND ABETTING is not listed as an extraditable crime, thus prosecution for that offense violates the KULE OF SPECIALTY. See, U.S. vs. GALLO-CHAMORRO, 48 F.3d 502 (llth Cir. 1995), See, page 506, III ANALYSIS, A. THE DOCTRINE OF SPECIALTY:
[W]e begin our analysis by examining the doctrine of specialty, or specialty doctrine, and determining what the doctrine requires under the facts of the case at hand.
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In UNITED STATES vs. RAUSHER, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), the Supreme Court established the rule of law that THE COURTS OF THIS COUNTRY WILL NOT TRY A DEFENDANT EXTRADITED FROM ANOTHER COUNTRY ON THE BASIS OF A TREATY OBLIGATION FOR A CRIME NOT LISTED IN TUE TREATY. Id. at 424, 7 S.Ct. at 243. This principle HAS BEEN EXTENDED TO BAR PROSECUTION FOR CRIMES FOR WHICH, FOR WHATEVER REASON, EXTRADITION WAS NOT GRANTED. See, U.S. vs. ARCHBOLD-NEWBALL, 554 F.2d 665, 685 n.21 (5th Cir.), cert. denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1977) (citations omitted.) FN 8.
[FN 8] In BONNER vs. CITY OF PRICHARD, 661 F.2d 1206 (llth Cir. 1981)(en banc), the Eleventh Circuit adopted as precedent all decisions of the former Fifth Circuit Court of Appeals rendered prior to Oct. 1, 1981.
(U.S. vs. GALLO-CHAMORRO, 48 F.3d 502, 506)
90. AIDING AND ABETTING is NOT an offense in BRAZIL under THE DOCTRINE OF DUAL CRIMINALITY. Therefore, plaintiff may not be prosecuted for same. See, U.S. vs. GALLO-CHAMORRO, 48 F.3d 502, 507:
 The doctrine of dual or double criminality is distinct from the doctrine of speciality.
Double criminality refers to the characterization of the relator's criminal conduct insofar as it CONSTITUTES AN OFFENSE UNDER THE LAWS OF THE RESPECTIVE STATES . . . 'Double criminality' is in effect a RECIPROCITY REQUIREMENT which is intended to ensure EACH of the RESPECTIVE STATES that they (and the relator) can RELY ON CORRESPONDING TREATMENT, AND THAT NO STATE SHALL USE ITS PROCESSES TO SURRENDER A PERSON FOR CONDUCT WHICH IT DOES NOT CHARACTERIZE AS CRIMINAL. U.S. vs. HERBAGE, 850 F.2d 1463, 1465 (llth Cir. 1988)(quoting M. Bassiouni, International Extradition: U.S. Law and Practice, vol. 1, ch. 7, sec. 3, pp. 324-25 (2d rev. ed. Nov. 1987)
(GALLO-CHAMORRO, at 507)
91. Defendants did not raise this issue before the district court
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so as to allow a favorable order by the court to plaintiff. As this court understands, to preserve an issue for appeal, if needed, a general objection or an objection on other grounds will not suffice. See, U.S. vs. GALLO- CHAMORRO, 48 F.3d 502, 507-08 (llth Cir. 1995).
92. BUT FOR, the above violations of defendants this plaintiff would of been offered a written plea agreement that did not include sentencing exposure to TITLE 18 U.S.C. 2, AIDING & ABETTING, in Counts 5, 6, & 8, thus a reasonable probability existed that plaintiff would of received a valid plea offer, a plea offer that would of possibly excluded Counts 5, 6, & 8 and/or eliminating Title 18 U.S.C. §2 from same, a plea offer of less than seven (7) years to plead guilty, the jury would not of been exposed to the allegations of Title 18 U.S.C. §2, AIDING & ABETTING, plaintiff could not of been found guilty of Title 18 USC §2 and/or Counts 5, 6, & 8.
CLAIM FIFTEEN (15):
93. Defendants' violated professional standards portion of test for ineffective assistance of counsel claims guaranteed plaintiff by the Sixth Amendment and/or negligence when defendants' allowed plaintiff to PLEAD T0 THE INDICTMENT, MAKE MOTIONS TO SUPPRESS EVIDENCE and/or QUASH THE INDICTMENT, as it submitted plaintiff to the jurisdiction of the court. Therefore, defendants did not object to the JURISDICTION OF TUE COURT OVER PLAINTIFF, ONLY FOR THAT PURPOSE. See, U.S. vs. LLOYD, 23 F.2d 858, 859 (DC Cal 1928).
94. Defendants' did not raise lack of jurisdiction as to claims of RULE OF SPECIALTY, DUAL CRIMINALITY, and VALIDITY of the U.S. - BRAZIL EXTRADITION TREATY, as to the extradition of offenses punishable under the FEDERAL LAWS OF THE UNITED STATES OF AMERICA.
95. Plaintiff incorporates all past information submitted to this court as to this subject.
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96. BUT FOR, the above violations of defendants this plaintiff would of been set FREE and given thirty (30) to leave the United States before the indictment in this action would of been reactivated, as a reasonable probability exists that the Court lacked jurisdiction, as to the extraditable crimes punishable under the FEDERAL LAWS OF THE UNITED STATES OF AMERICA.
CLAIM SIX (6): (CIVIL RICO CLAIM)
97. Defendants request this Court to dismiss plaintiff's Amended Complaint, "Pursuant to RULE 56, FRCP, on the grounds that there are no material fact in dispute and the defendants are entitled to judgement as a matter of law on plaintiff's malpractice and RICO claims. See, Defendants MOTION to dismiss or for Summary Judgement, paragraph 2, dated April 26, 1999.
98. Defendants state within there MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR FOR SUMMARY JUDGEMENT, page 3, dated April 26, 1999, "With respect to plaintiff's RICO CLAIM, this claim APPEARS to be based upon a Tenth Circuit case which was reversed . . . Plaintiff failed to state any factual basis upon which to find a RICO VIOLATION by Charles W. Faulkner. Therefore plaintiff's RICO CLAIM should be dismissed pursuant to Rule 12, FRCP.
99. Defendants request this Court to sign an ORDER (to dismiss) as to plaintiff's RICO CLAIMS as to the following:
a. [4.] Plaintiff's RICO claim is WITHOUT any factual support. This is listed under the heading of FINDING OF FACT.
b. [3.] Plaintiff's RICO claim is dismissed pursuant to Rule 12(b), FRCP. This is listed under the heading of CONCLUSIONS OF LAW.
100. Plaintiff, as this court, must only wonder as to the legal education of allegedly trained lawyers when they rely on the fallacy in reasoning commonly known as "BEGGING THE QUESTION."
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101. Defendants' essentially rely on an averment that they are not guilty of any "actionable behavior." This is all good and well, but defendants' bald assertions, unsupported by affidavit or deposition testimony, do not even begin to explain why Plaintiff's Complaint, DOES NOT STATE A PREDICATE ACT(S ).
102. Defendants' have not listed the elements of the various offenses and ventured to demonstrate why Plaintiff's proof is lacking. Instead, defendants' and there lawyers/attorneys proffer conclusory denials. This is an insufficient showing on behalf of a litigant who seeks summary judgement. It is an elementary precept of civil procedure that "[t]he party moving for summary judgement cannot sustain his burden merely by DENYING THE ALLEGATIONS IN THE OPPONENT'S PLEADINGS." 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §2727, at 131 (2nd ed. 1983). Importantly, "a party moving for summary judgement is not entitled to a judgement merely because the facts he offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial." Id. at §2725, at 104-05. Therefore, this Plaintiff's complaint is not so facially deficient that this Court could justifiably say Plaintiff will be unable to corroborate his allegations,that the defendants' committed predicate acts contained in Title 18 U.S.C. 1961(1).
103. The Eighth Circuit, the mother circuit of this Court, has stated Plaintiff's rules for STANDING TO BRING THIS RICO CLAIM. See, BOWMAN vs. WESTERN AUTO SUPPLY CO, 985 F.2d 383, 388 (8th Cir. 1993), ( We hold that STANDING to bring a civil suit pursuant to Title 18 U.S.C. S1964(c) and BASED on an under lying CONSPIRACY violation of Title 18 U.S.C. §1962(d) is limited to those individuals who have been harmed by a §1961(1) RICO PREDICATE ACT committed in furtherance of a CONSPIRACY TO VIOLATE RICO. The BUT-FOR CAUSATION REQUIREMENT is eliminated in RICO CLAIMS and replaced by the more restrictive PROXIMATE CAUSATION REQUIREMENT between the injury and the harm alleged. Id. at 388.)
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104. The U.S. Supreme Court addressed CIVIL RICO STANDING in the context of causation, that is the connection between the injury and the RICO act that allegedly caused it. The reasons for including a directness element, according to the Court, are at least three fold. . . . Third, the more likely that individual will take on the ROLE OF PRIVATE ATTORNEY GENERAL, AND THUS UPHOLD THE LAW. See, BOWMAN vs. WESTERN AUTO SUPPLY CO. 985 F.2d 383, 387, fn.3 (8th Cir. 1993) quoting HOLMES, 117 L. Ed.2d at 554. (Private Attorney General John Gregory Lambros at your services)
105. ADEQUACY OF PLAINTIFF'S CONSPIRACY ALLEGATIONS: Section 1962(d) establishes liability for a conspiracy to violate Section 1962(a), (b), or (c). See, AMERICAN BUYING INS. SERV. vs. KORNREICH & SONS, 944 F.Supp. 240, 247 (S.D.N.Y. 1996).
106. All defendants listed within this action are included within this RICO CLAIM, under Section 1962(d) and (c) "participate[d], directly or in directly in conduct of [the] enterprise's affairs." This "operation or management" test can be satisfied by the actions of "ANY PERSON EMPLOYED 8Y OR ASSOCIATED WITH [THE] ENTERPRISE."' REVES, 113 S.Ct. at 1173. Quoting, AMERICAN BUYING INS. SERV., 944 F.Supp. 240, 247.
107. Plaintiff and the Eighth Circuit Court of Appeals have PROVED that the WRITTEN PLEA AGREEMENT offered plaintiff by defendants was an UNENFORCEABLE CONTRACT. This plaintiff was victim of MISREPRESENTATION and/or FRAUD. PLEA AGREEMENTS are CONTRACTUAL IN NATURE, and are interpreted according to general CONTRACTUAL PRINCIPLES. See, U.S. vs. BRITT, 917 F.2d 353, 359 (8th Cir. 1990), cert. denied, 498 U.S. 1090, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1991); U.S. vs. CRAWFORD, 20 F.3d 933, 935 (8th Cir. 1994).
108. Where a PLEA AGREEMENT is AMBIGUOUS, the ambiguities are construed AGAINST the government [Plaintiff's Attorney???]. See, COLEMAN, 895 F.2d at 505; HARVEY, 791 F.2d at 300-01; CARNINE vs. U.S., 974 F.2d 924, 928-29 (7th Cir. 1992);
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ANDERSON, 970 F.2d 607; cf. DAVIS vs. U.S., 649 F.Supp. 754, 758 (C.D.Ill 1986).
109. In 1996, U.S. Federal Judge J. Kaplan held that, "[p]urported ILLEGALITY OF CONTRACT between purchasing group and brokerage group DID NOT PRECLUDE purchasing group from proving DAMAGES UNDER RICO." See, AMERICAN BUYING INS. SERV. vs. KORNREICH & SONS, 944 F.Supp. 240 (S.D.N.Y. 1996). Courts will allow Plaintiff to recover damages on UNENFORCEABLE CONTRACT if plaintiff was excusably ignorant, and defendant was not, of FACTS that made agreement UNENFORCEABLE. Restatement (Second) of Contracts §180. Id. at 241. While courts generally do not grant restitution under agreements that are unenforceable due to illegality, courts will award damages in quantum meruit if it is found that parties are not in pari delicto, as when plaintiff is VICTIM OF MISREPRESENTATION by defendants. Id. at 241. Rule that FRAUD must be plead with particularity does not apply to pleading of "enterprise" and "control" elements of civil action under RICO. Id. at 241.
110. In U.S. vs. EISEN, 974 F.2d 246, 247 (2nd Cir. 1992), Key note1, the court stated: . . . MISREPRESENTATION IN PLEADING AND PRETRIAL submissions were made in hope of fraudulently inducing settlement before trial, and alleged misconduct was intended to defraud the civil adversaries. Title 18 U.S.C.A. 1341 In EISEN, attorneys, law firm's investigators, and it office administrator were convicted of RICO violations in connection with firm's fraudulent conduct of civil litigation as plaintiff's counsel in personal injury case.
l11. Plaintiff has alleged the following RICO predicate acts and incorporates all allegations within this complaint that are relevant:
a. Title 18 U.S.C. §201; (relating to bribery)
b. Title 18 U.S.C. §1341; (relating to mail fraud)
c. Title 18 U.S.C. §1343; (relating to wire fraud)
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d. Title 18 U.S.C. §1503; (relating to obstruction of justice)
e. Title 18 U.S.C. 51512. (relating to tampering with witness, victim, or an informant)
112. MINNESOTA STATE LAW CLAIMS: (TREBLE DAMAGES) See, Minn. Stat. Ann. ~S 481.07-.071 (West l99O) (DEALS WITH PENALTIES FOR DECEIT OR COLLUSION) See, HANDEEN vs. LEMAIRE, 112 F.3d 1339, 1355 (8th Cir. 1997).
113. The above Minnesota statutes, M.S.A. §§ 481.07, 481.071, dealing with penalties for DECEIT or COLLUSION do not create a new cause of action, but merely provide penalties available to one who prevails on COMMON LAW RIGHTS OF ACTION. See, HANDEEN, at 1342, Key note 28.
114. Plaintiff incorporates all of the allegations relevant to the RICO CLAIM, and Plaintiff unequivocally asserts that the defendants acted to "DECEIVE PLAINTIFF AND/OR A PARTY TO A COURT PROCEEDING AND DECEIVE THE COURT."
115. Plaintiff invokes M.S.A. §§ 481.07, 481.071 FOR DAMAGE PURPOSES ONLY.
116. Plaintiff has attached to this pleading an overview, although not complete, of RICO claims filed in this case, so as to assist this Court in reviewing same. Attached are the following:
a. Plaintiff's July 20, 1998, MOTION TO SUPPLEMENT THIS DECLARATORY JUDGEMENT ACTION/COMPLAINT PURSUANT TO FRCP 15(a), pages 9 thru 12;
b. Plaintiff's September 15, 1998, AFFIDAVIT IN OPPOSITION TO DEFENDANTS ANSWER, pages 6 and 7;
c. Plaintiff's November 4, 1998, MOTION TO ALTER THE PLEADINGS IN THIS MATTER AS PER U.S. MAGISTRATE JUDGE MASON'S ORDER, DATED OCTOBER 15, 1998, pages 18 thru 23.
PLAINTIFF HAS STATED ACTIONABLE CLAIMS AGAINST SHEILA
FAULKNER & FAULKNER, AND JOHN AND JANE DOE(S):
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117. PARTNERSHIP: Defendant Attorney Sheila R. Faulkner was partner within the partnership of Faulkner & Faulkner. John and Jane Doe(s) may or may not of been members of the partnership of Faulkner & Faulkner. Discovery is needed so as to disclose records and relationships. Therefore, the partnership of Faulkner & Faulkner and Attorney Sheila R. Faulkner are liable as are John and Jane Doe(s). Plaintiff incorporates pages 11 thru 13 within this response as to partnership laws and liability. Acts of one partner binds the partnership, and once partnership is bound, EACH INDIVIDUAL PARTNER IS JOINTLY AND SEVERALLY LIABLE FOR ALL DEBTS AND OBLIGATIONS INCURRED BY THE PARTNERSHIP. See, SINGER HOUSING CO. vs. SEVEN LAKES VENTURE, 466 F. Supp. 369 (D.Colorado 1979)
118. Genuine issue of fact exists as to partnership status of members of Faulkner & Faulkner at the time of claims within this action, THUS PRECLUDING SUMMARY JUDGEMENT AGAINST DEFENDANTS IN THIS ACTION.
119. Plaintiff has established a claim of legal malpractice and/or negligence and RICO against Defendants. See, BLUE WATER CORP. vs. O'TOOLE, 336 N.W.2d 279, 281 (Minn. 1983).
120. Plaintiff does not have the money to secure expert testimony to establish the standard of care applicable to the defendants, THUS PLAINTIFF IS REQUESTING A JURY TO EVALUATE THE RELEVANT CONDUCT. See, HILL vs. OKAY CONSTR. 312 Minn. 324, 327, 252 N.W.2d 107, 116 (1977)
121. Plaintiff is requesting this court to dismiss defendants ORDER and open discovery in this action so all parties may plan for jury trial. Also plaintiff is requesting this court to render an opinion as to the defendants insurance company and attorneys being named as defendants within this action.
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DATED: May 19, 1999
JOHN GREGORY LAMBROS
Reg. No. 00436-124
PO Box 1000
Leavenworth, Kansas 66048-1000, USA
PLEASE NOTE: As of May 07, 1999, COMPANION CASE U.S. vs. LAMBROS, Criminal File No. CR-4-89-82(05), District of Minnesota, Eighth Circuit Court of Appeals case No. 65 F.3d 698 (1995), contained 229 CRIMINAL DOCKET ENTRIES AS PER PAGE 18 OF THE DOCKET SHEET.
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.