From: Keith Henson <hkhenson@netcom3.netcom.com>
Date: 21 Mar 2000 10:20:36 GMT
Message-ID: <8b7idk$h96$1@slb6.atl.mindspring.net>
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"sub·orn tr.v. sub·orned, sub·orn·ing,
sub·orns. 1. To induce (a person) to commit an unlawful or
evil act. 2. Law. a. To induce (a person) to commit perjury. b.
To procure (perjured testimony)."
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[...] Still draft, suggestions wellcome.
H. Keith Henson
P.O. Box 60012
Palo Alto, CA 94306
(650) 423-4040 (pager)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER, a ) Case No. C-96-20271RMW
California non-profit corporation, )
Plaintiff, )
) MOTION UNDER RULE 60(b)3,
) RULE 60(b)6 AND RULE 6.
v. ) RELIEF FROM JUDGEMENT
) DUE TO ADVERSE PARTY'S
H. KEITH HENSON, an individual, ) CRIMINAL MISCONDUCT.
) OPTIONAL REQUEST FOR
Defendant. ) EVIDENTIARY HEARING
____________________________________
BACKGROUND
In August of 1999, a little over a year after the judgmen
on the copyright issues in the underlying case, Mr. Robert
Cipriano stepped forward with a remarkable declaration (Exhibit
A, attached supporting documents 1-50) alleging criminal
activities; impersonating a police officer, blackmail, bribery
suborning perjury, perjury, and witness tampering, by the
plaintiff's private investigator, Eugene Ingram, and plaintiff's
lawyer, Kendrick Moxon, against Mr. Graham E. Berry. [add note
one here] The court will recall that Mr. Berry was the
defendant's lawyer for a period which included trial on both the
copyright and the contempt issues.
Rule 60 FRCP reads:
On motion and upon such terms as are just, the court may relieve
a party or a party's 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 by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b) ;
(3) *fraud* (whether heretofore denominated *intrinsic or
extrinsic)*, misrepresentation, or *other misconduct 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
reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken. A motion
under this subdivision (b) does not affect the finality of a
judgment or suspend its operation.
This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or
proceeding, or to grant relief to a defendant not actually
personally notified as provided in Title 28, U.S.C., 1655, *or
to set aside a judgment for fraud upon the court.*
Writs of coram nobis, coram vobis, audita querela, and bills of
review and bills in the nature of a bill of review, are
abolished, and the procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules or by
an independent action.
-------------------------------
It has been less than a year since judgment was issued on the
contempt issue, so an ordinary motion for reconsideration or
reversal of judgment can be made under Rule 60(b)(3) on the
contempt issue.
If the court considers the abuse of my counsel, Mr. Berry,
described below and in the exhibits, and organized by RTC
counsel Kendrick Moxon an "extraordinary circumstance" the court
could reconsider the RTC copyright judgment under FRCP 60(b)(6).
"A FRCP 60(b)(6) motion will be granted only in extraordinary
circumstances or under circumstances imposing extreme or undue
hardship." Holland v Virginia Lee Co. (1999, WD Va) 188 FRD
241.)
Also, after duly considering this matter, the court may decide
that the offenses amount to an "unconscionable plan or scheme
which is designed to improperly influence the court in its
decision." This would establish fraud on the court (First
Nat'l. Bank of Louisville v Lustig (1996, CA5 La) 96 F3d 1554.)
and invoke the inherent power of the court mentioned at the end
of Rule 60 to set aside a judgment for fraud upon the court.
Mr. Moxon's and Mr. Ingram's actions in hunting down, coercing,
bribing, and suborning perjury from Mr. Cipriano as detailed in
Exhibit A was certainly an "unconscionable plan or scheme. . .
designed to improperly influence the court in its decision."
The idea was to tie up Mr. Berry to the maximum extent possible,
leaving him little time to work on a number of cases against RTC
or other aspects of Scientology. Mr. Moxon's extrinsic fraud as
an attorney is applicable to this case even if he did not
formally appear before this court because it was the firm of
Moxon and Kobrin which represented RTC.
"While an attorney should represent his client with singular
loyalty, such loyalty does not demand that he act dishonestly or
fraudulently; on contrary, attorney's loyalty to court, as
officer thereof, demands integrity and honesty in dealing with
the court, and when he departs from such standard in conduct of
case, he perpetrates fraud upon the court." Kupferman v
Consolidated Research & Mfg. Corp. (1972, CA2 NY) 459 F2d 1072,
16 FR Serv 2d 160, 19 ALR Fed 747.
"Since attorneys are officers of court, their allegedly
dishonest conduct involving misrepresentation and perjury would
constitute fraud on court. H. K. Porter Co. v Goodyear Tire &
Rubber Co. (1976, CA6 Ohio) 536 F2d 1115, 191 USPQ 481, 21 FR
Serv 2d 1429
I believe the court will agree that what Mr. Moxon, Mr. Ingram,
and Mr. Rosen did in using Mr. Berry's sexual orientation to
attack him (Exhibit A, paragraph 16,17, 18, 20, 50, 51, and
especially 52, Cipriano's paraphrase, "Let's get Berry because
he lives a gay lifestyle") is not only fraud, but evidence of a
hate crime. Mr. Rosen even tried to intimidate Mr. Berry in the
court room at trial. (Exhibit B.)
Paragraph 75 of Exhibit A provides evidence of the subversion of
Mr. Berry law firm partners.
As is described in Mr. Berry's declaration (Exhibit C) the
effect of the campaign against him (which goes well beyond the
material in Exhibit A) seriously degraded his ability to defend
me, the defendant in this case.
Further, during the period before trial, some even before
summary judgment was issued, my time and energy was massively
diverted by unwarranted RTC funded lawsuits which I was forced
to answer in Clearwater, Florida, and in Los Angeles and
Riverside counties in California.
As was pointed out in my (pro bono, cert. denied) appeal to the
Supreme Court, (Exhibit D, top of page 22) there were major
points I missed arguing in the copyright case, particularly in
the matter of "transforming."
"Here it is beyond dispute that Henson's open letter to the
District Court 'adds something new, with a further purpose and
different character,' altering NOTs 34 with 'new expression,
meaning or message.' Petitioner embedded NOTs 34 in a letter
openly protesting the injunction issued by the District Court in
the Ward action and added information about court orders
expressly forbidding Scientology to claim that the use of e-
meters can heal. He did so to support his assertion that
Scientology was engaged in illegal conduct. Petitioner's open
letter thus *transforms* NOTs 34 from a set of directions for
purportedly 'handling physical conditions' into a scathing
attack on Scientology for allegedly practicing medicine without
a license, defrauding its converts, and using the courts to
harass and intimidate critics.'
(Scientology proved my concerns were well founded by
subsequently being indicted in Florida for the illegal practice
of medicine in the gruesome death of Lisa McPherson, details at
www.lisamcpherson.org. There are countless web sites about
Scientology defrauding its converts, www.xenu.net being a prime
one. And the attached exhibits detail the abuse of critics
using the court system.)
We will never know if the time and resources diverted by
Scientology's attacks through the legal system and their extra
legal activities would have resulted in a better defense if they
had not been so diverted.
My paid witness, Gerry Armstrong was prevented by a state court
from testifying in my case even if this court had permitted me
witnesses. (Exhibit E.)
"For 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. v Fox Theatres Corp.
(1960, SD NY) 182 F Supp 18, 3 FR Serv 2d 98.
"'Fraud upon the court' which would warrant relief should
embrace only that species of fraud which interferes with court's
discharge of its judicial functions such as bribery or
corruption of court, its officers or jury." Great Coastal
Express, Inc. v International Brotherhood of Teamsters, etc.
(1980, ED Va) 86 FRD 131, 110 BNA LRRM 2052, 29 FR Serv 2d 1181,
remanded without op (CA4 Va) 639 F2d 780, later app (CA4 Va) 675
F2d 1349, 110 BNA LRRM 2058, 93 CCH LC P13447, 33 FR Serv 2d
1234, cert den 459 US 1128, 74 L Ed 2d 978, 103 S Ct 764, 112
BNA LRRM 2280, 95 CCH LC P 13933.
Mr. Moxon's organized and expensive harassment of Mr. Berry as
detailed by Mr. Cipriano were certainly corrupt, and go well
beyond the standards permitted by any court for one attorney to
treat another. Mr. Moxon's close relation with RTC does not
preclude him from this standard because his name appears as
counsel on numerous filings before this court.
"While attorney should represent his client with singular
loyalty, such loyalty does not demand that he act dishonestly or
fraudulently; on the contrary, attorney's loyalty to court, as
officer thereof, demands integrity and honesty in dealing with
court, and when he departs from such standard in conduct of
case, he perpetrates fraud upon court." Kupferman v
Consolidated Research & Mfg. Corp. (1972, CA2 NY) 459 F2d 1072,
16 FR Serv 2d 160, 19 ALR Fed 747.
"Since attorneys are officers of court, their allegedly
dishonest conduct involving misrepresentation and perjury would
constitute fraud on court." H. K. Porter Co. v Goodyear Tire &
Rubber Co. (1976, CA6 Ohio) 536 F2d 1115, 191 USPQ 481, 21 FR
Serv 2d 1429.
While the *exposure* was exceptional, the harassment of Mr.
Berry and myself by RTC are sadly not unusual events for people
involved as critics of Scientology. Grady Ward has a Rule 60
motion pending before Judge Fogle on the matter of RTC
interfering post settlement with his legal right of access to
the courts and his ability to earn a living. I believe it was a
goal of RTC to preclude him from making the monthly settlement
payment to them, thus invoking the liquidated damage clause.
RTC has through pickets, invasion of my client's work place,
abusive bankrupty depositions, and the agency of their web site
www.parishioners.org done what they could to prevent *me* from
making a living. RTC has certainly encouraged more legal fees
in my bankruptcy case than the judgment and legal fees combined.
They are paying for judicially sanctioned punishment.
All of these examples stem from written Scientology "fair game"
and litigation policy which is applied "religiously" by the
plaintiff RTC and its associated corporations.
***************
"Never fear to hurt another in a just cause."
-- L. Ron Hubbard, Creation of Human Ability (Code of Honor)
[My source: Excalibur Revisited by Geoffrey C. Filbert]
***************
PENALTIES FOR LOWER CONDITIONS
[...]
ENEMY SP Order. Fair game. May be deprived of property or
injured by any means by any Scientologist without any discipline
of the Scientologist.
May be tricked, sued or lied to or destroyed.
-- L. Ron Hubbard
HCOPL 18 Oct 1967
***************
The law can be used very easily to harass, and enough harassment
on somebody who is simply on the thin edge anyway, will knowing
that he is not authorized, will generally be sufficient to cause
his professional decease.
If possible, of course, ruin him utterly.
-- L. Ron Hubbard
A Manual on the Dissemination of Material
***************
Thousands of incidents similar to the attacks on Mr. Berry, Mr.
Ward and me stretch over decades of time, and the geographic
scope is worldwide. They range up to kidnappings (Roxanne
Friend, Terry Finley) which were not prosecuted because the
victims were in such bad psychological shape and reported events
of being confined and no one talking to them for months were so
insane sounding that they were not believed.
I don't expect this court to sanction RTC/Scientology for its
activities in other cases and places, but the law *does*
recognize that a pattern of behavior is significant (i.e., RICO
cases).
The abuse of Mr. Berry was done according to policy. Not only
was it done to policy, it was implemented by RTC's in house
legal counsel, Mr. Moxon. The court may consider the abuse of
Mr. Berry organized by RTC counsel Kendrick Moxon and Sandy
Rosen an "extraordinary circumstance." If it so finds, the
court could reconsider the RTC copyright judgment under FRCP
60(b)(6). "A FRCP 60(b)(6) motion will be granted only in
extraordinary circumstances or under circumstances imposing
extreme or undue hardship." Holland v Virginia Lee Co. (1999, WD
Va) 188 FRD 241.)
It certainly seems extraordinary to the defendant who was unable
to find case law outside of Scientology cases pertaining to
similar abuse of a defendant's lawyer.
"The facts are as follows: On January 20, 1993, the special
master awarded attorneys' fees [$2.9 million], first under the
Lanham Act finding the case exceptional because the plaintiffs'
[RTC] have abused the federal court system by using it, inter
alia, to destroy their opponents, rather than to resolve an
actual dispute over trademark law or any other legal matter.'"
(Unpublished 1996 9th Circuit case RTC vs. Scott, 1996, full
text at http://www.xenu.net/archive/CourtFiles/occf8.html)
Eventually, the United States Justice system is going to have to
stop supporting the abusive and criminal activities of
Scientology. Other countries, France, England, Belgium, Spain,
Germany and Greece have taken steps to curb the abuses, in the
case of France, calling for the dissolution of Scientology
there. (Exhibit F) The Belgiums also have taken steps in this
direction. (Exhibit G)
For the abuse detailed above and in the Exhibits, defendant
petitions the Court under Rule 60(b)(3) and Rule 60(b)(6) to
reverse the judgments in the copyright and contempt matters this
court has ruled on.
Defendant further petition the court for sanctions against RTC
for all his scientology related legal expenses from the date of
filing of this case. Even with sanctions, this would be a
relief to RTC, because their policy requires them to continue to
harass me through the courts and far less expensive than the
millions the Erlich case cost them.
If this motion is contested by RTC, or if, after due
consideration, there is any doubt in the court's mind that fraud
on the court was perpetrated by plaintiff, RTC and plaintiff's
lawyer Kendirck Moxon, then I requests that an evidentiary
hearing be held as provided under the FRCP. Mr. Berry has
indicated his willingness to appear, Mr. Cipriano would be
available, and the court has authority to force the appearance
of Mr. Moxon, Ms Kobrin, and Mr. Rosen. There are two
additional witnesses the court may wish to call which may be
detailed later.
To the extent there are statements of fact in this document,
they are true to the best of my knowledge and are made under
penalty of perjury under the laws of the United States.
Respectfully submitted,
H. Keith Henson
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