Rule 60 appeal as filed

From: hkhenson@my-deja.com
Subject: Rule 60 appeal as filed
Date: Fri, 15 Dec 2000 05:20:44 GMT
Message-ID: <91c9n8$5g4$1@nnrp1.deja.com>

2. What are the facts of your case? In June of 1998, the district court entered judgment of $75,000 in the underlying copyright case, "the largest judgment in history on a single infringement." The infringed material was a two page document which may be properly described as a criminal instruction manual for the illegal practice of medicine. It was used as an example of the generally criminal nature of the cult of Scientology in an open letter to the district court. In June of 1999 the district court entered judgment of $7,500 on a related "contempt" matter where defendant had inadvertently posted a partly sealed court transcript on the Internet. (Judgment was appealed by RTC and is now back in the district court on a request by RTC it be increased to about $100,000.) In June of 1999 Robert Cipriano started talking to my lawyer, Mr. Graham Berry, about a number of criminal acts he and the lawyers for the plaintiff RTC had committed against Mr. Berry before, during and after Mr. Berry was my counsel. Mr. Cipriano's confession seems to have been motivated by a combination of a guilty conscience and being discarded as a used tool by Scientology. August 5, 1999, Robert Cipriano signed the remarkable declaration which became Exhibit A of the Rule 60 motion. March 26, 2000, defendant filed (pro se) a motion requesting relief from judgment under Rule 60(b)(3) for the contempt matter and under Rule 60(b)(6) for the underlying copyright judgment. The motion, MOTION UNDER RULE 60(b)3, RULE 60 (b) (6) AND FRAUD ON THE COURT DUE TO ADVERSE PARTY'S CRIMINAL MISCONDUCT, OPTIONAL REQUEST FOR EVIDENTIARY HEARING, was filed timely (under one year) for a Rule 60(b)3 appeal on the June1999 contempt judgment. The motion was based on the evidence in the Cipriano declaration (Exhibit A in the motion), supporting exhibits 1-50 (supplied before judgment), the Berry Declaration (Exhibit B in the motion) and the Ward Declaration (Exhibit C in the motion). April 4, 2000. RTC replied to the motion without declarations or any other opposing evidence. April 21, 2000 Henson replies to RTC. Because RTC's reply had claimed (not under oath) that the allegations made in the motion are "false," defendant filed the Cipriano Exhibits 1-50 which consisted of copies of email, net postings, handwritten notes (on OSA-Scientology letterhead), affidavits, request for Bar investigations, retainer agreements, business offers (for the fraudulent "Day of the Child"), loan agreements, canceled checks, bank statements, apartment and car lease agreements, incorporation papers, board minutes, and car registration supporting the allegations of the Cipriano declaration in the finest detail. The Cipriano exhibits were later stricken by the district court at the request of RTC. May 17, 2000, the district court entered judgment denying the March 26, 2000 motion, in effect denying the admissibility of the Cipriano Declaration for the purpose of the motion, in spite of there being no opposing evidence, and without holding an evidentiary hearing. The district court also ruled that the motion was untimely when (with respect to the judgment on the contempt issue) it was clearly not untimely having been filed less than a year after judgment. The district court also stated that the behavior complained about (some dozens of felonies committed against Mr. Berry) did not rise to the level required for Rule 60(b) (6). The text of the judgment focused on Eugene Ingram, dismissing him as "a one-time private investigator for the Church of Scientology" when Mr. Ingram is clearly secondary, acting as an agent of an officer of the court, Kendrick Moxon (and a one-time unindicted co-conspirator).
Moxon's name appears 240 times in the Cipriano Declaration. Ingram's name appears 105 times. Though Cipriano's initial meeting was with Ingram, most of the subsequent felony acts Cipriano describes were planned by Moxon and accomplished in concert with Moxon. "Moxon" appears in defendant's papers more often than "Cipriano" and "Ingram" combined, and co-equal with Ingram in the opposition paper. But it is "Ingram" alone who is featured in the judgment and "Moxon" is not mentioned at all, not even on the judgment service list--a unique exception in this case for Scientology's in-house law firm of Moxon and Kobrin. Defendant has no explanation of why Moxon's behavior, that of an officer of the court, was completely ignored by the district court, when (according to uncontroverted evidence) he was the main actor in some dozens of felonies perpetrated against my lawyer, Graham Berry, another officer of the court. In footnote 1, page 2 of the judgment, the district court commented that "this case . . . does not turn on . . . . the conduct of Church members." If this is upheld, Mr. Moxon (a Scientology "Church" member) has been granted a license by the district court to abuse other parties without limit or consequence. Finally, the district court states: "Nor is this the exceptional case warranting relief under Rule 60(b)(6) or the court's inherent powers." If several dozen felonies orchestrated by opposing counsel to harass defendant's counsel during the course of a case are not "the exceptional case," it would be of considerable interest even to those outside the legal profession for the court to say what would be an "exceptional case." Murder perhaps? 3. What did you ask the district court to do? Grant relief from judgment under Rule 60(b) (3) and Rule 60(b) (6) due to adverse party's fraud on the courts and felony level misconduct against my lawyer during the case. 4. State the claim or claims you raised at the district court. That RTC committed fraud on the court through its activities against the court's officer, Mr. Berry. I.e., RTC's lawyer, Mr. Moxon, and his agents committed some dozens of felonies directed against my lawyer, Mr. Berry. These actions were designed to interfere with Mr. Berry's ability to represent me during the course of the underlying case, and that this abuse rose well beyond the level required to invoke Rule 60(b) (6). 5. What issues are you raising on appeal? Error of law, abuse of descretion. The Cipriano and Berry declarations were uncontroverted. A ruling which goes against plainly uncontroverted evidence is an error an law and an abuse of descretion. Also as an error of law, relief from the contempt judgment was improperly denied as untimely under Rule 60(b) (3) when it was clearly filed less than a year after judgment. 6. Did you present all these issues to the district court? Not error of law or abuse of descretion since they arose as a result of the judgment. All other issues were presented in the motion, the reply and the exhibits. 7. What law supports these issues on appeal? (You may, but need not, refer to cases and statutes.) BATEMAN, v. UNITED STATES POSTAL SERVICE; No. 99-15394, Ninth Circuit (http://laws.findlaw.com/9th/9915394.html) " . . . we lament the decline of collegiality and fair-dealing in the legal profession today, and believe courts should do what they can to emphasize these values." Granting relief from a judgment due to outright criminal activities by one parties' officers of the court directed at the other side of this case would be a good start. I doubt this court wonders why the disclosed criminal acts--reported in the media--have not been prosecuted. Few United States Attorneys or District Attorneys (and none in Los Angeles) are willling to go up against the litigation and intimidation machine with which this court is all too familiar. Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988) (finding that district court abused its discretion in denying Rule 60(b) relief and granting relief directly rather than remanding to district court); Hibernia Nat'l Bank v. Administracion Cent.Sociedad Anonima, 776 F.2d 1277, 1281 (5th Cir. 1985) (granting Rule 60(b) relief after finding that district court abused its discretion). United States v. Washington, 98 F.3d 1159, 1163 (9th Cir. 1996). "Here, the district court abused its discretion by failing to apply each of the factors set forth in Briones in determining whether the conduct of appellant's counsel was excusable. As noted by the majority, the district court failed to make findings regarding 'the prejudice to the defendant, the length of the delay, and its potential impact in the proceedings, and whether [appellant's counsel] acted in good faith.:" (Emphasis added.) This is perhaps the most extreme case of an attorney acting in bad faith ever presented to the courts. 8. Do you have any other case pending with this court? If so, give the name and docket number of each case. None.
9. Have you filed any previous cases which have been decided by this court? If so, give the name and docket number of each case. RTC vs. Henson 97-16160 RTC vs. Henson 98-17120 RTC vs. Henson 99-16660, 99-16756 Henson vs. IRS No. 99-17030.
10. N/A Defendant requests the court to admit the Cipriano Declaration (and exhibits) as unopposed evidence, and either rule on the Rule 60 issues or remand the case to the district court for an evidentiary hearing and reconsideration and take such other actions as would be just.
Respectfully submitted,

H. Keith Henson, pro se
December 13, 2000