This motion presents a clash between American Constitutional and jurisprudence notions of fair play and Scientology policies of "fair game."
On July 19, 1999, Kendrick Moxon, Esq. ("Moxon") of Moxon & Kobrin, in-house counsel for Church of Scientology International ("Scientology") was awarded sanctions against Movant herein, Graham E. Berry ("Berry") after Moxon's Rule 11 motion was granted on April 15, 1999. The gravamen of Moxon's successful motion for Rule 11 sanctions inter alia was that Pattinson's complaint frivolously alleged "that Mr. Moxon participated in various of the criminal, fraudulent, and unethical activities alleged [therein]." (See First Amended Complaint ¶54, Third Amended Complaint ¶11, 12, 19, 42(f), 54.)
The Court concluded, in its April 15, 1999 order that [Berry] acted in bad faith by pursuing meritless claims against defendant Moxon in this action." On July 19, 1999, Berry was sanctioned in the amount of $28,000.
On June 10, 1999, after the Rule 11 order, and after the briefing on the sanctions award had been concluded, Berry was contacted by Robert Cipriano, an old acquaintance from New York who had recently rejoined Alcoholics Anonymous and, following their 12-step program, needed to make amends to Berry who had also recently affiliated with AA. On August 9, 1999, and September 26, 1999, Cipriano, through two separate Declarations, provided the evidence Berry needed to prove that Moxon, had, in fact, participated in various criminal, fraudulent and unethical activities on behalf of his client, Scientology. (Cipriano Appendix Exhibits B and C.)
As more fully set forth in Cipriano Appendix Exhibit B, page 15, para. 43, Cipriano testified that in April/May, 1998 he been offered around $750,000 by Moxon for further perjured and libelous testimony against Berry for the purpose of ruining Berry's professional and personal reputation and destroying his financial, health and mental stability. (Cipriano Appendix Exhibit C, ¶7-13,Exhibit 1.Berry Decl.Exh. 2)
The scheme worked. Berry eventually filed for bankruptcy on June 11, 1999. In October, 1999, he took in-house corporate employment and began winding down his remaining legal practice on the express advice of his psychiatrist who believed that the stress of the Scientology litigation was the root of his severe depression and suicidal ideation, and that he should, at least temporarily relieve himself of the stress of full time trial lawyering. (Berry Decl.¶_14, Exh. 1).
II. SUMMARY OF ARGUMENT
Although Moxons misconduct arguably taints these entire proceedings, this motion does not seek reconsideration of any of the courts prior rulings. Instead, Berry contends that the sanctity of the justice system, the equitable principles underpinning Rule 60 (b), and the inherent jurisdiction of this court, demand that the Rule 11 memorandum order of April 15,1999, and the Rule 11 sanctions order of July 19,1999, be vacated nunc pro tunc since they were won by Moxon, an officer of the court, who waged what amounts to psychological warfare and a criminal campaign against Berry, aided by an unlimited Scientology-funded war chest that included the offer of over $750,000 for bribes and the actual payment of at least several hundred thousand dollars laundered through a non-profit section 501 (c) corporation incorporated by Moxon for this specific purpose . (Cipriano Appendix, Exhibit B, ¶ 43, 46, 47-101, Exhs. 8-11,14-17,20-50;Exh. B,¶10-15,Exh.1.) Despite all of the subterfuge, all of the money came from or through Moxon, was spent entirely on Ciprianos business and living expenses, and not one thin dime was ever distributed for a charitable purpose.
III. SUMMARY OF FACTS
During the pendancy of this lawsuit alone, Moxons corroborated criminal conduct, directed at Berry, included violations of 18 U.S.C. §§ 1621, 1603, 1503, 1512, 371 2(a), 2(b) (perjury, obstruction of justice, witness and evidence tampering, conspiracy, aiding and abetting and the use of an intermediary). Specifically, Moxon's fraudulent acts committed in conjunction with and the furtherance of this action included:
(1) The May 5th, 1994 presentation of the first Cipriano Declaration with numerous fabrications and exaggerated statements regarding Graham Berry's sexual history to Robert Cipriano, which Cipriano was forced to sign under duress and the coercive threats of attorney Moxons agent Ingram (Cipriano Decl, ¶ 20);
(2) The use of less than candid investigators to obtain information and the subsequent use of that information obtained through the practice of intimidation and coercion (Id. at ¶¶ 14-20, 23-28);
(3) The deposition preparation of Cipriano by Moxon on June 29th, 1998 during which Moxon (later Samuel D. Rosen, Esq.) instructed Cipriano to lie about the ages of Berry's sexual relationships, violated of Rule 3-210 of the Rules of Professional Conduct and C.C.P. §1209(8) (Id. at ¶ 50) [18 U.S.C. §§371, 1512, 2(B), 1503, 1621 AND 1623 (conspiracy, obstruction of justice, witness and evidence tampering, perjury];
(4) The further testimonial preparation of Cipriano by Moxon comprised of instructions to lie on June 30th, 1998, also in violation of Rule 3-210 of the Rules of Professional Conduct and C.C.P. §1209(8) (Id. at ¶ 50);
(5) Violating the oath taken by all attorneys at law under Business and Professions Code §6067, in which attorneys promise " faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability," violating C.C.P. §1209(3);
(6) The unlawful business dealings between attorney and client prohibited by Rule 5-200 of the Rules of Professional Conduct and C.C.P. §1209 (8), undertaken in order to maintain Cipriano's livelihood in exchange for perjurious testimony against Berry;
(7) the promise of up to three quarters of a million dollar ($750,000) donation to the Moxon/Scientology-founded charity, Day of the Child (Id. at ¶ 47);
(8) The provision of a $2,500 loan to Cipriano (Id. at ¶47);
(9) The provision for Cipriano's room and board at Joanne Wheaton's Franklin House (Id. at ¶ 49);
(10) The rental of a Palm Springs condominium, a five bedroom Palm Springs home complete with swimming pool and monthly provisions for Cipriano's board and living expenses by the law firm of Moxon & Kobrin (Id. at ¶ 59);
(11) The provision by Moxon, at no cost to Cipriano, of a $20,000 lawyer in New Jersey to clear and expunge Cipriano's criminal record (Id. at ¶ 60);
(12) The subsequent provision of settlement monies in the amount of $1,500 [Id. At ¶];
(13) Moxon's provision of legal services to incorporate Cipriano's "Day of the Child" Charity in Nevada, (Id. at ¶¶ 61-63);
(14) Moxon's provision of a new Saturn automobile for Cipriano on October 6, 1998 (Id. at ¶ 67); and Moxon's provision of a Packard-Bell computer for Cipriano at a cost of $1,000 [Id at ¶79 ].
IV. SUMMARY OF THE LAW
Berry relies upon Rule 60(b) for the following reasons:
(1) The judgment is void because it was procured through a fraud upon this court;
(2) that the Cipriano revelations are newly discovered evidence; and,
(3) this motion is timely made.
Moreover, Berry relies upon the equitable principal that Moxon's actions constitute [very] unclean hands and to reward him for his "out-lawyering" and unlimited slush fund makes a mockery of our system of law.
Finally, Berry contends that the threshold test, that the exercise of the court's discretion not be an empty exercise, is easily met in the "unusual" circumstances herein. First, Berry has been forced into bankruptcy, which is still pending as Moxon has brought several adversary proceedings in that action. Second, Moxon used the language of this Courts Order as a principal reason for having Berry declared a vexatious litigant and an appeal against that order is about to commence.
Third, and even more importantly, the actions of Moxon, on behalf of his client Scientology, are so despicable that to allow the sanctions order to stand, in effect, condones their belief that "the end justifies the means." This belief was firmly rejected by this country's founding fathers as evidenced by the Constitution and Bill of Rights, and has consistently been rejected, as evidenced by the current Ramparts scandal.
A. RULE 60(B) IS APPLICABLE TO THE FACTS HEREIN
This motion is made pursuant to Rule 60(b) which provides, in pertinent part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud: ETC. On motion and upon such terms as are just, the court may relieve a party or partys legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect: (2) newly discovered evidence which could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether hitherto denominated intrinsic or extrinsic), misrepresentation or other conduct of an adverse party; (4) the judgment is void;(5) the judgment has been satisfied,released,or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reason (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken
This motion has been made within a reasonable time and within a year of the entry of the Rule 11 order herein. (Berry Decl. ¶ 8 ©-(e), 11-17. ) Moreover, this motion is also made pursuant to Rule 60(b)(4), (5) and (6) to which the one-year limitation period does not apply. In addition, the full extent of Moxons criminal conduct has yet to be revealed. Indeed, it continues to this day with defendant and Ingram allegedly attempting to intimidate the States witnesses in the Hurtado v Berry case. Moxon and Ingram have been most recently directing this conduct at the Los Angeles District Attorneys witnesses in People v. Hurtado, Berry Decl. Exh. 11, pp.5:4-19
For instance, in January 1998 Moxon unlawfully solicited the legal representation of Cipriano when Mr. Berry sued him for defamation. (Second Cipriano Decl. ¶ 23-43.) He again unlawfully used intermediaries to this end. (Second Cipriano Decl. ¶¶ 23-24.) 18 U.S.C. section 2 (b). He embarked upon a further conspiracy. (Second Cipriano Decl. ¶ 28); Third Cipriano Decl. ¶¶__, Exh. _. 18 U.S.C. section 371. He aided and abetted the making of further perjuries statements in both filed declarations and depositions. (Second Cipriano Decl ¶¶ 28); (Third Cipriano Decl.¶¶7-15). 18 U.S.C.section 2(a). He made related, relevant and knowingly false statements to this court that were intended to prejudice the court against Mr. Berry and to influence the court into issuing the sanctions against Mr. Berry that he then used in other forums to drive Mr. Berry from the active practice of law where he had been such a pain in the butt to Moxons client/organization.18 U.S.C.1621 &1623. ( Berry Decl ¶ 8(d), 11,12,14-16, Exhs. 1,2,4, 6-11). Also concurrent with the proceedings herein, consistent with the allegations against him herein, and contrary to his express oral and written representations to this court, Moxon engaged in witness tampering and the obstruction of justice. (Second Cipriano Decl. ¶ 23-101; Berry Decl. Exh. 5 p. 6:11-14:18; Exh. 11, p. 5:4-19). 18 U.S.C. sections 1503 & 1512.
Moxon and Ingram have been most recently directing this conduct at the Los Angeles District Attorneys witnesses in People v. Hurtado. (Berry Decl. Exh. 11, p.5:4-19). However, such documented and corroborated criminal conduct is no less serious when it occurs during the course of civil proceedings such as happened during those herein. Indeed, the U.S.Department of Justice often prosecutes for perjury and related criminal conduct that occurs during civil proceedings. Indeed, in United States v. Holland, 22 F.3d 1040,1047 (11th Cir.), cert. denied, 513 U.S. 1109 (1994) the court held that the perjury statute applies without distinction both to perjury committed in a civil proceeding and to perjury committed in a criminal prosecution.
B. THIS MOTION SATISFIES ALL OF THE REQUIREMENTS OF RULE 60(b).
This motion presents clear and convincing evidence to support the relief requested herein. The arguments are supported by clearly applicable law and the allegations are corroborated by the recanted testimony of Moxons former client Robert Cipriano and fifty relevant documents-many of them bearing Moxons signature. Cipriano did not come forward until after the court issued its first ruling that the allegations in the complaints herein, as against Moxon, were asserted in bad faith and just before this court rewarded Moxons criminal conduct by awarding him sanctions in the amount of $28,000 against Mr. Berry. Rule 60(b) (1) and (2). Applicable authority holds that Moxons conduct against Mr. Berry was inter alia fraud (whether intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party [including fraud upon the court]. Rule 60(b) (3). Because of Moxons misconduct herein, and while procuring the sanctions opinion (April 15,1999) and the sanctions order herein (July 19,1999), the said orders [judgment] are voidable/void. Rule 60 (b) (4). Moreover, because of the conduct described and documented herein, and the manner in which Moxon continues to use this courts April 15, 1999 and July 19, 1999 orders it is no longer equitable that the [orders] should have prospective application. Rule 60 (b) (5). For all of these reasons, and the health of Mr. Berry which was demonstrably and adversely affected by Moxons six year fair game operation against Mr. Berry, relief from the operation of the [orders] is also justified. Rule 60 (b) (6). (Berry Decl. ¶¶ 8-12; 14-19).
Accordingly, Rule 60(b) recognizes this courts inherent power to grant relief from judgment where this court has been subjected to fraud so grave that relief is afforded without regard to any arbitrary time limitation. See generally: Hazel Glass Co. v. Hartford Empire Co., 322 US 238, 88 L Ed 1250,64 S Ct 997 (1944), Bucy v. Nevada Construction Co., 125 F2d 213 (9th Cir. 1942). Indeed, it was not until June 1999, that Cipriano terminated his particular role in the Moxon, Rosen, Ingram and Scientology conspiracy by communicating with an initially suspicious Berry and finally executed the Second Cipriano Declaration on August 9, 1999, and the Third Cipriano Declaration on September 26, 1999. (Berry Decl. ¶ 17.) In that regard it is noteworthy that Cipriano was also involved with the obstruction of justice by Moxon and Ingram in the Hurtado case by helping to locate and bribe a street hustler, Anthony Abodeca, into giving perjured testimony against Berry. (Cipriano Appendix ,Exh.B, ¶84-85.) Apodeca has just been released from prison where he was served with a subpoena for his deposition. Hurtado is currently in prison again, where he will soon be deposed. A motion to preserve the Cipriano and Moxon documents is pending in State Court. (Berry Decl ¶18, Exh.12) Accordingly, the full extent of Moxons corruption is still to be revealed.
Consequently, the fraud on the court that Defendant Moxon was perpetrating during this litigation, and which was only discovered after the ruling on his Rule 11 motion herein, continues to be perpetrated upon the court (s) and Berry, and should operate as a waiver, estoppel and tolling event in connection with the Rule 60(b) limitation periods.
C. THE VACATING OF THE RULE 11 ORDER IS A NECESSARY NOT AN EMPTY EXERCISE OF THE COURT'S DISCRETION
In addition, Berry satisfies the threshold test that the exercise of this courts discretion will not be an empty exercise. Marderosian v. Shamshak, 170 FRD 335 (DC Mass. 1997). The Rule 11 0rder herein forced Mr. Berry into a Chapter 7 Bankruptcy filing. Moxon filed an Adversary Proceeding to have the Rule 11 sanctions against Mr. Berry ruled non-dischargeable on the ground that Berry acted maliciously against him herein and therefore engaged in intentional tortuous conduct throughout this proceeding. (Berry Decl. Exh. ¶12, Exh. 6) If this Court does not grant Mr. Berry the relief sought herein, the Moxon v. Berry bankruptcy court trial commences on June 26, 2000, Moxon has filed another adversary proceeding on behalf of Hurtado and tried to file on behalf of Scientologist Glenn Barton. Moxon was also responsible for the filing of a California State Bar complaint against Mr. Berry on the basis the Rule 11 order herein. That complaint is still pending. (Berry Decl .¶ 15.) Finally, Moxon used the Rule 11 Order, and the Courts opinion herein, as a major basis for a legally and factually unsupported vexatious litigant ruling against Berry. An appeal against that ruling is about to proceed. (Berry Decl. Exh. 7-10.) Thus, the effect of this Courts Rule 11 order and opinion, in the hands of Moxon, has been to ruin Berry professionally and financially and to drive from the active and private practice of law. (Berry Decl. ¶ 8(d), Exhs. 1-11, Exh. A-C..)
Accordingly, the exercise of this courts discretion in favor of Berry will not be an empty exercise .On the contrary, it will assist Berry to try and undo some of the wrongs Moxon has perpetrated upon him with his use of this Courts Rule 11 order as sword with which to totally destroy Berrys 25-year legal career. Surely this was not the intended effect of this courts order, and the language of its opinion, particularly in light of the real facts now known to this court. Moxon actively concealed those facts from this court as part of his despicable to stop Berry from litigating against his Scientology organization to which he had been a pain in the butt. (Berry Decl. ¶ 4.) No imaginable order or opinion now issuing from this court will ever undo the damage and distress that the Rule 11 order and opinion herein, procured by Moxon in the course of his amply corroborated criminal conduct, has permanently caused Berry. By vacating the Rule 11, it will enable Berry to try and undo some of the damage Moxon has done with it. Amazingly, he has even injected himself into litigation where he is not of record and where he has used this courts opinion and order to try and prejudice Berry and one of his former clients before this Central District, which Berry once represented, pro bono in Standing Committee v. Yagman. (Berry Decl. ¶ 16, Exh.10.) Surely it was not this courts intention to give Moxon the specific language in its written opinion, and an order, to hang around Berry neck, like a dead albatross, and with which to pursue him like some modern day Inspector Javier, quickly driving him from his profession of twenty-five years practice, in five different jurisdictions.
Moreover, the court must exercise its discretion under Rule 60(b) in accordance with equitable principles. United States v Southwest Nat. Bank, 598 F2d. 600 (Em Ct App 1979), Assmann v. Fleming, 159 F2d 332 (8th Cir. 1947). As shown herein, Moxon comes to this court with demonstrably unclean hands and so the court must exercise its discretion in favor of Berry.
D. MOXON'S FRAUD AND UNCLEAN HANDS WARRANTS THE VACATING OF THE RULE 11 ORDER
The Doctrine of fraud upon the court is solely concerned with the integrity of the judicial process. Where the charges implicate counsel they implicate the integrity of the judicial process. Kerwit Medical Products Inc. N & H Instruments, 27 FR Serv 2d 250 (ND Tex 1978), affd 616 F2d 833 (5th Cir.), 207 USPQ 625, 29 FR Serv 2d 1190. Since attorneys are officers of court, their allegedly dishonest conduct involving misrepresentation and perjury would constitute fraud on the court. H.K.Porter Co. v Goodyear Tire & Rubber Co., 536 F2d 1115 (6th Cir.Ohio 1976), 191 USPQ 481, 21 FR Serv 2d 1429. If attorney was implicated in fabrication of evidence by party, such implication would constitute fraud upon the court. United States V. International Tel. & Tel.Corp. 349 F Supp 22 (DC Conn 1972), affd without opp 410 US 919,35 L Ed 2d 582, 93 S Ct 1363(1973).If there was corruption on part of officers of court, court was under duty to take whatever action might be appropriate to sustain its integrity and to undo any resulting harm or injustice. Chicago Title & Trust Co. Fox Theatres Corp. 182 F Supp 18 (SD NY 1960).
Ciprianos belated but still timely decision to recant and finally tell the truth, and to testify about Moxons smorgasbord of corruption and criminality directed at Berry during the pendancy of this litigation, corroborated by at least 50 exhibits (many emanating from, or signed by, Moxon himself, clearly and convincingly evidences the infection and contamination that attorney Moxon has wrought upon every forum in which Moxon has appeared against Berry since the blackmailing of Cipriano on May 4-5, 1994. (Cipriano App. Exh B, ¶14-20).. Lawyers are agents (technically officers) of the courts, Norton v. Hines (1975) 123 Cal. Rptr. 237, 241, 49 C. A. 3rd 917, and the courts are a branch of the government. Article III, United States Constitution, Article VI, California Constitution. Lawyers, therefore, are an extension of the judiciary branch of government, whether state or federal. Moreover, there is no constitutionally guaranteed right to practice law, In re Investigation of Conduct of Examination For Admission to Practice Law 1 Cal. 2d 61, 67, Cohen v. Wright 22 Cal. 293, 317, only reconfirms and solidifies this conclusion. Legal practice is a privilege bestowed by the legislature and courts upon persons in accordance with rules, regulations and standards strictly defined by them.
Fundamental to a person's conduct in executing the duties and obligations relative to the office of attorney is the duty of that person to observe and uphold the law. Conversely, Moxon has violated Rule 8.4(b) by committing the criminal acts listed in the Appendix, Rule 8.4(c) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and Rule 8.4(d) by engaging in conduct that is prejudicial to the administration of justice. Moxon violated Rule 1-400(C) of the Rules of Professional Conduct by making a solicitation on behalf of an attorney or law firm to a prospective client with whom the attorney or law firm has no family or prior professional relationship, and further, in violation of Rule 1-400(D)(5), transmitting a solicitation in such a way as to involve intrusion, coercion, duress, compulsion, intimidation, threats, and vexatious and harassing conduct. It requires no leap of reason, logic or imagination to conclude that violation of the law in the execution of one's duties and obligations in the privileged office of attorney, whether absent a client's knowledge and consent, or at the behest and urging of a client (such as Moxon's Scientology client herein), is a violation of the oath and the court order bestowing on that person the privilege of legal practice. Likewise, such practices violate applicable Rules of Conduct forbidding deceitful, fraudulent, or misleading behavior and crimes of moral turpitude. Assuming the violator acted in an effort to gain unfair advantage in the proceeding and prevail over his or her opponent, as happened here, the issue then becomes one of what impact such a violation has upon the instant proceedings in light of those in which the violator acted unlawfully.
As early as 1993, Moxon (acting in his official capacity as officer of the court and in connection with his representation of Scientology) commenced a pattern and practice of criminal conduct, directed specifically at Berry, in violation of numerous sections of the Code of Professional Responsibility, the Business and Professions Code, the California Penal Code and the California Code of Civil Procedure, as well as numerous sections of the U.S. Code. [including 18 US.C. §§ 1621m 1623m 1503, 1512, 371, 2(a), and 2(b)] (Berry Decl. ¶ 4, Exh.4) These violations are so numerous that to review them in detail herein would require a memorandum far in excess of the twenty-five-page limit. The violations reached their zenith during the pendancy of this lawsuit when attorney Moxon was saying one thing on the courts record and doing the exact opposite outside of the courtroom. At a minimum, the totality of the numerous violations directed, by Moxon, at Berry, since 1993, include impersonating a police officer, intimidation, coercion, extortion, solicitation, bribery, witness tampering, perjury, subornation of perjury, blackmail, collusion, obstruction of justice, mail fraud, wire fraud, malicious prosecution, vexatious litigation, stalking, wiretapping, invasion of privacy, libel, slander, bankruptcy fraud, insurance fraud, and fraud upon the courts (given the fact that Moxon has actually filed perjurious documents in various courts) and conspiracy to commit all of the foregoing.
This motion presents clear and convincing evidence to support the relief requested herein. The arguments are supported by clearly applicable law and the allegations are corroborated by the recanted testimony of Moxons former client Robert Cipriano, and fifty relevant documents--many of them bearing Moxons signature or name. Cipriano did not come forward until after the court issued its first ruling that the allegations in the complaints herein, as against Moxon, were asserted in bad faith and just before this court rewarded Moxons criminal conduct by awarding him sanctions in the amount of $28,000 against Berry. Rule 60(b) (1) and (2). Applicable authority holds that Moxons conduct against Berry was inter alia fraud (whether intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party [including fraud upon the court]. Rule 60(b) (3). Because of Moxons misconduct herein, and while procuring the sanctions opinion (April 15,1999) and the sanctions order herein (July 19, 1999), the said orders [judgment] are voidable/void. Rule 60 (b) (4). Moreover, because of the conduct described and documented herein, and the manner in which Moxon continues to use this courts April 15, 1999 and July 19, 1999 orders It is no longer equitable that the [orders] should have prospective application. Rule 60(b) (5). For all of these reasons, and the health of Berry which was demonstrably and adversely affected by Moxons six year fair game operation against Mr. Berry, relief from the operation of the [orders] is also justified. Rule 60 (b) (6). (Cipriano App. Exhs. A-C; Berry Decl. ¶ 2-19, Exhs.1-12.)
Finally, the fifty different documents corroborating Ciprianos shocking testimony are explicit, credible and overwhelming. Were any ordinary citizen, or any other lawyer but Moxon to have engaged in a mere fraction of Moxons lawlessness, they would be immediately arrested and easily convicted. Accordingly, and at the very least, the fruits of Moxons misconduct, the April 15, 1999 and July 19, 1999 court orders herein should be vacated nunc pro tunc.
Dated: April 14, 2000
GRAHAM E. BERRY