On Mon, 30 Jul 2001 06:19:05 GMT, hkhenson@home.com (Keith Henson) wrote: After looking at more of this stuff, I think this is actually a reply to a separate document filed by Stan, which may have been late. This is a separate issue--their "withdrawal of reference" (a related case). Notice that they are putting all their eggs in the one basket now--the disentitlement doctrine.


Elaine M. Seid, SBN 72588 MCPHARLIN, SPRINKLES & THOMAS LLP Ten Almaden Blvd., Ste. 1460 San Jose, CA 95113 Telephone: (408) 293-1900
Thomas R. Hogan, SBN 042048 Leslie Holmes, SBN 192608 LAW OFFICES OF THOMAS R. HOGAN Ten Almaden Blvd., Ste. 535 San Jose, CA 95113 Telephone: (408) 292-7600
Samuel D. Rosen, Esq. PAUL, HASTINGS, TANOFSKY & WALKER LLP 75 East 55th Street New York, NY 10022-3206 Telephone: (212) 318-6000
Helena K. Kobrin, SBN 152546 MOXON & KOBRIN 3055 Wilshire Blvd., Ste. 900 Los Angeles, CA 90010 Telephone: (213) 487-4468
Attorneys for Creditor RELIGIOUS TECHNOLOGY CENTER
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
ln re H. KEITH HENSON, ) U.S.D.C. No. C 01-20493 RMW
Debtor.
CASE NO.: 98-51326ASW-13 (Chapter 13)
REPLY IN SUPPORT OF MOTION TO WITHDRAW REFERENCE TO THE BANKRUPTCY COURT AND MOTION TO STRIKE "DECLARATION" OF H. KEITH HENSON
Date: August 3,2001
Time: N/A Ctrm: Hon. Ronald M. Whyte
Debtor H. Keith Henson's ("Henson") brief and his "declaration" filed in opposition to RTC's Motion to Withdraw the Reference ("Motion") should be rejected out of hand by
REPLY IN SUPPORT OF MOTION TO WITHDRAW REFERENCE TO THE BANKRUPTCY COURT AND MOTION TO STRIKE "DECLARATION" OF H. KEITH HENSON 1 [end of p. 1] ------------------- the Court pursuant to the Fugitive Disentitlement Doctrine. (*See* Creditor's Motion to Dismiss Debtor's Chapter 13 Petition Pursuant to the Fugitive Disentitlement Doctrine.) Because Henson is a fugitive, he is not entitled to argue his position before this Court in absentia. Moreover, even were he not a fugitive, Henson's unsigned, unsworn "declaration" is improper under 28 U.S.C. § 1746.
Furthermore, even assuming *arguendo*, the Court were to consider Henson's arguments, they would provide no reason to deny RTC's Motion, as further addressed below.
Withdrawal Of the Reference Is Appropriate
Henson's Opposition suggests that the reference should not be withdrawn because this Court would then be mired in mundane banicruptcy matters such as motions for relief from the automatic stay or fee applications. The suggestion is disingenuous.
First, there are no motions for relief from the automatic stay on the horizon, for the simple reason that there are no proceedings pending outside of the bankruptcy court itself which would be a predicate for any new application to lift stay.
Second, respecting fee applications, Henson's counsel filed an application on May 23, 2001, and on June 11, 2001, the bankruptcy court approved it. RTC is aware of no one else who is planning to, or who is entitled to, file a fee application.
The actual issue that needs addressing here is whether Henson's case should be dismissed pursuant to the Fugitive Disentitlement Doctrine, an entirely non-core issue, the decision of which has everything to do with judicial economy, and which cannot be brought before Judge Weissbrodt while the appeal of his recusal denial remains pending. It is important that the Fugitive Disentitlement motion be brought expeditiously, so that further resources are not wasted in dealing with the chapter 13 petition of a person who is not entitled to bankruptcy relief in a court of the United States. Should that motion be denied, the next motion for the Court to take up would be RTC's motion to dismiss this chapter 13 or convert to chapter 7. That motion, which was filed in August 2000, is fully briefed and ready to be tried in an evidentiary hearing, or (as
REPLY IN SUPPORT OF MOTION TO WITHDRAW REFERENCE TO THE BANKRUPTCY COURT AND MOTION TO STRIKE "DECLARATION" OF H KEITH HENSON 2 [end of p. 2] ---------------- RTC submits is appropriate), simply granted on the papers given that Henson has failed to present any evidence requiring an evidentiary hearing.
Henson's attorney suggests that the Fugitive Disentitlement Doctrine is inapplicable under the facts of this case. The cases are to the contrary. First, the Fugitive Disentitlement Doctrine has specifically been applied in a bankruptcy case to prevent a debtor who has disappeared from appealing an action of the bankruptcy court. *In re Donald Sheldon & Co., Inc.*, 1997 WL 728415, *4 (S.D.N.Y. 1997). Second, the situation here is like that in *Prevot v. Prevot*, 59 F.3d 556, 575 (6th Cir. 1995), *cert. denied*, 516 U.S. 1161, 116 S.Ct. 1048 (1996), where, even though the defendant's flight occurred with respect to another case, the court found a nexus between the case that it dismissed and the earlier case that had occasioned the flight on the basis that they were "related components of a general scheme" and that "[f]light was but one step, and [his federal claim] the latest link, in a chain of proximately related events . . ." A similar, proximately related series of events are Henson's criminal case - in which he was convicted for a hate crime against churches of Scientology, which include RTC (*see* Ex. A to Declaration of Warren MeShane in support of moving papers), and has now been sentenced, alternatively, to one year in prison or six months in prison, plus three years probation, for his hate crime, and faces an additional six months for failing to appear for sentencing - his flight to avoid sentencing, and this bankruptcy case.
The efficient use of judicial resources and prevention of delay. *Security Farms v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers*, 124 F.3d 999, 1008 (9th Cir. 1997), suggests that it is appropriate for the Fugitive Disentitlement motion to be decided as rapidly as possible, and not delayed because a recusal appeal is pending. Furthermore, where, as here, ajudge has developed and expressed personal opinions on matters - in this case, making statements questioning the religious nature of the Creditor and its scriptures, the value of the jury's copyright award, and a copyright owner's right to decide when and whether to publish its works - a district court may withdraw the reference "in the interests of efficient judicial administration." *Crown Leasing Corp. v.
REPLY IN SUPPORT OF MOTION TO WITHDRAW REFERENCE TO THE BANKRUPTCY COURT AND MOTION TO STRIKE "DECLARATION" OF H. KEITH HENSON 3 [end of p. 3] --------------- Johnson-Allen*, 70 B.R. 350 (E.D.Pa. 1987).[1] Conclusion For the reasons set forth in RTC's motion and herein, the reference to the bankruptcy court should be withdrawn and this Court should order filed and proceed to decide Creditor's Motion to Dismiss Debtor's Chapter 13 Petition Pursuant to the Fugitive Disentitlement Doctrine. Dated: July 26, 2001 Respectfully submitted, LAW OFFICES OF THOMAS R. HOGAN
[signature] Thomas R. Hogan—
Attorneys for Creditor RELIGIOUS TECHNOLOGY CENTER ---------- [1] To the extent that Henson's attorney argues that the reference should not be withdrawn because if the case is converted to chapter 7, the Court will have to determine whether Henson's debts arising from "technical copyright violations" are dischargeable as the result of willful and malicious actions (Opposition at 4), he has the same two misapprehensions as Judge Weissbrodt, which is one of the very bases upon which recusal was sought. First, RTC has no idea what a "technical copyright violation" is, but it is surely a fact that neither this Court in awarding summary judgment of infringement, nor the jury that found the infringement willful and awarded close to the maximum of statutory damages, found Henson's infringement to be a "technical violation." Second, like Judge Weissbrodt, Henson fails to appreciate that the occasion of a bankruptcy does not give rise to a right to collaterally attack and undermine the integrity of a judgment of willful - not technical - infringement entered by this Court on ajury verdict, affirmed by the Ninth Circuit, and denied *certiorari* by the United States Supreme Court.
REPLY IN SUPPORT OF MOTION TO WITHDRAW REFERENCE TO THE BANKRUPTCY COURT AND MOTION TO STRIKE "DECLARATION" OF H. KEITH HENSON 4 [end of document]