November 4, 1998 PLAINTIFF'S MOTION TO ALTER THE PLEADINGS IN THIS MATTER AS PER UNITED STATES MAGISTRATE JUDGE JOHN M. MASON'S ORDER, DATED OCTOBER 15, 1998, in LAMBROS vs. FAULKNER, Civil No. 98-1621. Twenty five (25) pages in length.
JOHN GREGORY LAMBROS, #00436-124
PO Box 1000
Leavenworth, Kansas 66048-1000
http://members.aol.com/Lambrosb1 (final digit number 1)
ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FALCONER, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA
ATTORNEY SHEILA REGAN FALCONER, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA
FALCONER & FALCONER, Attorneys-at-Law, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA;
JOHN & JANE DOE'S, persons employed by Attorney C.W. Faulkner, Sheila Regan Faulkner and Faulkner & Faulkner in the representation of John Gregory Lambros;
Defendant's (Severally and jointly liable).
CIVIL CASE NO.
DEMAND FOR TRIAL BY JURY, Title 28 USC Rule 38 & 39.
COMPANION CASE NO.
U.S. vs. LAMBROS, Criminal File No. CR-4-89-82(05), District of Minnesota, Eighth Circuit Court of Appeals No. 65 F.3d 698 (1995).
PLAINTIFF'S MOTION TO ALTER THE PLEADINGS IN THIS MATTER AS PER UNITED STATES MAGISTRATE JUDGE JOHN M. MASON'S ORDER, DATED OCTOBER 15, 1998
COMES NOW JOHN GREGORY LAMBROS, (hereinafter Plaintiff, in propria
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persona, and moves this Court to permit the filing of the following consolidated SUPPLEMENTAL INFORMATION pursuant to United States Magistrate Judge John M. Mason's ORDER, dated October 15, 1998:
a. MOTION TO SUPPLEMENT THIS DECLARATORY JUDGMENT ACTION/COMPLAINT PURSUANT TO FRCP 15(a), dated July 20, 1998;
b. SECOND MOTION TO SUPPLEMENT THIS DECLARATORY JUDGMENT ACTION/ COMPLAINT PURSUANT TO FRCP 15(a), dated August 20, 1998;
c. MOTION BY PLAINTIFF FOR SUBSTITUTION OF PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES W. FAULKNER FOR DECEASED DEFENDANT CHARLES W. FAULKNER. [F.R.C.P. RULE 25(a)(1)], dated September 15, 1998.
(Docket sheet entry Nos. 7, 9, and 16, as per Plaintiff's telephone conversation with the U.S. Clerk's office on or about October 22, 1998)
Plaintiff Lambros adopts the above listed motions in there entirety as to reasoning and law, as exhibits and/or attachments to this writing, as they are currently filed with the Court and Defendants have been served copy of same.
This filing of SUPPLEMENTAL INFORMATION is pursuant to Federal Rules of Civil Procedure 15(a) and the Courts October 15, 1998, ORDER.
1. Plaintiff originally filed this action on June 17, 1998.
2. Plaintiff incurred difficulty in serving Defendants originally due to Defendant's counsel's use of a noncurrent address and Defendants constant refusal to except pleading. This information has been presented to the Court within several pleadings and the motions listed as a, b, and c on the top of this page. To date Plaintiff has not requested sanctions be imposed upon Defendants as to there conduct, but preserves the right.
3. Plaintiff has served ADMISSIONS on the following persons and companies over thirty (30) days ago for the purpose of this action:
a. June 15, 1998, REQUEST FOR ADMISSIONS FROM DEFENDANT SHEILA REGAN FAULKNER. EXHIBIT AA (7 pages)
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b. July 28, 1998, REQUEST FOR ADMISSIONS FROM: LARRY PEBBLES, c/o BURNETT REALITY, 13608 - 80th CIRCLE, MAPLE GROVE, MINNESOTA 55369. EXHIBIT BB (6 pages)
c. July 28, 1998, REQUEST FOR ADMISSIONS FROM: LAW OFFICE MANAGEMENT INC., SUITE 500, 701 FOURTH AVENUE SOUTH, MINNEAPOLIS, MINNESOTA 55415. EXHIBIT CC (4 pages)
d. August 13, 1998, REQUEST FOR ADMISSIONS FROM: THE PARVUS COMPANY, 8403 COLESVILLE ROAD, SUITE 610, SILVER SPRINGS, MARYLAND 20910. EXHIBIT DD (7 pages)
e. August 22, 1998, REQUEST FOR ADMISSIONS FROM: CYNTHIA COLLETT, PRESIDENT OF COLLETT ENTERPRISES, 6708 NORTH MONROE, SPOKANE, WASHINGTON 99208. EXHIBIT EE (5 pages)
f. August 24, 1998, REQUEST FOR ADMISSIONS FROM: RICHARD STARK, PRESIDENT OF SmartAds AND STARK COMMUNICATIONS, 6094 PERIMETER LAKES DRIVE, DUBLIN, OHIO 43016. EXHIBIT FF (6 pages)
g. September 7, 1998, REQUEST FOR ADMISSIONS FROM: SEITLIN & COMPANY, AN OFFICERS/DIRECTORS RICHARD JOHNSON, STEPHEN M. JACKMAN, AND BARRY LADIS, SUITE 200, 2001 NW 107th AVENUE, MIAMI, FLORIDA 33172. ( A KIDNAP, RANSOM & INSURANCE COMPANY). EXHIBIT GG (5 pages)
4. The scope of discovery is specified in Rule 26. Discovery is not limited to matters that would be admissible at the trial. Any document or thing that is relevant to the subject matter of this action may usually be inspected pursuant to Rule 34.
5. RULE 36 GOVERNS REQUESTS EOR ADMISSIONS. A party may serve upon any other party a written request for ADMISSIONS, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relates to statements or opinions of fact or of the application of law to fact including the genuineness of any document described in the request.
6. ALL OF THE ABOVE ADMISSIONS are admitted as TRUE, as none of the above parties served ADMISSIONS answered or responded to date.
7. The U.S. Supreme Court made it clear that federally appointed counsel is subject to suit for MALPRACTICE. See, FERRI vs. ACKERMAN, 444 US 193, 62 L.Ed.2d 355, 100 S.Ct 402 (1979).
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8. On October 26, 1998, Plaintiff requested this Court for a "MOTION TO COMPEL DEFENDANT ATTORNEY SHEILA REGAN FAULKNER TO ANSWER FIRST SET OF WRITTEN INTERROGATORIES PROPOUNDED UNDER RULES 34(b), 37(a), and 69(a) FRCP, FOR ORDER TO COMPEL." Served by Plaintiff to Court and Attorney Johnson on October 27, 1998.
9. Plaintiff Lambros respectfully requests the following information, facts, and/or issues to SUPPLEMENT his already pending above-entitled action as to guarantee the payment to repair damages/injuries caused to Plaintiff, by Defendant's, as to LEGAL MALPRACTICE, which includes claims of (a) breach of duty; (b) failure to exercise due diligence; (c) negligence; (d) improper advice; (e) failure to interview and/or subpoena witnesses; (f) failure to consult with and/or communicate regularly with client; and (g) failure to understand or know or apply the law.
FIRST SUPPLEMENTAL ISSUE, INFORMATION AND/OR FACTS:
10. Attorney Charles W. Faulkner and Defendant's FAILED TO (1) file motion(s) suppressing testimony obtained in VIOLATION OF TITLE 18 U.S.C. SECTION 201(c)(2) and MINNESOTA RULES OF PROFESSIONAL CONDUCT. Therefore denying Plaintiff a judgment of acquittal on all criminal charges due to legally insufficient evidence to support Plaintiff's conviction, a new trial would of been PROHIBITED by double jeopardy principles.
11. The issues before this Court and the forthcoming jury trial are (1) whether the government's conduct during the criminal trial of Plaintiff was PROHIBITED either by Title 18 U.S.C. §201(c)(2) or MINNESOTA RULES OF PROFESSIONAL CONDUCT; (2) if it was, whether the testimony of the following witnesses should have been suppressed:
a. Lawrence Pebbles, transcript testimony on pages 48 thru 189;
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b. Tracy Greer, transcript testimony on pages 245 thru 347;
c. Pamela Lemon, transcript testimony on pages 382 thru 467;
d. Michael Ayd, transcript testimony on pages 581 thru 607. and
(3) whether the record contains sufficient evidence to remand for new trial.
STATUTORY CONSTRUCTION OF TITLE 18 U.S.C. §201(c)(2):
12. Section 201(c)(2) could not be more clear. It says:
WHOEVER . . . directly or indirectly, gives, offers or promises anything of value to any person, for or because of testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceedings, before any court . . . authorized by the laws of the United States to hear evidence or take testimony . . . shall be fined under this title or imprisoned for not more than two years, or both.
(Title 18 U.S.C. §201(c)(2)) (quoting U.S. vs. SINGLETON, 144 F.3d 1343 (10th Cir. 1998)(On July 10, 1998, the Tenth Circuit vacated the SINGLETON opinion and granted a rehearing en banc. Although at this writing SINGLETON is no longer of precedential value, Plaintiff adopts in its entirety the reasoning of the SINGLETON court.)
13. The class of persons who can violate the statute is not limited "WHOEVER" completes the following elements commits a crime. 18 U.S.C. §201(c)(2) First, the statute requires a gift, offer, or promise, either direct or indirect, to a person. Second, the gift, offer or promises must be "of value." Third, the gift, offer, or promise must be made "for" or "because of" the person's sworn testimony at trial or other proceeding before an authorized court. The state of mind required to violate the statute is knowledge that the thing of value is given for or because of testimony. See, U.S. vs. CAMPBELL, 684 F.2d 141, 150 (D.C. Cir. 1982)(construing parallel subsection); U.S. vs. BREWSTER, 506 F.2d 62, 82 (D.C. Cir. 1974)(quoting U.S. vs. BREWSTER, 408 U.S. 501, 527 (1972)(same). (quoting SINGLETON)
14. The Tenth Circuit stated in SINGLETON that the United States Assistance Attorney, acting on behalf of the government, is within the statutory
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class "WHOEVER" as covered by the plain language and meaning of Title 18 U.S.C.
U.5. ATTORNEY THOMAS B HEFFELFINGER AND ASSISTANT U.5. ATTORNEY DOUGLAS R. PETERSON MADE "AT LEAST" THE FOLLOWING PROMISES IN CRIMINAL VIOLATION 0F TITLE 18 U.S.C. SECTION 201(c)(2) THAT DEFENDANT'S DID NOT OBJECT TO:
15. U.S. Attorney's Heffelfinger and Peterson made AT LEAST the following Promises to LAWRENCE PEBBLES for his testimony against Plaintiff Lambros:
a. the promise not to prosecute Mr. Pebbles for certain offenses;
b. the promise to inform U.S. Chief Judge Diana Murphy of his cooperation;
c. maximum sentence of eighteen (18) years from a potential life sentence on drug charges and unknown amount on tax charges.
(Attached are pages 56, 57, & 58 of criminal trial transcripts to prove above statements) EXHIBIT HH
16. U.S. Attorney Heffelfinger and Peterson made AT LEAST the following promises to TRACY GREER for her testimony against Plaintiff Lambros:
a. the promise not to prosecute Ms. Greer for certain drug and possibly tax offenses;
b. payment of money;
c. the promise to inform the district court of her cooperation;
d. the promise of a maximum sentence of five (5) years from a potential sentence of fifteen (15) years on drug charges;
e. Plaintiff Lambros consulted the legal statute which states Ms. Greer could of received more than one (1) life sentence. Therefore, Ms Greer lied to the court.
(Attached are pages 286, 287, & 288 of criminal trial transcripts to prove above statements.) EXHIBIT II
17. U.S. Attorney's Heffelfinger and Peterson made AT LEAST the following
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promises to PAMELA LEMON for her testimony against Plaintiff Lambros:
a. the promise not to prosecute Ms. Lemon for certain offenses, both drug and tax;
b. the promise to inform the district court of her cooperation;
c. Ms. Lemon only served two (2) months in a halfway house (jail?) from a maximum sentence of more than one (1) life sentence. Ms. Lemon was listed in three counts within the drug conspiracy indictment.
(Attached are pages 443, 444, & 445 of criminal trial transcripts to prove above statements) EXHIBIT JJ
18. U.S. Attorney Heffelfinger and Peterson made AT LEAST the following promises to MICHAEL AYD for his testimony against Plaintiff Lambros:
a. the promise to inform the district court of his cooperation;
b. "a new plea agreement under which he testified against a co-defendant and a defendant [Plaintiff Lambros] in another trial in exchange for a substantial sentence reduction - a recommended 188 - month sentence instead of MANDATORY LIFE." See, U.S. vs. AYD, 25 F.3d 624, 627 (8th Cir. 1994).
c. possibly the promise not to prosecute Mr. Ayd for certain offenses.
(Attached is page 600 of criminal trial transcripts to prove above statements) EXHIBIT KK
19. Total pages of Plaintiff Lambros' trial transcript is approximately 959 pages.
20. Total pages of testimony from PEBBLES, GREER, LEMON, AND AYD is approximately 354 pages. Therefore, U.S. Attorney's Heffelfinger and Peterson OBTAINED IN VIOLATION of Title 18 Section 201(c)(2), 354 pages of testimony that was to be SUPPRESSED DURING TRIAL. "[T]he principle reason behind the adoption
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of the exclusionary rule was the Government's failure to observe its own laws. "U.S. vs. RUSSELL, 411 U.S. 423, 430 (1973)(quoting MAPP vs. OHIO, 367 U.S. 643, 659 (1961).
21. The exclusionary Rule has been applied to constitutional, STATUTORY, and procedural rule violations to deter unlawful conduct. See, U.S. vs. BLUE, 384 U.S. 251, 255 (1966). The Supreme Court itself has applied the rule to various STATUTORY VIOLATIONS, see, SABBATH vs. U.S., 391 U.S. 585, 586, 588-90 (1968); MILLER vs. U.S., 357 U.S. 301, 313-14 (1958); NARDONE vs. U.S., 302 U.S. 379, 380 84 (1937), and has held open this application while denying use of the rule for certain regulatory violations, see, U.S. vs. CACERES, 440 U.S. 741, 754-55 & fn.
21 (1979). Likewise the EIGHTH CIRCUIT COURT OF APPEALS has held suppression appropriate where FEDERAL STATUTES HAVE BEEN VIOLATED. See, U.S. vs. MARTS, 986 F.2d 1216, 1218-19 (8th Cir. 1993).
22. Suppression is a judicially fashioned rule whose primary purpose is to deter official misconduct. See, U.S. vs. PELTIER, 422 U.S. 531, 542 (1975); U.S. vs. CALANDRA, 414 U.S. 338, 347-48 (1974).
THE STRUCTURE OF SECTION 201:
23. The statute at issue in this case, §201(c)(2), is a gratuity prohibition, and like other gratuity provision in 5201(c)(2), IT CONTAINS NO REQUIREMENTS OF CORRUPTNESS OR INTENT TO INFLUENCE. See, JOHNSON, 621 F.2d at 1076; BREWSTER, 506 F.2d at 71-72; IRWIN, 354 F.2d at 197; GOLDEN DOOR JEWELRY CREATIONS, INC. vs. LLOYDS UNDERWRITERS NON-MARINE ASS'N, 865 F. Supp. 1516, 1523 (S.D. Fla. 1994), aff'd in part, rev'd in part, and remanded, 117 F.3d 1428 (11th Cir. 1997); (quoting SINGLETON.)
THE LAW ENFORCEMENT JUSTIFICATION:
24. In SINGLETON, "[T]he government asserts WITHOUT ARGUMENT OR
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AUTHORITY, that agreements for testimony between the government and a witness are not contemplated by this statute [§201(c)(2)]."
25. The Tenth Circuit stated in SINGLETON, "[B]ut we have found no case in which prosecutors, in their role as lawyers representing the government after the initiation of criminal proceedings, have been granted a justification to violate generally applicable laws." See, U.S. vs. RYANS, 903 F.2d 731, 739-40 (10th Cir.)(holding that disciplinary rule applies to prosecutors upon commencement of criminal proceedings), cert. denied, 498 U.S. 855 (1990). "[B]ecause the government's STATUTORY VIOLATION occurred not in field investigation but in the context of testimony which was to be presented to the court, we further hold its action was not "reasonable." BROGAN, 118 S.Ct. at 811.
26. The Tenth Circuit concluded in SINGLETON, "[W]e conclude the government's violation of §201(c)(2) was NEITHER "REASONABLE" NOR AN "ENFORCEMENT ACTION." BROGAN, 118 S.Ct. at 811.
MINNESOTA PROFESSIONAL RULES OF CONDUCT FOR ATTORNEY'S:
27. Plaintiff Lambros does not have a copy of the Minnesota Professional Rules of Conduct for Attorney's.
28. Plaintiff Lambros argues that the government violated the Minnesota Professional Rules of Conduct for Attorney's, as the Kansas Professional Rule 3.4(b), adopted by the Supreme Court of Kansas, provides, "A lawyer shall not . . . offer an inducement to a witness that is prohibited by law." Kansas Rule of Professional Conduct 3.4(b)(1997). Commentary to the Model Rules, as adopted by the Supreme Court of Kansas, states, "The common rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying . . ." Kansas Rule of Professional Conduct 3.4(b) cmt. (1997). We have already established, in agreement with our sister circuits, that intangible value can be equivalent to financial value, and that the promise of leniency is an equal or greater incentive to lie
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than cash. SINGLETON and U.S. vs. LOWERY, No. 97-368-CR-ZLOCH, Cited as: 1998 WL 493818, page 8. (S.D.Fla)
DEFENDANT'S DID NOT REQUEST OR SUBMIT A MOTION TO SUPPRESS TESTIMONY FROM WITNESSES PEBBLES, GREER, LEMON, OR AYD:
29. Defendant Charles W. Faulkner, Attorney Sheila R. Faulkner, Faulkner & Faulkner, and John and Jane Doe's DID NOT request or submit a motion to the Court to suppress the testimony of witnesses PEBBLES, GREER, LEMON, or AYD FOR A JUDGMENT OF ACQUITTAL AS TO ALL COUNTS WITHIN PLAINTIFF'S CRIMINAL INDICTMENT.
30. The record DOES NOT contain sufficient other evidence upon which a jury could find guilt beyond a reasonable doubt. If the evidence, excluding the testimony of PEBBLES, GREER, LEMON, and AYD, is legally insufficient to support Plaintiff Lambros' convictions, a new trial is prohibited by double jeopardy principles. See, U.S. vs. McALEER, 1998 WL 101804, at *4 (10th Cir. 1998)(citing BURKS vs. U.S., 437 U.S. 1, 18 (1978). If, however, the record contains sufficient evidence to support a conviction without PEBBLES, GREER, LEMON, or AYDTS testimony, then justice requires a new trial. See, U.S. vs. TATEO, 377 U.S. 463, 465 (1964) (quoting SINGLETON.)
PLAINTIFF LAMBROS HAS BEEN ILLEGALLY INCARCERATED SINCE JANUARY 1993 DUE TO DEFENDANT'S MALPRACTICE.
31. Plaintiff Lambros states that due to the LEGAL MALPRACTICE acts stated in paragraphs 10 thru 30, which include claims of (a) breach of duty; (b) failure to exercise due diligence; (c) negligence; (d) improper advice; (e~ failure to interview and/or subpoena witnesses; (f) failure to consult with and/ or communicate regularly with Plaintiff; and (g) failure to understand or know or apply the law, Plaintiff has been illegally incarcerated since January, 1993, the month Plaintiff Lambros' trial concluded.
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SECOND SUPPLEMENTAL ISSUE, INFORMATION AND/OR FACTS:
32. Attorney Charles W. Faulkner and Defendant's FAILED TO BE EFFECTIVE AND ALLOWED TO COURT TO ERROR THUS PLAINTIFF LAMBROS' DUE PROCESS RIGHTS WERE VIOLATED WHEN THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT CONVICTION ON COUNT ONE (1), TITLE 21 U.S.C. §§ 846, 841(a)(1) AND 841 (b)(l) A)(ii)
33. Plaintiff Lambros was indicted on multiple counts from a cocaine importing conspiracy.
34. Count One (1), the overarching conspiracy-to-distribute count under Title 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii). See, U.S. vs. LAMBROS, 65 F.3d 698, 700 (8th Cir. 1995).
35. Count Five (5), involved two (2) kilograms.
36. Count Six (6), involved two (2) kilograms.
37. Count Eight (8), involved two (2) kilograms.
38. Count One (1) violation under §841(b)(1)(A)(ii), requires the intent to distribute in EXCESS OF FIVE (5) KILOGRAMS OF A CONTROLLED SUBSTANCE IN "A SINGLE TRANSACTION." See, U.S. vs. BLACKSTOCK, 1998 WL 152926, (6th Cir. Mich.), where the court states: "Although BLACKSTOCK distributed 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);" U.S. vs. WINSTON, 37 F.3d 235, 240-41.
39. Plaintiff Lambros' presentence investigation report did not reveal that he distributed five or more kilograms of cocaine on any single occasion.
40. The indictment, as record evidence, does not state Plaintiff distributed and/or conspired to distribute five (5) or more kilograms of cocaine on
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any single occasion.
41. The Grand Jury was never presented with information as to Plaintiff's distribution and/or intent to conspire to distribute five (5) or more kilograms of cocaine on ANY SINGLE OCCASION.
42. The jury was never presented with information as to plaintiff's distribution and/or intent to conspire to distribute five (5) or more kilograms of cocaine on any single occasion.
43. Defendant's did not advise Plaintiff Lambros, Jury, U.S. Assistant Attorney or the Court that Count One (1) required "A SINGLE VIOLATION" of five (5) or more kilograms of cocaine. See, §841(b)(1)(A):
44. The Government never proved the essential single violation of more than five kilograms as required in Count One (1).
45. The record does not contain sufficient other evidence to support a conviction of Plaintiff on Count One (1). Therefore, a new trial would of been prohibited by double jeopardy principles if Defendants would of raised the above issue before sentencing and requested a new trial on Counts 5, 6, and 8, as the jury was left with a false impression and presented false information from the Grand Jury, Defendants, U.S. Assistant Attorney Douglas Ray Peterson, and Judge Murphy.
46. Plaintiff has attached as EXHIBIT LL, to this Motion a copy of an initial draft of the above information that will be submitted to the Courts for review in the near future, entitled "DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL AND/OR COURT ERROR MOVANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION ON COUNT ONE (1), TITLE 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)."
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PLAINTIFF LAMBROS HAS BEEN ILLEGALLY INCARCERATED SINCE JANUARY 1993 ON COUNT ONE (1) DUE TO DEFENDANT'S MALPRACTICE.
47. Plaintiff Lambros states that due to the LEGAL MALPRACTICE acts stated in paragraphs 32 thru 47, which include claims of (a) breach of duty; (b) (d) improper advice; (e) failure to consult with and/or failure to exercise due diligence; (c) negligence; failure to interview and/or subpoena witnesses; (f) communicate regularly with Plaintiff; and (g) failure to understand or know or apply the law, Plaintiff has been illegally incarcerated on Count One (1) since January, 1993, the month Plaintiff Lambros' trial concluded.
THIRD SUPPLEMENTAL ISSUE, INFORMATION AND/OR FACTS:
48. Attorney Charles W. Faulkner and Defendant's FAILED TO BE EFFECTIVE AND ALLOWED THE COURT TO ERROR, THUS PLAINTIFF LAMBROS' DUE PROCESS RIGHTS WERE VIOLATED AS TO COUNTS FIVE (5), SIX (6), AND EIGHT (8), AS THE INDICTMENT WAS LEGALLY INSUFFICIENT TO COMPLY WITH THE GRAND JURY INDICTMENT CLAUSE OF THE FIFTH AMENDMENT.
49. Defendant's failed to make pretrial objections to the sufficiency of the indictment, RULE 12(b)(2), Federal Rules of Criminal Procedure as to Counts 5, 6, & 8.
50. Defendant's failed to make a request for a BILL OF PARTICULARS pursuant to RULE 7(b), Federal Rules of Criminal Procedure to obtain more definite information as to Counts 5, 6, and 8.
51. Plaintiff Lambros was charged by the GRAND JURY on or about May 17, 1989, as to Title 18, United States Code, Section 2(a) and Title 21 United States Code, Section 841 in Counts Five (5), Six (6), and Eight (8). EXHIBIT MM
52. Title 18, U.S.C. Section 2 states:
§ 2. Principals
(a) Whoever commits an offense against the United States
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or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principle.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principle.
53. The Honorable Diana E. Murphy, Chief United States District Judge, on January 15, 1993, OFFERED JURY INSTRUCTIONS TO THE JURY in Plaintiff Lambros' criminal case, OFFERING THE CORRECT READlNG OF TITLE 18 U.S.C. 5 2(a): (Trial Transcript page 941, Volume VII, EXHIBIT NN .)
In a case where two or more persons are charged with the commission of a crime, the guilt of any defendant may be established without proof that he personally did every act constituting the offense charged.
Whoever commits its an offense against the United States or aids, abets, counsels, commits ands, induces or procures its commits omissions, is punishable as a principle.
54. The 1997 Edition of the FEDERAL CRIMINAL CODE AND RULES states under the HISTORICAL AND STATUTORY NOTES for Title 18 United States Code, Section 2: EXHIBIT OO
The Section as revised makes clear the legislative intent to punish as a principle not only one who directly commits an offense and one who "AIDS, ABETS, COUNSELS, COMMANDS, INDUCES, OR PROCURES" another to commit an offense, but also anyone who causes the doing of an act which if done by him directly render him guilty of an offense against the United States.
55. Count Five (5) stated, "On or about the 8th day of July, 1987, in the State and District of Minnesota, the defendants, JOHN GREGORY LAMBROS, and PAMELA RAE LEMON, . . ."
56. Count Six (6) stated, "On or about the 23rd day of October, 1987,
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in the State and District of Minnesota, the defendants, JOHN GREGORY LAMBROS, and PAMELA RAE LEMON, . . ."
57. Count Eight (8) stated, "On or about the 22nd day of December, 1987, in the State and District of Minnesota, the defendants, GEORGE FREDERICK ANGELO a/ka "RAPID RICK," and JOHN GREGORY LAMBROS, . . ."
58. Count Five (5), Six (6), and Eight (8) all further stated:
each aiding and abetting the other, did knowingly and intentionally possess with intent to distribute approximately two kilograms of cocaine, a Schedule II controlled drug substance; all in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B), and Title 18, United States Code, Section 2(a).
59. In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur. See, U.S. vs. APFELBAUM, 63 L Ed 2d 250, 263-64.
60. An ABETTOR is one "who, with MENS REA . . . commands, counsels, or otherwise encourages the perpetrator to commit the crime." PERKINS, CRIMINAL LAW, at 645 (2nd ed. 1969). See, U.S. vs. BARNETT, 667 F.2d 835, 841 (9th Cir. 1982)
61. Title 18 U.S.C. Section 2, is a "SUBSTANTIVE OFFENSE." See STANDEFER vs. U.S., 64 L Ed 2d 689 (1980).
62. Title 18 U.S.C. Section 2 is presently the creation of two distinct acts of congress. Section 2(a) was created and codified by the Acts of Mar. 4, 1909. Whereas Section 2(b) was created and added to §2 in 1951. Each is distinct and contains differing elements.
63. Within Plaintiff Lambros' indictment the words COUNSELS, COMMANDS, INDUCES, and PROCURES WERE OMITTED FROM THE INDICTMENT IN COUNTS FIVE (5), SIX (6), AND EIGHT (8), THUS MAKING THE INDICTMENT FATALLY DEFECTIVE. See, U.S. vs. CAMP, 541 F.2d 737, 739-40 (8th Cir. 1976) (The statute under which the indictment was
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returned, 18 U.S.C. §111, begins: Whoever FORCIBLY assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 . . . (Italics added). The word "FORCIBLY" was omitted from the indictment, and we conclude that the omission requires a reversal of the conviction.) (The grand jury did not see or participate in preparing the bill of particulars or the trial court's instructions to the petit jury, so neither the bill of particulars nor the instruction supply assurance that the grand jury charged the defendant with having acted forcibly.) (Even if some shade of factual inference were warranted, it would not reach the standard of HAMLING vs. U.S., 41 L Ed 2d 590 (1974), that the "WORDS of themselves fully, directly, and expressly, without any uncertainty or ambiguity,") SET FORTH ALL THE ELEMENTS NECESSARY TO CONSTITUTE THE OFFENSE ..."(This reasoning is consistent with Rule 7 of the Federal Rules of Criminal Procedure, which requires both that an indictment "be a plain, concise, and definite written statement of the essential facts constituting the offense charged" and that an indictment "state for each count the . . . citation of the statute . . . which the defendant is alleged therein to have violated." The rule's wording makes two requirements - the statement of the essential facts and the citation of the statute.)
64. The Eighth Circuit also stated in U.S. vs. DENMON, 483 F.2d 1093 (8th Cir. 1973), that the failure of the indictment to charge that the defendant acted KNOWINGLY, UNLAWFULLY, and WILLFULLY was fatally defective to the government's prosecution. Therefore, the Court held that the indictment was legally insufficient to comply with the grand jury indictment clause of the FIFTH AMENDMENT.
65. The Eighth Circuit again stated that, "It is generally sufficient THAT AN INDICTMENT SET FORTH THE OFFENSE IN THE WORDS OF THE STATUTE ITSELF, as long as 'those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished."' quoting, HAMLING vs. U.S., 418 U.S. 87, 117 (1974).
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See, U.S. vs. MILLER, 774 F.2d 883, 884-85 (8th Cir. 1985).
66. U.S. vs. ZANGGER, 848 F.2d 923, 925 (8th Cir. 1988) (Because the "statutory citation [appearing in Zangger's indictment] does not ensure that the grand jury has considered and found all essential elements of the offense charged," see PUPO, 841 F.2d at 1239, the indictment violates Zangger's fifth amendment right to be tried on charges found by a grand jury, see CAMP, 541 F.2d at 740-)
67. In conclusion, Attorney Charles W. Faulkner and Defendant's DID NOT make pretrial objections to the sufficiency of the indictment as to Counts Five (5), Six (6), and Eight (8), as to the omitted words COUNSELS, COMMANDS, INDUCES, and PROCURES, within the indictment, thus making the indictment fatally defective, as per Title 18 U.S.C. Section 2(a). Thus legal malpractice occurred when Attorney Charles W. Faulkner and Defendant's did not file objections to the sufficiency of the indictment, Rule 12(b)(2), Federal Rules of Criminal Procedure and made no request for a bill of particulars pursuant to Rule 7(b), Federal Rules of Criminal Procedure to obtain more definite information. Plaintiff Lambros' FIFTH AMENDMENT protection of being called to answer only upon a grand jury indictment was eroded by allowing the courts to supply missing elements of the charged offense in Counts 5, 6, and 8. (Please note that in cases involving an omission of an essential element of an offense in a Fifth Amendment frame, liberality or fairness in determining related Sixth Amendment issues is precluded. See, DENMON, 483 F.2d 1093, 1098 (8th Cir. 1973).
PLAINTIFF LAMBROS HAS BEEN ILLEGALLY INCARCERATED SINCE JANUARY 1993 ON COUNTS FIVE (5), SIX (6), AND EIGHT (8) DUE TO DEFENDANTS MALPRACTICE.
68. Plaintiff Lambros states that due to the LEGAL MALPRACTICE acts stated in paragraphs 48 thru 68, which include claims of (a) breach of duty; (b) failure to exercise due diligence; (c) negligence; (d) improper advice; (e) failure to interview and/or subpoena witnesses; (f) failure to consult with and/or
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communicate regularly with Plaintiff; and (g) failure to understand or know or apply the law. Plaintiff Lambros has been illegally incarcerated on Counts 5, 6, and 8 since January, 1993, the month Plaintiff Lambros' trial concluded.
EIGHTH CAUSE OF ACTION
RACKETEER INFLUENCED AND CORRUPT ORGANlZATION ACT
TITLE 18 U.S.C. §1962(d)
TITLE 18 U.S.C. §1964(c)
69. Plaintiff Lambros offers this Eighth Cause of action in addition to and not to replace any other cause of action in this Declaratory Judgment and/or Complaint. Plaintiff as a pro se litigant is unschooled in the complexities of RICO LITIGATION and requests this court to supplement Plaintiff's style of writing as to the presentation of this claim so as not to negate legal value nor destroy the positive merits of all of Plaintiff's other claims.
70. From on or about June 17, 1992, to on or about February, 1994, Defendant's Attorney Charles W. Faulkner, Attorney Sheila Regan Falconer, Falconer & Falconer, John & Jane Doe's, and other unknown persons acting in association, knowingly, intentionally, and willfully, joined, agreed and CONSPIRED to, and did so, form an enterprise made up of Attorney Charles W. Falconer as its leader, and various named and unknown named employees of Falconer & Falconer, and others, as members of said enterprise, with its principle purpose to function as an enterprise through the organizational structure of Falconer & Falconer, to by and through its members carry out a pattern of racketeering activities as a common scheme to intimidate, corruptly coerce, and corruptly persuade witnesses and clients in official
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proceedings to withhold, fabricate and falsify evidence, information, testimony, and AUTHORIZED and/or ALLOWED predicate acts of racketeering, Title 18 U.S.C. §201(c)(2) (relating to bribery), Title 18 U.S.C. §1503 (relating to Obstruction of Justice), and Title 18 U.S.C. §1512 (relating to tampering with a witness, victim, or an informant), as defined with "racketeering activity" under Title 18 U.S.C. §1961, to cover-up certain legal and illegal activities of other acting in aid thereof, all in violation of Title 18 U.S.C. 1962(d), the CONSPIRACY CLAIM WITHIN RICO.
71. Title 18 U.S.C. Section 1962(d) states: "[I]t shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section."
72. Plaintiff Lambros states that he was INJURED "by reason of" a violation of Section 1962. Title 18 U.S.C. §1964(c).
73. The criminal conduct by all Defendant's in violation of §1962, directly and/or indirectly, injured Plaintiff Lambros' business and/or property. See, OLD TIME ENTERS, INC, vs. INTERNATIONAL COFFEE CORP., 862 F.2d 1213 (5th Cir. 1989) ("proximate causal relationship"); GENTY vs. RESOLUTION TRUST CORP., 937 F.2d 899 (3rd Cir. 1991) ("RICO plaintiffs may recover damages for harm to business and property only, not physical and emotional injuries" resulting from the RICO violation); STAMP vs. BROWN, No. 81-C-1475, 1990 U.S. Dist. LEXIS 6688 (N.D.Ill. June 1, 1990) ("Because RICO is a statutory tort, 'causation principles that generally apply in tort cases apply in civil RICO cases"'; where RICO defendants were not responsible for causing corporate insolvency but only for concealing it, the sole recoverable damages are those attributable to "deepened insolvency").
74. Plaintiff Lambros' "LOSS OF PROFITS" included at the minimum his non-functioning and loss of contacts within the following careers that Plaintiff Lambros functioned and generated PROFITS: (a) licensed U.S. stockbroker; (b) U.S.
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and State of Minnesota approved Commodities trader and consultant that was sponsored for testing by the Cargil Corporation at the Minneapolis Grain Exchange in Minnesota; (c) investment banker that functioned in the U.S., Canada, Brazil, Argentina, Japan China, Sweden and Russia; (d) diamond consultant, education included passing of all home study programs in the area of diamonds from the worlds leading school in diamond education, the Gemological Institute of America in California; (e) Psychoanalysis Consultant, education included certification from the United States Department of Justice three year program. (a/k/a "SOCIAL ENGINEERING SKILLS"). LOST PROFITS may be recovered, where appropriate, subject to proof of proximate causation. See, e.g. ADVANCED BUSINESS SYS., INC. vs. PHILIPS INFORMATION SYS. CO, 750 F. Supp. 774 (E.D.La. 1990); SOUND VIDEO UNLIMITED, INC. vs. VIDEO SHACK, INC., 700 F.Supp. 127 (S.D.N.Y. 1988), quoting DeMENT vs. ABBOTT CAPITAL CORP., 589 F.Supp. 1378 (N.D.Ill. 1984) ("if the 'damages sustained' by a victim of a RICO violation includes lost profits, we see no bar in the statute to recovery of those losses. Of course, recovery of lost profits should be subject to the ordinary limitations concerning remoteness (or proximate cause) and speculativeness (or certainty)").
75. Plaintiff claims that each Defendant by WORDS or ACTIONS, CONSPIRED to engage in a pattern of racketeering activities in violation of Title 18 U.S.C. §1962. Plaintiff also alleges the seven (7) constitutional elements: (1) that the Defendant's (2) through the commission of two or more acts (3) constituting 'pattern' (4) of racketeering activity (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an 'enterprise' (7) the activities of which affect interstate or foreign commerce. See, IN RE CRAZY EDDIE SECURITIES LITIGATION, 812 F.Supp. 338, 347 (E.D.N.Y. 1993).
76. Plaintiff Lambros states that Supreme Court Justice J. Kennedy
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stated in SALINAS vs. U.S., No. 96-738, 62 CrL 2010, 12/03/97, "To be convict of conspiracy to violate RICO under §1962(d), the conspirator NEED NOT HIMSELF HAVE COMMITTED OR AGREED TO COMMIT THE TWO OR MORE PREDICATE ACTS, such as bribery, requisite for a substantive RICO offense under 51962(c). Section 1962(d) which forbids "any person to conspire to violate" §1962(c) - is even more comprehensive than the general conspiracy provision applicable to federal crimes, §371, since it contains no requirement of an overt act or specific act to effect the conspiracy's object . . . IT SUFFICES THAT HE ADOPT THE GOAL OF FURTHERING OR FACILITATING THE CRIMINAL ENDEAVOR, AND HE NEED NOT AGREE TO UNDERTAKE ALL OF THE ACTS NECESSARY FOR THE CRIME COMPLETION."
77. Defendants used the U.S. POSTAL SERVICE to commit mail fraud, that is defendant's knowingly or intentional participation in scheme, the use of inter state mails and/or wire communications in furtherance of all court proceedings in the criminal trial of Plaintiff Lambros, (a) plea bargain negotiations; (b) Court Motions; (c) Freedom of Information Act requests, etc. Title 18 U.S.C.A. §§ 1341 & 1343.
78. Defendant's false and/or fraudulent information as to the actual legal sentence(s) Plaintiff Lambros could receive during CONTRACT plea bargain negotiations was neither isolated, nor sporadic, and constitute a pattern of racketeering activity. See, U.S. vs. HARVEY, 791 F.2d 294, 300 (4th Cir. 1986)(In the process of determining whether disputed PLEA AGREEMENTS have been FORMED or PERFORMED, courts have necessarily drawn on the most relevant body of developed rules and principles of private law, those pertaining to the formation and interpretation of COMMERCIAL CONTRACTS. See generally, WESTEN & WESTIN, A CONSTITUTIONAL LAW O REMEDIES FOR BROKEN PLEA BARGAIN, 66 Calif.L.Rev. 471 (1978)(analyzing cases in these terms.)
79. Plaintiff Lambros relied on Defendant's misrepresentation. There-
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fore, injury occurred by reason of Defendant's actions. Defendant's supplied false and/or fraudulent information for the guidance of Plaintiff, thus subject to liability to loss caused by defendant's. Plaintiff's justifiable reliance upon the information caused injury.
80. BROWN vs. LaSALLE NORTHWEST NATIONAL BANK, 820 F.Supp. 1078, 1079, Key Note 5 (N.D.Ill. 1993) (Borrower sufficiently alleged pattern of RICO activity to support CIVIL RICO CLAIM against bank which lent her money for automobile purchase by claiming that bank used numerous insurance agents and numerous auto mobile dealers to defraud numerous customers of their RIGHT TO NOTICES OF DEFENSES THEY HAD UNDER FEDERAL LAW AGAINST BANK'S COLLECTION OF LOANS ON AUTOMOBILE TRANSACTIONS THAT WENT BAD. 18 U.S.C.A. §1961 et seq.; Fed. Rules Civ. Proc. Rule 9(b), 28 U.S.C.A.)
81. Plaintiff Lambros supports the predicate acts by Defendants under Title 18 U.S.C. §201(c)(2), by adopting in there entirety the reasoning of the following courts: U.S. vs. SINGLETON, 144 F.3d 1343 (10th Cir. 1998); U.S. vs. LOWERY, No. 97-368-CR-ZLOCH, 1998 WL 493818 (S.D.Fla.); and U.S. vs. MAYS, No. 3:97-CR-127, MEMORANDUM OPINION, filed September 18, 1998, 10:49 AM, U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE, by the Honorable U.S. District Judge James H. Jarvis. (Even more recently, the Honorable W.J. Zloch granted a similar defense motion in U.S. vs. LOWERY, Id. . . . Judge Zloch has engaged in an extensive and through analysis of the identical issues before this court with respect to defendant's pending motion. IN FACT, IT WOULD BE DIFFICULT, IF NOT IMPOSSIBLE, FOR THIS COURT TO EXPRESS ITS OPINION ANY MORE ELOQUENTLY.)
82. Under these circumstances, there exists an almost certainty that said Defendant's and the enterprise will attempt to obstruct justice and further impact on interstate commerce.
83. During the course and in furtherance of said conspiracy and
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enterprise, Plaintiff Lambros requests this Court, Defendant's and/or offers as exhibits, thus incorporating, all pleadings within this action and all pleadings within companion case U.S. vs. LAMBROS, Criminal File No. CR-4-89-82(05), District of Minnesota, and Eighth Circuit Court of Appeals case, U.S. vs. LAMBROS, 65 F.3d 698 (8th Cir. 1995), among others, were committed under racketeering acts.
DAMAGES UNDER THE EIGHTH CAUSE OF ACTION - RICO - 18 U.S.C. §1962(d) CONSPIRACY CLAIM - PROVIDES FOR CIVIL REMEDIES IN FORM OF TREBLE DAMAGES. TITLE 18 U.S.C. §1964(c).
84. For Eighth (8th) Cause of Action $100 Billion U.S.;
85. Plaintiff Lambros incorporates all information as to his "LOSS OF PROFITS" from harm to his past, present, and future injury of his businesses and property as to those documented and recorded careers listed within paragraph 74.
86. Plaintiff is not educated as to legal formatting as to adjusting/recalculating the TOTAL DAMAGES, that is the combination of all causes of action within this action, and the correct procedure in the sum certain actual and punitive damages from each defendant due to injuries within the Eighth Cause of action. The bottom line is that Plaintiff Lambros is requesting/demanding $100 Billion U.S. as to the RICO CLAIM, from all Defendant's jointly.
87. Plaintiff Lambros, pro se shall certify, pursuant to Rule 11, Fed. R.Civ.P., that "to the best of his knowledge, information, and belief formed after reasonable inquiry of the Eighth (8th) Cause of action in this case, that all above facts are well grounded and are warranted by existing law."
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RULING ON MOTION UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 25(a)(1):
88. Federal Rules of Civil Procedure 25(a)(1) states that the court '~$AY" order substitution following the death of a party to a pending action. Therefore, substitution is not a matter of right, and a motion for substitution is addressed to the court's discretion. See, ANDERSON vs. YUNGKAU, 329 U.S. 482, 67 SCt 428, 91 LE 436 (1947).
89. Once service of the suggestion of death occurs, a motion to substitute must be made within 90 days. See, Fed.R.Civ.P. Rule 25(a)(1). Thus, by making a suggestion of death on the record, a party or the representative of the deceased party may limit the time within which a substitution motion may be made. See, HENKEL vs. STRATTON, 612 F.Supp. 190 (ND Ohio 1985). Failure to move for substitution within the 90 day period following service of the suggestion of death may result in dismissal of the action as to the deceased party. The formal service of suggestion of death is required even when all parties are aware of the death of a party. See, HENKEL vs. STRATTON, 612 F.Supp. 190.
90. Plaintiff was served formal service of Attorney Charles W. Faulkner's death by Leavenworth, Kansas Police on September 11, 1998, within the ANSWER of Sheila Regan Faulkner in this above-entitled action.
91. On September 15, 1998, served on this Court and Defendant's Attorney Donna Rae Johnson on September 18, 1998, Plaintiff filed a "MOTION BY PLAINTIFF FOR SUBSTITUTION OF PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES W. FAULKNER FOR DECEASED DEFENDANT CHARLES W. FAULKNER. [F.R.C.P. Rule 25(a)(1)], DATED SEPTEMBER 15, 1998."
92. On October 15, 1998, United States Magistrate Judge John M. Mason's ORDER stated the Plaintiff's Motion to alter pleadings, docket number 16 are denied without prejudice. Plaintiff contacted the Clerk via the telephone on October 22, 1998, and was informed that docket number 16 is Plaintiff's Motion under
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FRCP Rule 25(a)(1) as described in paragraph 91. In Judge Mason's MEMORANDUM he concluded that it would be preferable to have Plaintiff submit a single pleading.
93. Plaintiff has outlined Rule 25(a)(1) within this writing and will also submit a separate Motion under Rule 25(a)(1) as per this Plaintiff's reading and understanding of the rules.
94. Plaintiff first requests that this Court NOT DISMISS this action as to deceased Attorney Charles W. Faulkner, who appears within the heading o this action as the "ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA.
95. Defendant Sheila Regan Faulkner has notified Plaintiff Lambros that she is the personal representative of the estate of Charles W. Faulkner.
96. If this Court thinks it is legally correct to substitute Defendant Sheila Regan Faulkner as the legal substitute for the ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER, Plaintiff Lambros requests same under Rule 25(a)(1).
97. Plaintiff Lambros requests all liability against Attorney Charles W. Faulkner to continue in this action, thus not opposed if substitution or joinder is made unabated and does not create new relationships among the Defendant's.
98. Plaintiff Lambros requests that this action continue in the name of the original parties and all the transferee's be bound by this court's judgments.
I HEREBY STATE UNDER THE PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Title 28 U.S.C. §1746.
DATED: NOVEMBER 4, 1998
John Gregory Lambros, 00436-124
P.O. Box 1000
Leavenworth, Kansas 66048-1000
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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.