March 16, 2000, Lambros' letter to Attorney Stenmoe (two (2) pages) and three attachments. (a) February 1, 2000, Plaintiff Lambros' RESPONSE TO DEFENDANTS' SECOND MOTION FOR JUDGEMENT ON THE PLEADINGS OR SUMMARY JUDGEMENT, AND MEMORANDUM IN SUPPORT. Both dated January 19, 2000, (19 pages in length); (b) February 1, 2000, LEGAL CASES to support Lambros' right to effective assistance of counsel at plea bargaining in correctly advising Lambros of potential maximum sentence, (4 pages in length); (c) March 1, 2000, "PLAINTIFF LAMBROS REQUESTS LEAVE OF THE COURT TO AMEND THIS PLEADING TO ADD NEW CLAIM THAT RELATES BACK TO ORIGINAL COMPLAINT." Federal Rules of Civil Procedure, Rule 15(a), (5 pages in length).

John Gregory Lambros
Reg. No. 00436-124
USP Leavenworth
P.O. Box 1000
Leavenworth, Kansas 66048-1000

Web site: vww.brazilboycott.org


Attorney Gregory J. Stenmoe

BRIGGS and MORGAN
2400 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
U.S. Certified Mail No. Z-233-381-612
RETURN RECEIPT REQUESTED


RE: YOUR MARCH 6, 2000 LETTER AND OUR TELEPHONE CONVERSATION ON MARCH 16, 2000. LAMBROS vs. FAULKNER, et al., Civil No. 98-1621(DSD/JMM).

Dear Mr. Stenmoe:

As per our telephone conversation this morning, I'd like to again thank you and BRIGGS and MORGAN for volunteering your services and participation in the Federal Pro Se Project at the Volunteer Lawyers Network (VLN) in Minneapolis, Minnesota, as per U.S. Magistrate Judge John M. Mason's ORDER dated January 26, 2000, in LAMBROS vs. FAULKNER, et al., Civil No. 98-1621(DSD/JMM).

It appears from Judge Mason's January 26, 2000 filed ORDER that we are in a holding pattern as to any type of discovery and motions being filed until. further ORDER from the Court. Therefore, allowing you to catch-up on past filing within this action that initially started on or about July, 1998.

I believe you stated that you would be requesting copy of the docket sheet and all filings within this case from the Clerk. I have placed some of the filings, without exhibits, within my web site www.brazilboycott.org, thus enabling you to review same before you receive your copy from the Clerk. One of the reasons for placing the documents within my web site was to allow me to have access to the documents during the forthcoming trial.

Before receiving Judge Mason's ORDER file dated January 26, 2000, I was in the process of responding to defendants SECOND MOTION FOR JUDGEMENT ON THE PLEADINGS OR SUMMARY JUDGEMENT IN SUPPORT dated January 19, 2000. Therefore, I am attaching the following documents for your review and SUPPLEMENTAL FILINGS TO THE COURT in conjunction with your filings:

1. February 1, 2000, PLAINTIFF LAMBROS' RESPONSE TO DEFENDANTS' SECOND MOTION
FOR JUDGEMENT ON THE PLEADINGS OR SUMMARY JUDGEMENT, AND MEMORANDUM IN SUPPORT.

BOTH DATED JANUARY 19, 2000. This document is 19 pages in length.

End of page 1

2. February 1, 2000, LEGAL CASES TO SUPPORT LAMBROS' RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT PLEA BARGAINING IN CORRECTLY ADVISING LAMBROS OF POTENTIAL MAXIMUM SENTENCE. This motion is four (4) pages in length.

3. March 1, 2000, PLAINTIFF LAMBROS REQUESTS LEAVE OF THE COURT TO AMEND
THIS PLEADING TO ADD NEW CLAIM THAT RELATES BACK TO ORIGINAL COMPLAINT.
FEDERAL RULES OF CIVIL PROCEDURE, RULE 15(a). This motion is five (5)
pages in length.

I would greatly appreciate if you and your firm will keep me advised as to your legal theories and forward copy of all your intended filings to the court to me first so we may consult as to same. It is my belief, and correct me if I'm wrong, that my past legal filings within this case that have sustained defendants MOTION TO DISMISS and SUMMARY JUDGEMENT, merit your consideration in this request.

DEFENDANTS' INSURANCE COMPANY: Defendants are trying to use jurisdiction to dismiss this suit. Although I've used Civil RICO for jurisdiction among other jurisdictional elements, I believe that the defendants' INSURANCE COMPANY must be added as defendants in this action, thus jurisdiction. Please review my December 13, 1999, PLAINTIFFS MOTION REQUESTING COURT TO COMPEL DEFENDANTS' TO DISCLOSE NAMES AND ADDRESSES OF ALL INSURANCE COMPANIES THAT MAY HAVE LIABILITY FOR CLAIMS WITHIN THIS ACTION, SO PLAINTIFF MAY FILE ATTACHMENTS ON INSURANCE CONTRACTS. Federal Rules of Civil Procedure, Rule 64. Also, my May 3, 1999, letter to Attorney Donna Rae Johnson and Attorney Deborah Ellis as to Defendant Faulkner's INSURER'S DUTY TO DEFEND. This letter was filed with the court and has been used as an EXHIBIT within pleadings. Total of two (2) pages.

The other area defendants are using to try to dismiss this action is HECK vs. HUMPHREY, 129 L.Ed.2d 383 (1994). In HECK, the Supreme Court addressed the question of whether a state prisoner could challenge the constitutionality of his state court CONVICTION in a §1983 suit for damages. First, the Eighth Circuit overturned my Count I sentence. See, U.S. vs. LAMBROS, 65 F.3d 698 (8th Cir. 1995). Second, I AM NOT CHALLENGING THE LAWFULNESS OF MY CONVICTION. Third, both the THIRD & TENTH CIRCUIT have recently distinguished HECK vs. HUMPHREY, thus allowing me to recover damages against defendants. See, NELSON vs. JASHUREK, 109 F.3d 142, 145-146 Ord Cir. 1997); and MARTINEZ vs. CITY OF ALBUQUERQUE, 184 F.3d 1123, 1125 (10th Cir. 1999). 1 address this issue and many others within my February 1, 2000, motion PLAINTIFF LAMBROS' RESPONSE TO DEFENDANTS' SECOND MOTION FOR JUDGEMENT ON THE PLEADINGS OR SUMMARY JUDGEMENT, AND MEMORANDUM IN SUPPORT. BOTH DATED JANUARY 19, 2000, which is attached for your review and SUPPLEMENTAL FILING TO THE COURT IN CONJUNCTION WITH YOUR FILINGS.

Again, please contact me with any questions and I'll write and/or telephone you in the next two (2) weeks. Thanking you and your firm for you assistance in this matter.

Signed: John G. Lambros

P.S. PLEASE READ, STATE vs. PANG, 940 P.2D 1293 (Wash. 1997) as to BRAZILIAN LAW.

End of Letter to Stenmo

JOHN GREGORY LAMBROS

Plaintiff

vs.

CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER

SHEILA REGAN FAULKNER

FAULKNER & FAULKNER, Attorneys at Law

and

JOHN & JANE DOE

Defendants

CIVIL CASE NO.
98-1621 (DSD-JMM)

AFFIDAVIT FORM

PLAINTIFF LAMBROS' RESPONSE TO DEFENDANTS' SECOND MOTION FOR JUDGEMENT ON THE PLEADINGS OR SUMMARY JUDGEMENT, AND MEMORANDUM IN SUPPORT. BOTH DATED JANUARY 19, 2000.

COMES NOW, JOHN GREGORY LAMBROS, Plaintiff, Pro Se, in the above entitled action, stating in AFFIDAVIT FORM, opposition to Defendants' Motion and Memorandum of Law in support, "DEFENDANTS' SECOND MOTION FOR JUDGEMENT ON THE PLEADINGS OR SUMMARY JUDGEMENT," and "DEFENDANT'S MEMORANDUM IN SUPPORT OF DEFENDANTS' SECOND MOTION FOR JUDGEMENT ON THE PLEADINGS OR SUMMARY JUDGEMENT," both dated January 19, 2000, and signed by Defendant's attorneys DONNA RAE JOHNSON and DEBORAH ELLIS.

Plaintiff requests this Court to note that NONE of the documents submitted within the above described pleadings by Defendants on January 19, 2000, were in AFFIDAVIT FORK OR SIGNED BY AIRY OF THE DEFENDANTS listed within the heading of this action. See, KAUFFMAN vs. JOHNSON, 454 F.2d 264 (3rd Cir. 1972) (all statements made by defendants' COUNSEL in briefs CANNOT BE BASES OF SUMMARY JUDGEMENT.) Therefore, this court CANNOT consider factual ASSERTIONS that are

End of page 1

not sworn affidavit or a declaration under penalty of perjury.

This Court as the FACTFINDERS IN THIS CASE may legally draw ADVERSE INFERENCES AGAINST THOSE PARTIES WHO REFUSE TO TESTIFY, RESPOND TO ADMISSIONS INTERROGATORIES, and PERSONALLY SIGN ALL PLEADINGS/MOTIONS SUBMITTED TO THE COURT ON THERE BEHALF. See, BAXTER vs. PALMIGIANO, 425 U.S. 308, 318-20 (1976); LEFKOWITZ vs. CUNNINGHAM, 431 U.S. 801, 808 n.5 (1977) (In CIVIL PROCEEDINGS, the Fifth Amendment DOES NOT FORBID FACT FINDERS FROM DRAWING ADVERSE INFERENCES AGAINST A PARTY WHO REFUSES TO TESTIFY.) See, U.S. vs. FRANCISCO SOLANOGODINES, No. 96-10255, page 8549 (9th Cir. 1997).

I, JOHN GREGORY LAMBROS, declares under penalty of perjury the following:

1. 1 am the plaintiff in this above-entitled action. I make this declaration in the opposition to Defendants' attorneys' pleadings dated January 19, 2000, as described above.

2. Plaintiff Lambros denies each and every material allegation contained in the above-entitled pleadings submitted by Defendants attorneys' dated January 19, 2000, except as hereinafter may be expressed and specifically admitted.

3. This Court must assume that all the facts and exhibits within Plaintiff's initial complaint and all filings and exhibits filed to date are
true, as all where filed in AFFIDAVIT FORM, See, ROTH STEEL PRODUCTS vs. SHARON
STEEL CORP., 705 F.2d 134, 155 (6th Cir. 1982), and must construe Plaintiff's
factual AFFIDAVIT FORM allegations as to all filings in the light most favorable
to this Plaintiff. See, SCHEUER vs. RHODES, 416 U.S. 232, 236 (1974).

4. Both the Ninth and Second Circuit have stated that Pro Se litigants, such as Plaintiff, should RECEIVE NOTICE OF THE DEFICIENCIES in their complaint as well as an OPPORTUNITY TO AMEND them before the complaint is

End of page 2

dismissed. See, McGUCKIN vs. SMITH, 974 F.2d 1050, 1055 (9th Cir. 1992); PLATSKY vs. CIA, 953 F.2d 26, 28 (2nd Cir. 1991).

5. The Supreme Court has stated that a plaintiff with an "ARGUABLE" claim should be permitted to amend the complaint before a pending motion to dismiss is ruled on. See, NEITZKE vs. WILLIAMS, 490 U.S. 319, 329 (1989)

SUMMARY - JUDGEMEMT:

6. Summary judgement is to be granted to defendants' if the record before this court shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgement as a matter of law." See, Rule 56(c) FRCP (If there is no genuine factual issue, summary judgement does not violate the right to a jury trial, since the purpose of trials is only to decide factual issues.) See, PLAISANCE vs. PHELPS, 845 F.2d 107, 108 (5th Cir. 1988).

7. A "material" fact is one that "MIGHT AFFECT the outcome of the suit under the governing law . . . Factual disputes that are irrelevant or unnecessary will not be counted." See, ANDERSON vs. LIBERTY LOBBY, INC., 477 U.S. 242, 248 (1986); GRAY vs. YORK NEWSPAPERS, INC., 957 F.2d 1070, 1078 (3rd Cir. 1992).

8. A "genuine" issue exists "if the EVIDENCE is such that a reasonable jury could return a verdict for the nonmoving party." See, ANDERSON vs. LIBERTY LOBBY, INC., 477 U.S. 242, 248 (1986).

9. In determining whether there is a genuine issue of material fact, this court must view ALL FACTS AND ALL REASONABLE INFERENCES IN FAVOR OF THIS PLAINTIFF. See, MATUSHITA ELECTRIC INDUSTRIAL CO., Ltd. vs. ZENITH RADIO CORP., 475 U.S. 574, 587 (1986); SMITH vs. MASCHNER, 899 F.2d 940, 949 (10th Cir. 1990) (Circumstantial evidence could create an issue of material fact barring summary judgement).

End of page 3

10. The Defendants' have stated that they DISPUTE facts that make a difference in this case, thus this Court must deny summary judgement, and the parties must proceed to trial to determine the facts. This Court is not supposed to decide disputed facts or access credibility on a summary judgement motion. See, WILSON vs. WILLIAMS, 997 F.2d 348, 350-51 (7th Cir. 1993); GRAY vs. SPILLMAN, 925 F.2d 90, 95 (4th Cir. 1991); TITRAN vs. ACKMAN, 893 F.2d 145, 147 (7th Cir. 1990).

DEFENDANT'S MEMORANDUM IN SUPPORT OF DEFENDANTS' SECOND NOTION FOR

JUDGEMENT ON THE PLEADINGS OR SUMMARY JUDGEMENT:


11. Defendants based there motions for judgement on the pleadings or summary judgement on: (1) immunity granted to public defenders under application of Minnesota law to plaintiff's causes of action; and (2) lack of any material fact in dispute to support allegation of RICO conspiracy. In reality, there are many material facts in dispute to support allegations of RICO conspiracy, et al.. Also, in fact, Federal Public Defenders do not have immunity under federal law. See, FERRI vs. ACKERMAN, 444 U.S. 193 (1979)/

12. PAGE 2: Defendants claim that plaintiff's amended complaint, THUS INCLUSIVE OF MINNESOTA LOCAL RULE 10.03 AND F.R.C.P. 10(c) as to ALL OTHER FILINGS IN THIS ACTION (See, Paragraph 18 in amended complaint), makes claim of legal malpractice against all the defendants in each of the fifteen (15) claims. In fact, Plaintiff offered a definition of LEGAL MALPRACTICE in paragraph fifteen (15) within the AMENDED COMPLAINT, which stated:

"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.

End of page 4

In fact, Plaintiff adequately specified the conduct of defendants included the acts of LEGAL MALPRACTICE within the law firm of FAULKNER & FAULKNER, and TRANSMITTED INFORMATION VIA INTERSTATE COMMUNICATION FACILITIES INCLUDING U.S. MAIL AND TELEPHONE. Please refer to CLAIM I, paragraph 24, and CLAIM II, paragraph 29. Due to the fact that this Plaintiff RELIED ON DEFENDANTS STATEMENTS AS TO PLEA AGREEMENT AND LEGAL ADVICE, that were communicated via mail and wire, both CLAIM I AND CLAIM II include mail fraud and wire fraud within a RICO ACTION, Title 18 U.S.C.A. H 1341, 1343, 1962. See, IN RE CRAZY EDDIE SECURITIES LITIGATION, 812 F-Supp. 338, 341 head note 24 (E.D.N.Y. 1993)(Investors that could not show that they relied on a company's securities could not show injury by reason of MAIL FRAUD or WIRE FRAUD, for purposes of the investors' Racketeer Influenced and Corrupt Organization Act (RICO). 18 USCA H 1341, 1343, 1962).

13. "RACKETEERING ACTIVITY" is defined to include, among other crimes, (i) any act which is indictable under Title 18 U.S.C. §1341 (relating to mail fraud), Title 18 U.S.C. 1343 (relating to wire fraud). A Civil RICO case which states that "[w]hile there is no requirement that the defendant personally mail a letter, the plaintiff must show l) that the defendant "caused" the mailing . . . and 2) that the mailing was for the purpose of executing the scheme or . . ."incidental to an essential part of the scheme."' See, IN RE CRAZY EDDIE SECURITIES LITIGATION, at 350.

14. Plaintiff also incorporates his response entitled, "PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS OF FOR SUMMARY JUDGEMENT, MEMORANDUM IN SUPPORT AND REQUESTED ORDER DATED APRIL 26, 1999, DATED MAY 19, 1999." Please note that pages 37 thru 41 relate exclusively to RICO violations of §§ 201, 1341, 1343, 1503, & 1512.

15. Plaintiff's CLAIM I is very similar to U.S. vs. EISEN, 974 F.2d 246, 247 Und Cir. 1992) Head Note 1, in which the Second Circuit stated,

End of page 5

. . . MISREPRESENTATION IN PLEADING AND PRETRIAL submissions were made in hope of fraudulently inducing settlement before trial, and alleged misconduct was intended to defraud the civil adversaries. Title 18 U.S.C.A. 11341.

Government in mail fraud prosecution need only
establish intent to harm; it is not required
to prove that victim was actually injured as
result of the scheme. Title 18 U.S.C.A. 11341
(U.S. vs. EISEN, 974 F.2d 246, 247 (Head notes 1 & 2) (2nd Cir. 1992)
16. Paragraph 116(a),(b), & (c) offered an overview of RICO CLAIMS filed in this case within Plaintiff's "PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGEMENT, MEMORANDUM IN SUPPORT AND REQUESTED ORDER DATED APRIL 26, 1999, DATED MAY 19, 1999.11 Under Rule 10(c) FRCP, as per paragraph 18 within Plaintiff's AMENDED COMPLAINT, makes all filing inclusive.

PAGE 3, OF DEFENDANTS MOTION "ARGUMENT 1":

17. Defendants' state that, "Mr. Faulkner as a court-appointed attorney/lawyer, is entitled to absolute immunity under applicable Minnesota law, which must be applied in this malpractice claim." This is not a true statement as the Minnesota Supreme Court stated in DZIUBAK vs. MOTT, 503 N.W. 2d 771, 772 (Aug. 6, 1993):

"[T]oday we are asked to decide whether the STATE PUBLIC DEFENDERS ARE IMMUNE FROM SUIT FOR MALPRACTICE. the Court held that STATE PUBLIC DEFENDERS ARE IMMUNE FROM SUIT FOR LEGAL MALPRACTICE. Defendant C.W. Faulkner was a FEDERAL PUBLIC DEFENDER and was not "STATE APPOINTED" or "STATE SUBSIDIZED." Therefore, Defendants can not qualify for immunity under Minnesota law, as no STATE APPOINTMENT OR MONIES are involved. See, PATTEN vs. RUTTGER, 1994 WL 200599 (Minn. App.) (If Ruttger was a public defender when he represented Patten, he is immune from Patten's legal malpractice suit . . . . This applies regardless of whether he was "STATE-APPOINTED" or "STATE

End of page 6

SUBSIDIZED." Quoting, DZIUBAK vs. MOTT, 503 N.W.2d 771, 777 (Minn. 1993))

PAGE 3 AND 4 OF DEFENDANTS MOTION "ARGUMENT 1":

18. Defendants' state "Absent plaintiff's RICO claim, this court
arguably lacks jurisdiction over plaintiff's claims of legal malpractice.
Plaintiff asserts that jurisdiction is conferred upon this court under 28
U.S.C. H 1331, 1332, 1441(b) and 1655. See paragraph 3 of Amended Compliant.
This is not a true statement and Defendants for some strange reason choose not to
state that Plaintiff included within his jurisdictional statement, paragraph 3,
Title 28 USCA If 2201 & 2202.

19. Plaintiff also stated within his jurisdictional statement that all legal proceedings occurred within a U.S. Federal Building, located on a federal enclave, thus federal jurisdiction.

20. Plaintiff also stated within paragraph four (4) of his AMENDED COMPLAINT that Jurisdiction is also found on the existence of Federal questions arising under particular statutes of U.S. Law, Brazilian Constitutional law, U.S. - BRAZILIAN EXTRADITION TREATY, State of Minnesota Constitution, common laws and the Minnesota Attorney's Code of Professional Responsibility. The STATE COURT OF MINNESOTA does not have the power to define FEDERAL QUESTIONS as they may conflict with state rules.

21. Defendant C.W. Faulkner was ADMITTED TO THE U.S. DISTRICT COURT OF MINNESOTA BAR as per LOCAL RULE LR83.5 (BAR ADMISSIONS). Therefore, this Court had EXCLUSIVE JURISDICTION of Defendants, as the Clerk of this Court would not be able to accept for filing any papers which did not contain the name of Defendant C.W. Faulkner, who was admitted to practice before this court. See, Local Rule 83.5(a). Local Rule 83.5(c) states, ". . . If admitted, the petitioner shall in open court take an OATH to support the Constitution and laws of the

End of page 7

United States, to discharge faithfully the duties of a lawyer, to BEHAVE uprightly and according to law and the recognized standards of ethics of the profession, and to COMPLY WITH THE RULES OF PROFESSIONAL CONDUCT AS ADOPTED BY THIS COURT."

22. LOCAL RULE 83.6 ATTORNEY DISCIPLINE provides JURISDICTION to this Court as to all misconduct or allegations of misconduct by Defendant C.W. Faulkner, et. al. See, LR83.6(l) JURISDICTION. (In THEARD vs. U.S., 354 U.S. 278 (1957), the Supreme Court held that while discipline imposed by a state "brings title deeds of high respect," it is not conclusively binding on the federal courts, which, in substance, must satisfy themselves that the attorney's underlying conduct warranted the discipline imposed. Id. at 282. For that reason, if there is to be effective discipline within the FEDERAL SYSTEM, effective and appropriate procedures must be developed. This rule is proposed to achieve that purpose as well as to achieve uniformity of procedure by the various federal courts.)

23. LOCAL RULE 83.10 SENTENCING PROCEDURE IN CRIMINAL CASES SUBJECT
TO THE SENTENCING REFORM ACT OF 1984: Defendant C.W. Faulkner et al. functioned
exclusively under LR83.10(a) PLEA AGREEMENT AND SENTENCING STIPULATIONS.
Prior to entry of the PLEA, counsel for the defendant and counsel for the govern
ment shall make every effort to resolve all MATERIAL DISPUTES in order to
minimize the necessity of an evidentiary hearing at the time of sentencing.

24. JOHN & JANE DOE(s): Plaintiff has requested that Defendants
disclose the names of there INSURANCE COMPANIES so Plaintiff may add them as
defendants within this action. Plaintiff believes Defendants INSURANCE COMPANIES
ARE NOT CITIZENS OF MINNESOTA. Thus, diversity of citizenship. PLEASE NOTE,
Plaintiff's May 3, 1999, U.S. Certified letter, Z-437-761-404, RETURN RECEIPT
REQUESTED and received, to Defendants Attorneys Johnson and Ellis, regarding
INSURER'S DUTY TO DEFEND. This letter was attached as an EXHIBIT within Plaintiff's

End of page 8

RESPONSE TO DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGEMENT, MEMORANDUM IN SUPPORT AND REQUESTED ORDER DATED APRIL 26, 1999, DATED MAY 11, 1999.

TITLE 28 U.S.C.A. If 2201, 2202: GOVERNMENT EMPLOYEES INS. CO. vs. DIZOL, 133 F.3d 1220, 1221 Head Note 13 (9th Cir. 1998) The Ninth Circuit stated, "[Wlhen other claims are joined with action for declaratory relief (e.g. bad faith, breach of contract, breach of fiduciary duty, recission, or claims for other monetary relief), district court should not, as general rule, remand or decline to entertain claim for declaratory relief; if federal court is required to determine issues of state law because of existence of non-discretionary claims, declaratory action should be retained to AVOID PIECEMEAL LITIGATION. Tile 28 U.S.C.A. 2201(a)."

26. LIENS: PROGRESSIVE CONSUMERS FEDERAL CREDIT UNION vs. U.S., 79 F.3d 1228 (1st Cir. 1996), Mortgagee could bring quiet title action under DECLARATORY JUDGEMENT ACT to determine priority of its mortgage as against - competing federal tax LIEN, where mortgagee did not challenge underlying federal tax assessment. Defendants C.W. Faulkner never challenged the COMMERCIAL LIEN that was filed against them by Plaintiff Lambros.

27. EXTRADITION: MANRIQUE CARRENO vs. JOHNSON, 899 F.Supp. 624
(S.D.Fla 1995) DECLARATORY JUDGEMENT that extradition statute was unconstitutional,
but enjoining only execution of surrender warrants for the two plaintiffs in
that case, had no effect on extradition proceedings as to another individual.

28. BRADY vs. BROWN, 51 F.3d 810, 816 (9th Cir. 1995) PENDENT
JURISDICTION over state claims exists when the federal claim is sufficiently
substantial to confer federal jurisdiction, and there is "A COMMON NUCLEUS
OF OPERATIVE FACTS BETWEEN THE STATE AND FEDERAL CLAIMS." The ultimate lack
of merit of the federal claim does not mean that pendent jurisdiction cannot
attach; the federal claim must be "ABSOLUTELY DEVOID OF MERIT OR OBVIOUSLY
FRIVOLOUS" to divest the court of pendent jurisdiction. The Court may retain
jurisdiction even if the federal claims over which it had original jurisdiction
End of page 9

are DISMISSED. The decision to retain jurisdiction over state law claims is within the district court's discretion, weighing factors such as ECONOMY, CONVENIENCE, FAIRNESS, and COMITY. . . . The doctrine of comity is based on "respect for the SOVEREIGNTY OF OTHER STATES OR COUNTRIES [BRAZIL]," and under it "the forum state will generally apply the substantive law of a foreign sovereign [BRAZIL] to causes of action which arise there." Therefore, this court will defer to BRAZILIAN LAW as to this Plaintiff's EXTRADITION AND APPLICATION TO PLAINTIFF'S PLEA AGREEMENT, TRIAL, AND SENTENCING.

PAGE 5, 6, 7, & 8 OF DEFENDANTS MOTION "ARGUMENT 1":


29. Defendants' continue there argument as to public defenders
immunity from legal malpractice, quoting FERRI vs. ACKERMAN, 444 U.S. 193 (1979).
This is not a true statement as Plaintiff has shown within paragraphs 11 13,
15, & 17 of this motion. Paragraph seventeen (17) is very explicit as to the
Minnesota Supreme Court statement in DZIUBAK vs.,MOTT, 503 N.W. 2d 771, 772
(August 6, 1993):

"[Tloday we are asked to decide whether the STATE PUBLIC DEFENDERS ARE IMMUNE FROM SUIT FOR MALPRACTICE.

the Court held that STATE Public Defenders are immune from suit for legal malpractice. Defendant C.W. Faulkner was a FEDERAL PUBLIC DEFENDER AND WAS NOT "STATE APPOINTED" or "STATE SUBSIDIZED." Therefore, Defendants CAN NOT qualify for immunity under Minnesota law, as no STATE APPOINTMENT or MONIES are involved. See, PATTEN vs. RUTTGER, 1994 WL 200599 (Minn. App.) (If Rutter was a public [.STATE] defender when he represented Patten, he is immune from Patten's legal malpractice suit . . . This applies regardless of whether he was "STATE-APPOINTED" or "STATE SUBSIDIZED." Quoting, DZIUBAK vs. MOTT, 503 N.W.2d 771, 777 (Minn. 1993).

End of page 10

PAGE 9 OF DEFENDANTS MOTION ARGUMENT 11- (Defendants are entitled to judgement in their favor on plaintiff's RICO claim.)


30. Defendants' state, "Attached to Ms. Faulkner's affidavit are
time records of Charles Faulkner indicating that HE ALONE WORKED ON MR. LAMBROS'
CASE." This is not a true statement, as the time records are not true and
Mr. Faulkner lied on same. Plaintiff has plainly shown that Defendant Faulkner
was assisted by National Legal Professional Associates, Attorney Orren, Attorney
Bailey, and Doctor Criqui. As Plaintiff is writing this response he does not
have access to his case files but is assured that documents on record provide
clear proof as to the assistance Defendant C.W. Faulkner received from the above
and others.

31. Defendants' state, "In Ms. Faulkner's affidavit she further
attests to the fact there was no "enterprise" or for that matter any concerted
effort or endeavor, which would have included her or an independent contractor,
to constitute racketeering activity." This is not a true statement, as Plaintiff
has clearly explained the "ENTERPRISE" aspect to Defendants within past filings
including Plaintiff's motion, "PART II-DELAYED FILING AS PER MOTION FOR EXTENSION
OF TIME-PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY
JUDGEMENT, MEMORANDUM IN SUPPORT AND REQUESTED ORDER DATED APRIL 26, 1999,
DATED MAY 19, 1999."

32. In fact, the Seventh Circuit offered an excellent opinion in McCULLOUGH vs. SUTER, 757 F.2d 142, Head Note I (7th Cir. 1985). "[S]ole proprietorship can be "ENTERPRISE" with which its proprietor can be "associated" within meaning of RICO making it unlawful for any person associated with enterprise engaged in interstate commerce to participate in conduct of enterprise's affairs through pattern of racketeering activity, AS LONG AS THERE ARE OTHER PEOPLE BESIDES PROPRIETOR WORKING IN ORGANIZATION. Title 18 USCA H 1961(4), 1962(c)."

End of page 11

This case is very similar to that of Plaintiff's as Defendant C.W. Faulkner, who under the name of FAULKNER & FAULKNER, offered legal representation on Plaintiff's behalf and used and U.S. Mail and Wire in violations of the federal statute. Plaintiff's exhibits and affidavits present questions of Defendants fraudulent activity that constitute a pattern of RICO, as that term is defined in the statute and that Defendant C.W. Faulkner conducted the affairs of FAULKNER & FAULKNER through this pattern and that Defendant C.W. Faulkner's conduct caused the injury to this plaintiff. Hence, Defendant Ms. Faulkner as a partner of FAULKNER & FAULKNER is associated with the enterprise. Also review, U.S. vs. EISEN, 974 F.2d 246 (2nd Cir. 1992) (Attorney's resignation of position "OF COUNSEL" in order to practice with another firm was not withdrawal from firm's RACKETEERING ACTIVITY CONSPIRACY." See, Head Note 37)

33. Defendant state on page 9, "[Algain plaintiff's RICO claim is
based upon a claim of malpractice AND IN PART UPON U.S. vs. SINGLETON, 144 F.3d
1343 (10th Cir. 1998)." This is a true statement when this Court incorporates
the acts of Defendants, and other so as members of said enterprise, with its
principle purpose to function as an enterprise through the organizational structure
of FAULKNER & FAULKNER, 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 proceedings to withhold,
fabricate and falsify evidence, information, testimony, USING INTERSTATE MAILS
AND/OR WIRE COMMUNICATIONS IN FURTHERANCE OF SCHEME (Title 18 USCA If 1341,
1343),
as to the predicate acts of racketeering including but not limited to, Title
18 USCA H 201 (relating to bribery), 1503 (relating to Obstruction of Justice),
and 1512 (relating to tampering with a witness, victim, or an informant), as
defined within "racketeering activity" under Title 18 USC §1961, to cover-up
certain legal and illegal activities of others acting in AID thereof, all in
violation of Title 18 USC §1962(c) & (d), of the CONSPIRACY CLAIM WITHIN RICO.

End of page 12

PAGE 10 OF DEFENDANTS MOTION "ARGUMENT 11":


34. The Defendants state that the Eighth Circuit has followed
the Tenth Circuit's holding in the en banc decision, U.S. vs. ALBANESE, 195
F.3d 389 (8th Cir. 1999), hence, plaintiff's RICO claims fail whether based
upon malpractice or Title 18 USC §201(c)(2) and as such Claim VI in plaintiff's
amended complaint should be dismissed pursuant to Rule 12(c) or Rule 56(c) FRCP.
This is not a true statement as highlighted by Judge Heaney dissent in U.S. vs.
ALBANESE, 195 F.3d 389 (8th Cir. 1999), "1 find no reason to believe that testimony
bought for and paid for by the government is somehow immune from being CORRUPTED,
either by design or otherwise." (Id. at 398)

35. PLAINTIFF'S LEGAL MALPRACTICE AND RICO CIVIL SUIT DOES NOT CHALLENGE THE LAWFULNESS OF HIS CONVICTION. Plaintiff is challenging Defendants ACTS under RICO Title 18 U.S.C.A. Section 1961, "RACKETEERING ACTIVITY" RELATING TO . . . Therefore, it is totally irrational as to the theories defendants present as to the actions of a criminal cases.

36. "CONSPIRACIES" with federal officers also raises federal questions
within reach of the judicial power of this district court. See, SARMIENTO vs.
TEXAS BD. OF VETERINARY MEDICAL EXAMINERS BY AND THROUGH AVERY, 939 F.2d 1242
(CA5 1991); and see also, TRITSIS vs. BACKER, 355 F.S. 225 (D.C.Ill. 1973); and
compare, BIVENS vs. SIX UNKNOWN FED. NARC. AGENTS, 29 L.Ed.2d 619, 625-26 (1971).

37. The Supreme Court has held that "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purposes" . . . of "criminal" statutes where Congress intended [as here] civil enforcement as a private remedy." CORT. vs. ASH, 45 L.Ed.2d

26, 37-40 (1975).
38. In BROGAN vs. U.S., 139 L.Ed.2d 830, 837 (1998), the Supreme

End of page 13

Court, also held, inter alia, in relevant parts:

"But it is not, and CANNOT be, our practice to RESTRICT the unqualified language of a STATUTE to the particular evil that Congress was trying to remedy-even assuming that it is possible to identify the evil from something other than the text of the statute itself."

39. Moreover, the Supreme Court also recognized that no where
is the "remedial purposes" of a federally created right of action more "EVIDENT"
than in the RICO ACT'S CIVIL REMEDIES. SEDIMA S.P.R.L. vs. IMREX, 87 L.Ed2d
346, 359-360 (1985); and, U.S. vs. TURKETTE, 69 L.Ed.2d 246, 253-257 (1981).
Accordingly, this Court has followed TURKETTE in holding federal courts are
"WITHOUT AUTHORITY TO RESTRICT THE APPLICATION OF THE [RICO, § 1964(c)] STATUTES."
See, BENNETT vs. BERG, 685 F.2d 1053, 1064 (8th Cir. 1982); and U.S. vs. LEMM,
680 F.2d 1193, 1198 (8th Cir. 1982) (Joinder under Fed.R.Crim.P. 8 and 14 also
described)

40. In TURKETTE, the Supreme Court recognized that in addition to
§1964(c)'s "REMEDIAL PURPOSE" to restore damage to a RICO victim's "business
and property" three-fold, during the congressional debates it was expressed that
Congress made a conscious decision to place a measure of "police power" of the
states in the hands of private RICO victims to provide a remedy to help "eradicate"
racketeering activity from the social fabric, which the state law was deemed
inadequate to accomplish. See, 69 L.Ed.2d 256.

41. , In particular, the anti-conflict of interest "remedial purposes" of Title 18 U.S.C. § 201(c)(2) & (3), recognized in U.S. vs. MISS. VAL. GEN. CO. 5 L.Ed.2d 268, 287-89 (1961), to prevent "undetectable corruption" to the federal process, as here, false testimony from corrupting the integrity of the executive and judicial process, is very much within reach of the Supremacy Clause, Art. VI, cl. 2, and Plaintiff's right to due process of law under the Fifth Amendment.

End of page 14

PAGE 10 OF DEFENDANTS NOTION ARGUMENT 11" "HECK vs. HUMPHREY":


42. The Defendants lastly state, "the United States Supreme Court has held that a defendant in a criminal case may not recover damages in a subsequent civil suit unless the plaintiff can prove that his conviction has been reversed. In HECK vs. HUMPHREY, 512 U.S. 477 (1994), the Supreme Court rejected a state prisoner's claim of an unconstitutional conviction, which claim was filed in federal court under Title 42 USC §1983 . . . . These claims [Plaintiff's] are untenable in view of Plaintiff's confirmed conviction and sentence." The above statements by Defendants are not true for the following reasons:

a. Plaintiff's conviction was overturned in U.S. vs. LAMBROS, 65 F.3d 698 (8th Cir. 1995).

b. PLAINTIFF IS NOT CHALLENGING THE LAWFULNESS OF HIS CONVICTION.

c. BOTH THE THIRD AND TENTH CIRCUIT HAVE RECENTLY DISTINGUISHED HECK vs. HUMPHREY, THUS ALLOWING PLAINTIFF'S TO RECOVER DAMAGES AGAINST DEFENDANTS. See, NELSON vs. JASHUREK, 109 F.3d 142 (3rd Cir. 1997); and MARTINEZ vs. CITY OF ALBUQUERQUE, 184 F.3d 1123, 1125 (10th Cir. 1999).

d. NELSON vs. JASHUREK, 109 F.3d 142, 145-146 (3rd Cir. 1997) The Plaintiff in NELSON had not claimed that the police officer in his case falsely arrested him, BUT rather claimed that the officer "effectuated a lawful arrest in an unlawful manner," the Third Circuit held that Plaintiff's state court conviction for resisting arrest did not prohibit him from pursuing his §1983 excessive force claim against the arresting officer. Quoting MARTINEZ. 184 F.3d 1123, 1125 (10th Cir 1999).

e. MARTINEZ vs. CITY OF ALBUQUERQUE, 184 F-3d 1123, 1125
(10th Cir. 1999) The Tenth Circuit stated, "careful comparison between HECK

End of page 15

and the facts of this case demonstrate that to the extent MARTINEZ' federal suit DOES NOT CHALLENGE THE LAWFULNESS OF HIS ARREST AND CONVICTION (a challenge HECK would prohibit at this point) , HECK does not bar him from pursuing his civil rights claims in federal court." Id. at 1125; "The question for the jury is whether the police officers utilized excessive force in making [MARTINEZ'] arrest. Otherwise, the jury might proceed on the incorrect assumption that the police officers had no probable cause to arrest MARTINEZ, and thus reach a verdict inconsistent with MARTINEZ' criminal conviction. Id. at 1127.

LEGAL CASES AND DEFINITIONS TO ASSIST THIS COURT:

43. RICO ENTERPRISE: An enterprise includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity. See, Title 18 U.S.C. § 1961(4).

44. PROVIDING A VIOLATION OF RICO: To prove a violation of §1962(c) of the Racketeer Influenced and Corrupt Organization Act (RICO) [Title 18 U.S.C.A. 1962(c)], plaintiff must show that an enterprise existed which effected interstate commerce, that defendant(s) was associated with the enterprise, that defendant participated in the conduct of enterprise's affairs, and that the participation was through a pattern of racketeering activity. See, R.A.G.S. COUTURE, INC. vs. HYATT, 774 F.2d 1350, Head Note 1 (5th Cir. 1985).

45. PATTERN OF-RACKETEERING ACTIVITY: A pattern of racketeering activity requires at least two (2) acts of racketeering activity. See, Title 18 U.S.C. §1961(5).

46. ACTIVITY: Any act indictable under an enumeration of state and federal criminal laws. See, Title 18 U.S.C. §1961(l).

End of page 16

47. SEDIMA, S.P.R.L. vs. IMREX CO., 105 S-Ct. 3275t 87 L-Ed.2d 346 (1985): The Supreme Court's SEDIMA decision cautions us NOT TO PLACE BARRIERS BEFORE RICO PLAINTIFF'S THAT ARE NOT FOUND IN THE TEXT OF THE STATUTE. Quoting, R.A.G.S. COUTURE, at 774 F.2d 1353 (5th Cir. 1985).

48. SCOPE OF CIVIL RICO: The scope of the civil RICO statute is BREATHTAKING. An allegation of fraud in a CONTRACT ACTION can transform an ordinary state law claim into a federal racketeering charge. In may be unfortunate for federal courts to be burdened by this kind of case, but it is not for this court to question policies decided by Congress and upheld by the Supreme Court. The broad language of the statute and the SEDIMA decision provide clear guidance. Quoting R.A.G.S. COUTURE, at 774 F.2d 1355 (5th Cir. 1985).

THIS COURTS HISTORY AS TO GRANTING SUMMARY JUDGEMENT IN LEGAL MALPRACTICE ACTIONS:

49. The Honorable David S. Doty resides over this action of legal malpractice, thus Plaintiff believes it is appropriate to follow theory expressed by Judge Doty as to Summary Judgement guidelines applied to legal malpractice actions. See, YUSEFZADEH vs. ROSS, 932 F.2d 1262 (8th Cir. 1991).

50. Judge Doty stated., "The question presented, then, in the context of this SUMMARY- JUDGEMENT proceeding, is whether YUSEFZADEH'S evidence, when considered in a favorable light and given the benefit of all reasonable inferences, was sufficient to create a genuine issue of material fact on the question of CAUSATION. The issue comes down in the end to this: Would YUSEFZADEHt BUT FOR THE CLAIMED TORTIOUS CONDUCT OF ROSS AND HIS LAW FIRM, have obtained financing from another source? We say "BUT FOR" advisedly. That is clearly the standard under MINNESOTA LAW IN LEGAL-MALPRACTICE CASES. In order to succeed, a plaintiff must show not only violation by a lawyer of professional standards of due care and ethical conduct, but also that BUT FOR THIS VIOLATION, SOME DISTINCT ADVANTAGE WOULD HAVE BEEN OBTAINED BY THE PLAINTIFF--CLIENT.

End of page 17

51. The Eighth Circuit agreed with Judge Doty's theory as to SUMMARY JUDGEMENT guidelines applied to legal malpractice actions and the issue applied to YUSEFZADEH, "[T]he issue is whether YUSEFZADEH would actually have obtained financing, on time, but for Ross's alleged defaults."


CONCLUSION:

52. Plaintiff has established a claim of legal malpractice and/or negligence and RICO against Defendants. See, BLUE WATER CORP. vs. O'TOOLE, 336 N.W.2d 279, 281 (Minn. 1983).

53. As of this writing, February 1, 2000, this Court has stopped all filing within this legal action due to its January 25, 2000 ORDER granting this Plaintiff's request for APPOINTMENT OF COUNSEL. Therefore, it is this Plaintiff's understanding that he will be able to secure expert testimony to establish the standard of care applicable to the defendants before a jury to evaluate the relevant conduct. See, HILL vs. OKAY CONSTR.. 312 Kinn. 324, 327. 252 N.W.2d 107, 116 (1977).

54. Plaintiff is also requesting this Court to render an ORDER as to the identity of Defendants insurance policy companies so Plaintiff may add them as defendants to this action.

55. Plaintiff has not completed discovery in this action. Therefore, this Plaintiff requests this Court to deny, or at least stay Defendants request for Summary-Judgement. See, COSTLOW vs. U.S. 552 F-2d 560, 564 (3rd. Cir. 1977); MAYUN vs. THOMPSON, 484 F.Supp. 619 (C.D.111. 1980). "[Wlhere the facts are in the possession of the moving party, a continuance of a motion for summary judgement should be granted as a matter of course." See, COSTLOW, at 564. See also. NATIONAL LIFE INS. CO. vs. SOLOMON, 529 F.2d 59, 60 Head Note 2 (2nd Cir. 1975) "[S]ince SUMMARY JUDGEMENT is drastic device, it should not be granted where there are major factual contentions in dispute, particularly when one party has

End of page 18

yet to exercise its opportunity for PRETRIAL DISCOVERY. Fed.Rules Civ.Pro. Rules 26, 56, 56(f), Title 28 U.S.C.A."

56. Plaintiff is also requesting any further relief as to this Court may see just and proper.

57. Plaintiff hereby states under the penalty of perjury that the foregoing is true and correct. Title 28 U.S.C.A. §1746.


DATED: February 1, 2000

End of page 19 and last page of document

JOHN GREGORY LAMBROS

Plaintiff

vs.

CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER

SHEILA REGAN FAULKNER

FAULKNER & FAULKNER, Attorneys at Law

and

JOHN & JANE DOE

Defendants

CIVIL CASE NO.
98-1621 (DSD-JMM)

VERIFIED FORM

PLAINTIFF LAMBROS REQUESTS LEAVE OF THE COURT TO AMEND THIS PLEADING TO ADD NEW CLAIM THAT RELATES BACK TO ORIGINAL COMPLAINT. FEDERAL RULES OF CIVIL PROCEDURE, RULE 15(a). THIS NEW CLAIM IS #16 AND TO BE ADDED TO PLAINTIFF'S FEBRUARY 17, 1999, AMEND COMPLAINT.

Plaintiff JOHN GREGORY LAMBROS, pro se, (hereinafter Movant) requests leave of this Court to amend his pleading so he may add a new claim that relates back to his original complaint. This new claim is number sixteen (16) and is to be added to Plaintiff's February 17, 1999, AMENDED COMPLAINT.

Rule 15(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that "a party may amend [its] pleading . . . by leave of court" and that "leave shall be freely given when JUSTICE SO REQUIRES." General, AMENDMENTS ARE FAVORED, as they tend "TO FACILITATE A PROPER DECISION ON THE MERITS." See, JUNIOR GALLERY, 1997 WL 26293, at *2 (quoting CONLEY vs. GIBSON, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See, BLASKIEWICZ vs. COUNTY OF SUFFOLK,

29 F.Supp.2d 134, 137 (E.D.N.Y. 1998).(Citations omitted)
The party opposing such amendment has the burden of establishing that leave would be prejudicial or futile. See, BLASKIEWICZ, at 137.

In making this determination, the court should not consider the merits of a claim or defense on a motion to amend unless the amendment is is clearly frivolous or legally insufficient on its face." See, BLASKIEWICZ, at 138. (Citations omitted)

End of page 1

"If the [Movant] has at least colorable grounds for relief, JUSTICE . . . REQUIRE[S]" that the court grant leave to amend a complaint. See, BLASKIEWICZ, at 138. (Citations omitted)

CLAIM XVI (16):

PLAINTIFF LAMBROS WAS DENIED A JURY INSTRUCTION ON LESSER INCLUDED OFFENSE, REGARDLESS OF WHETHER THE LESSER OFFENSE IS. CHARGED, AS EVIDENCE WOULD OF PERMITTED JURY RATIONALLY TO FIND PLAINTIFF LAMBROS GUILTY OF LESSER OFFENSE AND ACQUITTED OF GREATER OFFENSE. See, Federal Rules Criminal Procedure, Rule 31(c), Title 18, U.S.C.A.

1. WHO - Defendant C.W. Faulkner, et al. in legal proceedings as to the representation of Plaintiff Lambros.

2. WHAT - Defendant C.W. Faulkner, et al. committed legal malpractice in the representation of Plaintiff Lambros in not requesting the District Court to give lesser included instructions as evidence warranted instruction and Defendant C.W. Faulkner refused to request same. See, U.S. vs. BAKER, 985 F.2d 1248, 1250 Head Note 12, (District Court has NO DISCRETION to refuse to give lesser included instruction if evidence warrants instruction and defendant requests it.)

End of page 2

3. Title 21 U.S.C.A. §844, (PENALTIES FOR SIMPLE POSSESSION) is the lesser included offense of Title 21 U.S.C.A. H 841(a)(1) and 846. Title 21 U.S.C.A. §844, carries a PENALTY of "NOT MORE THAN ONE (1) YEAR, ON THE FIRST OFFENSE AND A MAXIMUM OF THREE (3) YEARS AFTER TWO OR MORE SUCH OFFENSES HAVE BECOME FINAL." Plaintiff believes that he could not of received more than a ONE (1) YEAR sentence due to his extradition from Brazil and the applicable laws within Brazil that attach to all extradition proceedings.

4. WHEN - Defendant C.W. Faulkner et al., refused to request the District Court to give the lesser included instructions after Plaintiff Lambros requested him to. This event occurred during pretrial strategy discussions Plaintiff had with Defendant.

5. WHY - Defendant C.W. Faulkner, et al. committed above acts due to that defined within LEGAL MALPRACTICE, as per Plaintiff's beliefs.

6. WHERE - Defendant C.W. Faulkner et al. committed above acts within the law firm of FAULKNER & FAULKNER, the U.S. Federal Courthouse in Minnesota, and transmitted information via interstate communication facilities including the telephone.

LEGAL CASES TO ASSIST THIS COURT AND DEFENDANTS AS TO CLAIM 16:

7. BECK vs. ALABAMA, 65 L.Ed.2d 392, 395, & 400-402 (1980) The
Supreme Court stated, "In federal courts, the defendant is entitled to an instruction
on a lesser included offense if the evidence would permit a jury rationally to
find him guilty of the lesser offense and acquit him of the greater. Id. 395
(Head Note 5) Also, review pages 400 thru 402.

8. U.S. vs. BAKER, 985 F.2d 1248, 1250 (Head Note 13) 4th Cir. 1993) "Defendant charged with conspiracy to possess with INTENT to distribute cocaine was entitled to REQUESTED JURY INSTRUCTION ON LESSER INCLUDED OFFENSE OF CONSPIRACY
End of page 3

TO POSSESS COCAINE; . . ., and evidence that defendant had participated in conspiracy as distributor was in dispute."

9. KEEBLE vs. U.S., 412 U.S. 205, 208, 36 L.Ed.2d 844 (1973),
the Supreme Court stated, "it is now beyond dispute that the defendant is entitled
to an instruction on a lesser included offense if the evidence would permit
a jury rationally to find him guilty of the lesser offense and acquit him of
the greater."

10. - U.S. vs. GIBBS, 904 F.2d 52, 58 (D.C. 1990) "'A defendant is entitled to an instruction on a lesser included offense if there is any evidence fairly tending to bear upon the lesser included offense, "HOWEVER WEAK" that evidence may be."

11. U.S. vs. IRON SHELL, 633 F.2d 77, 88 (8th Cir. 1980) "Rule 31(c)
states that the instruction is CALLED FOR where the lesser offense is "necessarily"
included in the greater offense. This concept is expressed in the principle
that one offense is necessarily included in another if it is impossible to commit
the greater without also having committed the lesser."

12. U.S. vs. CAMPBELL, 652 F.2d. 760, 762-763 (8th Cir. 1981) Foot Note 3, page 763. . . On the other hand, this Court has held that the offense of distribution of a controlled substance, 21 U.S.C. §841(a)(1), requires possession, and that simple possession under 21 U.S.C. §844(a) is a lesser included offense."

13. U.S. vs. SCHARF, 558 F.2d 498, 502 (8th Cir. 1977) [6] "The "lesser included offense" doctrine is well established and is recognized in Fed.R.Crim.P. 31(c). If the offense charged in the indictment includes a lesser offense, and if under the evidence a jury could rationally find the defendant guilty of the lesser offense while finding him not guilty of the greater offense, he is entitled to an appropriate instruction submitting the lesser offense to the jury."

14. U.S. vs. MONK, 15 F.3d 25 (2nd Cir. 1994) Monk was indicted for carrying 340 gram of crack (the equivalent of 34,000 grams of cocaine powder
End of page 4

as per the U.S. Sentencing Guidelines §2D1.1 Table, 18 U.S.C.A., 100:1 sentence enhancement for crack. Thus, 34 Kilo's. See, U.S. vs. ADAMS, 125 F.3d 586, 591 (7th Cir. 1997)), and indicted under 21 U.S.C. §841 for possession with intent to distribute. At trial MONK's defense was that he did not INTENT TO DISTRIBUTE. At MONK's request, the trial judge charged the jury as to both the indictment offense and the lesser included offense of SIMPLE POSSESSION, under 21 U.S.C. §844. The jury accepted MONK's defense, acquitting him of the §841 charge (possession with intent to distribute) and convicting him of simple possession of crack (§844). Id. at 26. It is settled in this Circuit that in a prosecution under §841 (possession with intent to distribute), QUANTITY OF THE DRUG IS NOT AN ELEMENT OF THE CRIME. Id. at 27. The first sentence of §841 (a) makes it "unlawful for any person knowingly or intentionally . . . to possess with intent to manufacture, distribute, or dispense a controlled substance . . . We held in CAMPUZANO that quantity is not an element of the crime because that first sentence "prohibits the DISTRIBUTION OF ANY AMOUNT OF COCAINE." 905 F.2d at 679 (emphasis in original). The first sentence of 1844(a) likewise makes it "unlawful for any person knowingly or intentionally to possess a controlled substance . . ." Following CAMPUZANO we now hold that quantity is not an element of simple possession because f844(a) PROHIBITS THE POSSESSION OF ANY AMOUNT OF A CONTROLLED SUBSTANCE, INCLUDING CRACK. To reach a different conclusion just because §841 is subdivided between crime and penalty, while §844 is not, would make an idol to exalting form over substance. Id. at 27.

CONCLUSION N:

Plaintiff Lambros requests that the foregoing claim be added to this action.

I declare under penalty of perjury that the foregoing is true and correct. Title 28 U.S.C.A. §1746.

DATED: March 1, 2000

Signed: John G. Lambros, Pro Se
End of document

JOHN GREGORY LAMBROS

Plaintiff

vs.

CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER

SHEILA REGAN FAULKNER

FAULKNER & FAULKNER, Attorneys at Law

and

JOHN & JANE DOE

Defendants

CIVIL CASE NO.
98-1621 (DSD-JMM)

AFFIDAVIT DOCUMENT

LEGAL CASES TO SUPPORT LAMBROS' RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT PLEA BARGAINING IN CORRECTLY ADVISING LAMBROS OF POTENTIAL MAXIMUM SENTENCES.

COMES NOW, JOHN GREGORY LAMBROS, Plaintiff, Pro Se, in the above entitled action, stating in AFFIDAVIT FORM, research to support and prove Attorney Charles W. Faulkner, et al. errors and ineffective assistance of counsel claims in not advising Plaintiff Lambros of the correct potential maximum sentence he could receive. This occurred during PLEA BARGAINING and SENTENCING.

1. U.S. vs. GORDON, 156 F.3d 376 (2nd Cir. 1998). Defense counsel I s performance in grossly underestimating defendant's sentencing exposure in LETTER to defendant fell below prevailing professional norms for advising criminal defendant during plea negotiations. Id. at 376 Head Note 5. Reasonable probability existed that, but for defense counsel's unprofessional error in grossly underestimating that defendant's maximum sentencing exposure was ten years, defendant would have accepted guilty plea offer, even if court and government had advised defendant before trial that he faced "minimum" sentence of ten years. where
End of page 1

actual maximum sentence was approximately 27 years, and defendant stated that BUT FOR his counsel's advise he would have accepted whatever plea had been offered. Id. at 376, Head Note 6. District Court did not abuse its discretion in VACATING DEFENDANT'S CONVICTIONS and ordering NEW TRIAL AS REMEDY for violation of defendant's right to effective assistance of counsel at PLEA BARGAINING STAGE, resulting from defense COUNSEL'S FAILURE TO CORRECTLY ADVISE DEFENDANT OF POTENTIAL MAXIMUM SENTENCE. Id. at 376, Head Note 8. This is an excellent case that outlines the steps needed in analyzing ineffective assistance of counsel, "reasonable probability" that the outcome would be different, and "objective evidence" precedent. It is clear that Attorney Faulkner was ineffective in informing Plaintiff Lambros that the only sentence he could receive was a mandatory life sentence without parole.

2. U.S. vs. HERNDON, 7 F-3d 55 (5th Cir. 1993). The Fifth Circuit addressed the question, "[T]he question is whether AWARENESS of a mandatory minimum [maximum] would have affected the defendant's decision to PLEAD GUILTY." Id. at 58. Due to the fact the defendant was NOT "AWARE OF OR UNDERSTOOD" the existence of the statutory sentence he could receive the Court VACATED his conviction and sentence, and REMANDED his case to the trial court for REPLEADING.

3. U.S. vs. SOTO, 132 F.3d 56 (D.C. Cir. 1997) The court stated, "[W]hether lawyers get Sentencing Guidelines wrong by misinterpreting implication of particular provision or by failing to raise potentially helpful provision altogether, such drastic missteps CLEARLY satisfy professional standards portions of test for INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS: THEY AMOUNT TO ERRORS SO SERIOUS THAT COUNSEL WAS NOT FUNCTIONING AS COUNSEL GUARANTEED DEFENDANT BY SIXTH AMENDMENT." See, Id. at 56, Head Note 6.

4. U.S. vs. GAVIRIA, 116 F.3d 1498 (D.C. Cir. 1997) The United States Court of Appeals for the District of Columbia Circuit stated, "[R]emand was REQUIRED of defendant's claim that counsel was INEFFECTIVE FOR INCORRECTLY
End of page 2

INFORMING DEFENDANT THAT IF HE ACCEPTED PROSECUTION'S "WIRED" PLEA AGREEMENT REQUIRING CODEFENDANTS TO PLEAD GUILTY AS WELL, HE WOULD BE SUBJECT TO SENTENCE OF 36 YEARS TO LIFE, WHEN, IN FACT, HE ACTUALLY WOULD HAVE FACED SENTENCE OF 15 TO 22 YEARS; evidentiary hearing was required on issues of whether defendant would have taken government's plea offer had he known his TRUE EXPOSURE under sentencing guidelines, and whether government would have entertained "unwired" plea from defendant." Id. at 1498, Head Note 5.

5. U.S. vs. WATLEY, 987 F.2d 841 (D.C. Cir. 1993), The District
of Columbia Appeals Court stated, "[D]efendant's guilty plea was rendered
involuntary by INCORRECT INFORMATION received by defendant BEFORE AND AT GUILTY
PLEA HEARING ABOUT POSSIBLE SENTENCE, and by failure to advise defendant about
PECULIAR INTERPLAY OF SENTENCING GUIDELINES AND STATUTORY
PRESCRIPTIONS,
Id. at 841, Head Note 2.

6. U.S. vs. HARVEY, 791 F.2d 294, 300-301 (4th Cir. 1986) offers an excellent overview of PLEA BARGAINS and COMMERCIAL CONTRACTS, as to there analogous relationship.

7. U.S. vs. LAMBROS, 65 F.3d 698 (8th Cir. 1995)
The Eighth Circuit vacated and remanded Plaintiff Lambros' sentence, as the statute, Title 21 U.S.C.
Section 846, did not carry a mandatory life sentence without parole. Plaintiff
Lambros' PLEA AGREEMENT CONTRACT stated that the only sentence he could receive
was a mandatory life sentence without parole.

CONCLUSION:

8. A reasonable probability existed that Plaintiff Lambros would
of accepted a guilty plea to two (2) years, instead of the seven (7) years offered
by the government via Plaintiff's Attorney Charles Faulkner, BUT FOR the
failure of Plaintiff's attorney to correctly advise Plaintiff Lambros of the
potential maximum sentence he was facing and the illegal counts and parole
violations that where not applicable to Plaintiff Lambros due to the extradition
End of page 3

treaty between BRAZIL and the UNITED STATES.

9. Plaintiff Lambros was tortured in Brazil and BUT FOR Plaintiff Lambros' Attorney Charles Faulkner failure to investigate, Plaintiff believes that the U.S. Government would of offered Plaintiff a plea agreement of less then two (2) years.

10. Plaintiff hereby states under the penalty of perjury that the foregoing is true and correct. Title 28 U.S.C.A. §1746.

DATED: February 1, 2000
Signed: John Gregory Lambros,
Pro Se and
Supporters of BOYCOTT BRAZIL at www.brazilboycott.org
Reg No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
USA

End of document

The address for the Boycott Brazil homepage is:
http://brazilboycott.org

Return to Boycott Brazil Homepage

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
USA

THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.