June 30, 2000, DEFENDANTS' (Faulkner's') MEMORANDUM IN SUPPORT OF COMPREHENSIVE MOTION TO DISMISS OR FOR SUMMARY JUDGMENT. Total of twenty five (25) pages.

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA


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)

DEFENDANTS' MEMORANDUM IN SUPPORT OF COMPREHENSIVE MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

INTRODUCTION

Defendants seek dismissal pursuant to Rule 12(b)(6) and alternatively summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure.

Defendants request the following relief relative to the fifteen claims contained in plaintiffs Amended Complaint:

(A) Dismissal of all claims pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state claims upon which relief may be granted based on immunity afforded public defenders under applicable Minnesota law.

(B) Dismissal pursuant to Rule 12(b)(6), Fed.R.Civ.P., based on collateral estoppel and a valid criminal conviction which preclude a civil action for damages.

(C) Dismissal, pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state malpractice or other cognizable claims upon which relief may be

end of page 1

INTRODUCTION


Defendants seek dismissal pursuant to Rule 12(b)(6) and alternatively summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure.
Defendants request the following relief relative to the fifteen claims contained in plaintiffs Amended Complaint:
(A) Dismissal of all claims pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state claims upon which relief may be granted based on immunity afforded public defenders under applicable Minnesota law.

(B) Dismissal pursuant to Rule 12(b)(6), Fed.R.Civ.P., based on collateral estoppel and a valid criminal conviction which preclude a civil action for damages.

(C) Dismissal, pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state malpractice or other cognizable claims upon which relief may be granted.

Page 1



(D) Alternatively, summary judgment on all claims pursuant to Rule 56,
Fed.R.Civ.P., based upon a lack of material fact in dispute and
defendants' entitlement to summary judgment as a matter of law.

FACTUAL BACKGROUND

Plaintiff is a federal prisoner serving a sentence of 360 months imprisonment and 8 years of supervised release. Plaintiff was convicted following a jury trial in 1993 before the Honorable Diana E. Murphy. District Court File No. 4-89 Cr. 82(5). Plaintiff's convictions for conspiracy to possess with intent to distribute and distribution of more than five kilograms of cocaine were affirmed in United States v. Lambros, 65 F.3d 698 (8th Cir. 1996) cert denied 516 U.S. 1082 (1996). The Eighth Circuit remanded plaintiffs case on a sentencing issue finding that the lower court incorrectly concluded that a life sentence was mandatory. In fact the mandatory life provision did not become applicable law until after the end date of the conspiracy of which plaintiff was convicted. See id. at 700. After remand, plaintiff received a sentence of 360 months which was affirmed upon appeal. See United States v. Lambros, 124 F.3d 209 (8th Cir. 1997).

Prior to the jury being impanelled, the trial court judge inquired of John Gregory Lambros, plaintiff in this action, whether he felt he had had enough time to discuss with his counsel plea negotiations proposed by the government. T.1-10 - 12'. Mr. Lambros responded to Judge Murphy that he was aware that he was facing what he construed to be the


Copies of pages from the trial transcript which are referenced in this memorandum are included with the Affidavit of Deborah Ellis filed with this memorandum.

Page 2


death penalty and then stated, "I don't choose to negotiate, ma'am." T.1-12.
Charles W. Faulkner was plaintiffs appointed counsel at trial. Mr. Faulkner
was appointed pursuant to Title 18 U.S.C. § 3006A. Mr. Faulkner died on October 6, 1997
before plaintiff commenced the instant civil law suit. The other defendants named in the
Amended Complaint are Mr. Faulkner's former law office associates, including his wife
Sheila Regan Faulkner.

In this lawsuit, plaintiff alleges the following claims. ("CWF" throughout the
summary refers to Charles W. Faulkner et al.)

Claim I paragraphs 21 - 23 Malpractice: CWF sent government's plea
proposal to plaintiff.
Claim 11 paragraphs 26 - 28 Malpractice: Plaintiffs family paid legal research
fees to National Professional Services Association.
Claim III paragraph 32 and 33) Malpractice: CWF did not hire an investigator to
investigate plaintiffs torture in Brazil.
Claim IV paragraphs 36 and 38 Malpractice: Plaintiff had difficulty contacting
CWF and "facilitating legal attorney investigative
contacts as to hiring a local psychologist and
doctor." Plaintiff was required to pay for a
private evaluation which defendants said may be
paid by the court.
Claim V paragraph 43 Malpractice: CWF failed to file motion to
suppress testimony obtained in violation of 18
U.S.C. § 201(c)(2) and §§ 201(b)(2) and (b)(33).
Claim VI paragraph 45 RICO: Plaintiff incorporates Claim V and
paragraph 16 (definition of RICO).
Claim VII paragraphs 48-49 Malpractice: CWF allowed plaintiffs due process
rights to be violated when plaintiff was sentenced
to consecutive sentences in violation of Brazil
Treaty.

Page 3


Claim VIII paragraphs 52 and 54 Malpractice: CWF allowed plaintiffs due process
rights to be violated when, according to plaintiff,
his sentence was increased to compensate for
unextradited crimes in violation of Brazilian law.
Claim IX paragraphs 58 and 59 Malpractice: CWF allowed plaintiffs due process
rights to be violated when plaintiff was convicted
on insufficient evidence.
Claim X paragraphs 62 - 64 Malpractice: CWF allowed plaintiffs Lambros'
due process rights to be violated when plaintiff
was convicted and sentenced on a legally
insufficient indictment.
Claim XI paragraphs 69 and 70 Malpractice: CWF did not respond to a
commercial lien filed by plaintiff.
Claim XII paragraphs 73 and 74 Malpractice: CWF allowed plaintiffs due process
rights to be violated when plaintiff was sentenced
in violation of Brazil's constitution.
Claim XIII paragraphs 78 and 79 Malpractice: CWF allowed plaintiffs due process
rights to be violated when Lambros placed on trial
on certain counts which were not allowed by
Brazilian constitution.
Claim XIV paragraphs 83 and 84 Malpractice: CWF allowed plaintiffs due process
rights to be violated when he was placed on trial
for offenses not allowed by the Brazil Constitution
and in violation of the U.S.-Brazil Treaty.
Claim XV paragraphs 88 and 89 Malpractice: CWF allowed plaintiffs due process
rights to be violated when plaintiff was allowed to
stand trial on all counts over which the court had
no jurisdiction based upon violation of the U.S.
Brazil Treaty.
ARGUMENT

For purposes of defendants' request for dismissal pursuant to Rule 12(b)(6),
Federal Rules of Civil Procedure, averments in plaintiffs Amended Complaint are presumed

Page 4


true.' St. Croix Waterway Ass'n. v. Meyer, 178 F.3d 515, 519 (8th Cir. 1999). This court need not consider any material outside the pleadings in order to conclude that plaintiff has failed to state legal malpractice claims for which relief may be granted. See Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992).

A motion requesting alternative relief is appropriate. If the court considers the affidavits or other "matters outside the pleadings", then the motion is treated as one under Rule 56; if the court can decide the motion without reliance upon the matters outside the pleadings, then it may appropriately be resolved under Rule 12(b)(6). See Buck v. F.D.I.C., 75 F.3d 1285, 1288 and n.3 (8th Cir. 1996).

1. All Plaintiffs Claims Should be Dismissed Pursuant to Rule 12(b)(6) for failure to state a claim.

Although under Rule 12(b)(6) the court does not normally consider matters outside the pleadings, it may take judicial notice of certain matters outside the pleadings without converting the motion into one for summary judgment. Intermedics. Inc. v. Ventritex. Inc., 775 F.Supp. 1258 (N.D.Cal. 1991) affd 991 F.2d 808 (9th Cir. 1993). Facts which may be the subject of judicial notice in the context of a Rule 12(b)(6) motion include the record of the case or matters of general public record. Id. at 1261.; see, eg., lacaponi v. New Amsterdam Casualty Co., 379 F.2d 311 (3rd. Cir. 1967) cert denied 389 U.S. 1054 (1968) (not error to decide question of res judicata on the motion to dismiss by examining a workers compensation decision which was referenced but not incorporated in the complaint). In this

2 Defendants do not concede that any of plaintiffs allegations are true except for purposes. of this motion.

Page 5


instance, plaintiff referenced the district court proceedings in United States v. Lambros, Minn.
District Court File No.
4-89-CR-82(5) and the opinions of the Eighth Circuit Court of
Appeals (paragraphs
5, 12, 17, 21, 31, 72 of Amended Complaint) of which this court is
entitled to take judicial notice.
In each of plaintiffs fifteen claims in his Amended Complaint, plaintiff alleges
that his appointed counsel Charles W. Faulkner and the other defendants' committed
malpractice and/or were incompetent'. Plaintiff seeks monetary compensation for his criminal
defense attorney's alleged malpractice and incompetence. See paragraphs 96 - 101, Amended
Complaint.
Plaintiffs malpractice claims must be dismissed on three grounds. First, Mr
Faulkner as a court-appointed lawyer, is entitled to absolute immunity under applicable
Minnesota law. Second, plaintiff cannot recover damages based on collateral estoppel and a
3 The named defendants, other than Charles W. Faulkner and his estate, are
named defendants only because of their relationship to Charles W.
Faulkner. See Amended Complaint at paragraphs 10, 1 3 ) and 17. For
example, in paragraph 17 of his Amended Complaint, plaintiff states:
"Defendants et al. represented Plaintiff Lambros, as per contract with
U.S. Public Defenders Office, Minneapolis, Minnesota. Defendants acted
as legal agents and/or representatives of Plaintiff Lambros."
See the following paragraphs in plaintiffs Amended Complaint:
paragraphs 21 and 23 (Claim 1); paragraph 28 (Claim 11); paragraphs 32
to 34 (Claim III); paragraph 38 (Claim IV); paragraph 43 (Claim V);
paragraph 45 (Claim VI); paragraph 49 (Claim VII); paragraph 54
(Claim VIII); paragraphs 58 and 59 (Claim IX); paragraphs 63 and 64
(Claim X); paragraphs 69 and 70 (Claim )9); paragraphs 73 and 74
(Claim XI); paragraphs 78 and 79 (Claim )aII); paragraphs 83) and 84
(Claim XIV); paragraphs 89 and 90 (Claim XV).
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valid criminal conviction unless his conviction is reversed.' Third, various of plaintiffs claims, even given a liberal reading of plaintiffs amended complaint, do not state a factual basis of conduct attributable to the defendants and plaintiff can prove no set of facts which would entitle him to relief.
(A) Immunity

Minnesota has granted to its public defenders immunity from legal malpractice claims. See Comment, 78 Minn.L.Rev. 977 (1994). The United States Supreme Court announced in Ferri v. Ackerman, 444 U.S. 193 (1979) that the individual states are free to decide whether public defenders have immunity from legal malpractice claims:

For when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law. Id. at 198.

The Supreme Court in Minnesota decided in favor of absolute immunity for public defenders which is the law this court must apply. Reliance Nat'l Indemnity Co. vs. Jennings, 189 F.3d 689, 694 (8th Cir. 1999)(Eighth Circuit applied Arkansas state law to legal

6
malpractice claim).

5 Defendants acknowledge that plaintiff claims not only an invalid
conviction but also an invalid sentence. Any errors by plaintiffs
counsel
(the prosecutor and trial court) at sentencing were corrected by the
appellate court and at resentencing therefore plaintiff cannot show a
basis
for damages. See * United States v. Lambros, 124 F.3d 209 (8th Cir.
1997) (Table) (affirming sentence of 360 months imposed after
remand).

6 Defendants note that the magistrate's August 4, 1999 Report and
Recommendation cites the elements that must be proven under
Minnesota
case law to sustain a legal malpractice claim. See Report and
Recommendation at page 14, citing Rouse v. Dunkley & Bennett. P.A.,
520 N.W.2d 406, 408 (Minn. 1994)

7


In Dziubak vs Mott, 503 N.W.2d 771 (Minn. 1993), the Minnesota Supreme
Court held that public defenders are immune from suit for legal malpractice. While the
Dziubak suit involved state, not federal, public defenders, the court's ruling must apply to
plaintiffs malpractice claims which require this court to apply state law. Indeed, there is no
federal statutory right to claim legal malpractice.

In Dziubak, the Minnesota Supreme Court observed that the United States Supreme Court "left the question of immunity to the states to decide when it declined to hold that federal law provides immunity for counsel in state malpractice suits." Id. at 774 Ferri v. Ackerman, 444 U.S. 193 (1979). The Minnesota Supreme Court noted that the Supreme Court in _Ackerman acknowledged that valid public policy reasons may justify a grant of immunity. Ld. In Ackerman, the Supreme Court, ever so prophetically, stated:


Perhaps the most persuasive reason for creating such an immunity would be to make sure that competent counsel remain willing to accept the work of representing indigent defendants. If their monetary compensation is significantly less than that of retained counsel, and if the burden of defending groundless malpractice claims and charges of unprofessional conduct is disproportionately significant, it is conceivable that an immunity would be justified by the need to preserve the supply of lawyers available for this important work.


Ackerman at 204-05.' The Minnesota Supreme Court found additional public policy reasons


for affording public defenders immunity under Minnesota law. The Minnesota Supreme Court noted a difference between privately retained counsel and appointed counsel with respect to presentation of frivolous claims (such as many of Mr. Lambros' claims). For private defenders, the Dziubak Court noted, "The funds available to the client usually serve to prevent the presentation of frivolous claims, tactics or defenses." Dzuibak at 776. For defendants whose attorneys fees are being assumed by the government, "[t]he client has no economic incentive for eschewing frivolous claims." Id. See~ Minns v. Paul, 542 F.2d 899, 902 (4th Cir. 1976)'. Indeed, as the record of plaintiffs trial court proceeding and his numerous suits' initiated since that time, plaintiffs indigent status provided him a vehicle to prevail upon his appointed counsel to pursue extraordinary, if not frivolous claims, Mr. Lambros has demonstrated in remarkable fashion that an indigent client has no economic incentive for eschewing frivolous claims. Plaintiffs indigent status should not permit him to further vex his now-deceased appointed counsel, his counsel's widow or former staff. The Minnesota

 

attorneys is seriously hampering the ability of judges to recruit attorneys to provide effective representation."
In Minns, the Fourth Circuit Court found that a public defender has immunity in 42 U.S.C. § 1983 actions.

9 For example: Mr. Lambros has sued the prosecutor Douglas R. Peterson
(Lambros v. Peterson, District Court File No. 96 CV 705, _Lambros v.
Peterson, 133 F.3d 922 (8th Cir. 1997) (Table); the Drug Enforcement
Agency (Lambros v. Anderson , United States District Court for the
District of Columbia 1:95 CV 00995 - Judge Norma Halloway Johnson);
and American Airlines (Lambros v. Northwest Airlines, District of
Minnesota File No. 94 CV 53 1); prison officials (Lambros v. Andreaci,
129 F.3d 122 (8th Cir. 1997) and Lambros v. Hawk, 993 F.Supp
13 )72
(D. Kan 1998)).

Page 9


court has held that appointed counsel in a criminal case have immunity and this court should dismiss, as a matter of law Mr. Lambros' legal malpractice claims.

(B) Plaintiffs valid conviction and collateral estoppel preclude a civil suit for damages

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 v. 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 42 U.S.C. § 1983). In Heck, the Court noted that the basis for Heck's claim for damages was an invalid conviction. 512 U.S. at 486.

The Supreme Court's decision in Heck, supr , precludes plaintiffs claims because, "a judgment in favor of the defendant would necessarily imply the invalidity of his conviction or sentence." Id. at 485. Plaintiffs claims for damages due to negligence or breach of contract of his trial counsel is a challenge to the validity of plaintiff s conviction. Pursuant to Heck, those claims cannot be entertained unless and until plaintiffs criminal conviction is set aside. In Levine the Seventh Circuit noted that "by operation of the doctrine of collateral estoppel, a valid criminal conviction acts as a bar to overturning that conviction in a civil damages suit." Levine 123 F.3d at 583. Therefore, as a matter of law plaintiffs claim must be dismissed with prejudice pursuant to Rule 12(b)(b), Fed.R.Civ.P.

Plaintiff is also barred from raising issues which were raised and decided in a prior proceeding in which plaintiff had a full and fair opportunity and incentive to litigate the claims. Plaintiffs prior valid conviction precludes a claim that he was convicted on the basis of legally insufficient indictment and on insufficient evidence. Plaintiffs claims of treaty

Page 10


violations are also precluded by collateral estoppel where the same issues were decided in the criminal suit. See Munz v. Parr 972 F.2d 971, 973 (8th Cir. 1992); White v. Murphy 780 F.2d 614, 616 (8th Cir. 1986);Levine v. Kling 123 F.3d 580 (7th Cir. 1997); see also 18 Wright- Miller-Cooper, Federal Prac. & Proc. Jurisdiction and related Matters § 4474 (West. 1981 and Supp. 2000).

Numerous claims of treaty violations were made on behalf of plaintiff in his criminal case. See certified copy of Criminal Docket Sheet attached to Affidavit of Donna Rae Johnson and docket entries numbered 20, 39 40 and 45. In a Report and Recommendation filed December 21, 1992, Magistrate Judge Lebedoff recommended that plaintiffs motions be dismissed based on treaty violations. In particular, the magistrate noted that plaintiff sought pretrial to have charges dismissed based on the court's lack of jurisdiction because his extradition was wrongfully obtained "because life imprisonment is barred by the Brazilian constitution, and second, because he was tortured during his confinement in Brazil." The magistrate recommended that the motions be denied. Report and Recommendation at page 8, Docket Entry # 40, certified copy attached to Affidavit of Donna Rae Johnson. The magistrate's recommendation was adopted by the district court, the Honorable Diana E. Murphy in an Order filed January 5, 1992. See Docket Entry 945 and certified copy of Order attached to Affidavit of Donna Rae Johnson.

Plaintiffs claim that he was allowed to be convicted on legally insufficient evidence is also barred by his prior criminal conviction. Plaintiff testified at his trial claiming that although he was a purveyor of marijuana he was not guilty of the cocaine charges against him. See T.VI - 804-805. Plaintiffs testimony was rejected not only by the jury but also by

Page 11


the trial court judge. At sentencing Judge Murphy increased plaintiff's sentence for perjury". Judge Murphy commented: "I believe that Mr. Lambros' testimony at trial was not credible insofar as he denied any involvement with cocaine. I believe the evidence was to the contrary." Sentencing Transcript at p. 31. On appeal, the Eighth Circuit Court of Appeals, affirming a sentencing enhancement for perjury, commented:
a review of the record shows unequivocal that Lambros's trial testimony was insincere, cynical and calculated,
willful, perjury of the most odious kind. 65 F.3d at 702. Plaintiffs conviction was affirmed on appeal. Failing a motion to dismiss, summary judgment is appropriate because there are no material facts in dispute and defendants are entitled to judgment as a matter of law.

Plaintiffs claims for civil damages are all barred by collateral estoppel and a valid judgment of conviction. These claims should be dismissed with prejudice.

In Levine v. Kling, 123 F.3d 580 (7th Cir. 1997), the Seventh Circuit Court found that a complaint alleging malpractice filed by a criminal defendant should not have been dismissed with prejudice because the complainant "ha[d] not yet exhausted his postconviction remedies." Id. at 582. The same can not be said here because Mr. Lambros has pursued his postconviction remedies repeatedly under 28 U.S.C. § 2255. A certified copy of the docket entries from Mr. Lambros' criminal case (District Court File No. 4-89 Cr. 82(5)) is attached to the Affidavit of Donna Rae Johnson submitted with this motion. Docket entries numbered 200, 201, 208, 209, 212, 213, 222, 223, 224, 229, 230 attest to plaintiffs

10 See Section 3 C I. I, Federal Sentencing Guidelines.
Page
12


unsuccessful efforts to obtain postconviction relief under the federal statute for habeas corpus relief. In this case, dismissal with prejudice of plaintiffs claims for civil damages is appropriate.

If the court does not recommend dismissal with prejudice, defendants urge the court to recommend that any further filings by the plaintiff be allowed only upon certification from a lawyer in good standing with the bar " that in the lawyer's opinion plaintiff's claims have some arguable merit. Such a restriction upon plaintiff is appropriate pursuant to 28 U.S.C. § 1651(a). Lee Taifa v. Bayh, 867 F.Supp. 799 (N.D. Ind. 1994) aff d 85 F.3)d 642 (7th Cir. 1996); Annotation, Authority of United States District Court,..Under-USCS1651(a), to Enjoin. Sua Sponte, A Party From Filing Further Papers in Support
of Frivolous Claims 53 A.L.R.Fed. 651 (1981).


(C) Plaintiffs factual allegations in Claims 1, IL III, IV. VIL VIII, and XXV Do Not Allege Conduct of the Defendant Which Caused Plaintiff Damages
In considering a motion to dismiss for failure to state a claim upon which relief may be granted, the court must take as true the "well-pleaded allegations" contained in the complaint. St. Croix Waterway Ass'n v. Mever, 178 F.3d 515, 518 (8th Cir. 1999) (emphasis added). In treating the factual allegations of a complaint as true, the court "do[es] not, however, blindly accept the legal conclusions drawn by the pleader from the facts."

Defendants note that in the past plaintiff has relied in part upon the advice
of Jeffrey Orren. See for example Docket Entry 9 113 and certified copy of Mr. Orren's affidavit, Criminal Docket, File No. 4-89 Cr. 82(5) attached to Affidavit of Donna Rae Johnson. Mr. Orren was disbarred in 1999. See In Re Disciplinary Action Against Orren, 590 N.W.2d 127 (Minn. 1999).
Page 13


Thompson v. Olsten Kimberly Qualitycare, 980 F.Supp. 1035, 1037 (D.Minn. 1997). The reviewing court may dismiss a claim under Rule 12(b)(6) if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations. Hishon v. Kinia & Spalding, 467 U.S. 69, 73 (1984). In response to a motion to dismiss, the plaintiff must show, at a minimum, that the prima facie elements of the applicable claims are alleged in the complaint. Briggs v. Sterner, 529 F.Supp. 1155 (D.lowa 1981).

Despite the liberal reading generally afforded to pro se litigants,
12 plaintiff does not state a cause of action for malpractice and plaintiffs allegations do not support any other identifiable cause of action other than malpractice.

In Claims 1, 11, 111, IV, VII, VIII, and X-XV, there are no set of facts which could be proven which would entitle plaintiff to relief and plaintiff has not alleged the prima facie elements for malpractice. Claims I-IV, VII, VIII, and X-XV , although purportedly claims for malpractice, do not aver acts of conduct by the defendants which caused plaintiff damages.

In Claim I, plaintiff alleges malpractice because his counsel forwarded the government's plea offer which misstated the law. Plaintiff avers no damages or injury to himself as a result of what plaintiff claims was an act of malpractice.

In Claims 11 and IV, the damages alleged (based on some obscure failings of

12 See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980), Haines v. Kerner, 404

U.S. 519, 520-21 (1972); Levine v. Kling, 922 F.Supp. 127 (N.D. Ill.
1996) affd 123 F.3d 580 (7th Cir. 1997); Lee also Watts v. I.R.S.
F.Supp 271 (D.N.J. 1996) (pro se litigant's claims dismissed based on
immunity and lack of jurisdiction for failure to state claims upon which
relief may be granted).
Page 14


Mr. Faulkner) are costs incurred by his family members for services Mr. Faulkner obtained but did not pay for. See paragraphs 26 and 38, Amended Complaint. Monetary disputes are not malpractice claims. A claim of malpractice requires proof of an act of negligence or breach of contract which were the proximate cause of plaintiffs damages. See Rouse v. Dunkley & Bennett- PA., 520 N.W.2d 406, 408 (Minn. 1984). Moreover, plaintiff did not have a contractual relationship with the defendants. Mr. Faulkner was appointed, not hired, to represent plaintiff in his criminal case.

In Claim III, plaintiff alleges that Mr. Faulkner et al failed to hire an investigator to investigate his claims of torture. Plaintiff does not allege any damages to him based on the lack of investigation. As discussed, infra, the trial court precluded testimony regarding plaintiffs alleged torture in Brazil. This exclusion of evidence was based on relevance and not on the court's conclusion that the torture did not occur. See T.IV - 574.

In Claim VII, plaintiff claims that defendants allowed his due process rights to be violated when defendants allowed plaintiff to receive consecutive sentences. Plaintiff received concurrent sentences on his four counts of conviction. See Amended Judgment in A Criminal Case, certified copy attached to Affidavit of Donna Rae Johnson. Docket Entry 193, Minnesota District Court File No. 4-89 Cr. 82(5).

In Claim VIII claims that defendants allowed plaintiffs due process rights to be violated when defendants allowed plaintiff to be sentenced for unextradited crimes. See paragraph 52, Amended Complaint. The district court's sentence was based upon application of the federal sentencing guidelines. Plaintiff was found to be a career offender, his sentence was increased for obstruction and perjury but not for any "unextradited crimes." See certified

Page 15

copy of Amended Judgment In A Criminal Case attached to Affidavit of Donna Rae Johnson.

In Claim XI, plaintiff seeks declaratory judgment and asserts that his claim is one for malpractice. See paragraph 67, 73 and 74 of Amended Complaint. If construed as a malpractice claim, plaintiff has not alleged conduct by the defendants that caused plaintiff damages thus the claim fails to state a cause of action. Plaintiff references 15 U.S.C. in this claim, the commerce, trade and antitrust statutes! No liberal construction of this claim can be so as to interpret it as a valid cause of action.

In Claim XII, plaintiff alleges defendants allowed his due process right to be violated when plaintiff was sentenced to a mandatory life sentence which sentence was not allowed under Brazil's constitution. Plaintiff continues in this claim to explain that after the Eighth Circuit Court of Appeals vacated his life sentence on Count 1, that he was "resentenced to a term of thirty (30) years within the framing of the Brazilian Constitution." See paragraph 72, Amended Complaint. Plaintiffs own allegations negate any damages as a result of the alleged wrongdoing of the defendants, plaintiff can prove no set of facts which would entitle him to relief and this claim should be dismissed. Any error, incompetence or malpractice by the defendants resulted in no damage to plaintiff whose sentence was corrected.

Similarly in Claims IX, X, XII-XV, plaintiff alleges violation of the U.S. Brazil Treaty. Plaintiff makes no suggestion that defendants violated the treaty or that defendants were the proximate cause of the alleged treaty violations. Therefore, plaintiff can prove no set of facts which would entitle him to relief from treaty violations, as against these defendants.

Page 16


A complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." J.D. Conley v, Gibson 355 U.S. 41, 45-46 (1957). In this instance, it is beyond doubt that plaintiff has failed to state any facts, which if proven, would entitle him to relief therefore these claims should be dismissed pursuant to Rule 12(b)(6), Fed.R.Civ.P.
2. Defendants are entitled to summary Judgment all plaintiff's claims -of malpractice and RICO.

If this court considers matters outside the complaint, summary judgment is appropriate as a alternative to dismissal under Rule 12(b)(6). See Buck v. F.D.I.C., 75 F.3d 1285, 1288 and n.3 (8th Cir. 1996).

According to Rouse v. Dunkley & Bennett. P.A. 520 N.W.2d 406 (Minn. 1994), in order to prove legal malpractice, four elements must be proven by the plaintiff

1. existence of an attorney-client relationship;
2. acts amounting to negligence or breach of contract;
3. such acts were the proximate cause of the plaintiffs damages; and
4. but for defendant's conduct the plaintiff would have been successful in the action.

First, defendants concede that an attorney-client relationship existed between plaintiff and Charles W. Faulkner. Second, those acts which plaintiff alleges amounted to negligence or breach of contract by Mr. Faulkner in Claims I through XV of his complaint are not supported by the record of Mr. Faulkner's representation of Mr. Lambros as discussed more fully below and which documentation submitted in support of this motion shows.

Page 17


Lastly, defendants urge the court to dismiss the various claims by the plaintiff on the grounds that the facts alleged by the plaintiff are not the proximate cause his claims for damages." see Rohricht v. O'Hare, 586 N.W.2d 587 (Minn. Ct.App. 1998).

Claim 1:

With respect to Claim 1, plaintiff asserts that Charles W. Faulkner committed malpractice by forwarding a letter from the prosecutor that erroneously stated the penalties which plaintiff was facing. See paragraphs 21 and 22 of Amended Complaint. Mr. Faulkner had a duty to communicate plea offers to his client. See e.g.. United States v. Rodriguez, 929 F.2d 747, 752 (Ist Cir. 1991); Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir. 1986). The fact that the prosecutor's position was determined to be wrong did not make Mr. Faulkner's act of transmitting the information negligent. More importantly, plaintiff doesn't claim that this misinformation caused him to go to trial when he otherwise would not have. In fact, plaintiff advised the trial court at the beginning of trial that he "choose not to negotiate." See T.1 12-13.

Additionally one of plaintiffs friends and informal counsel, Jeffrey L. Orren, stated in an affidavit filed in the district court January 27, 1994 that Mr. Lambros advised him that he would not have accepted any plea agreement with the government including a "no jail time agreement." See paragraph 7 of Jeffrey Orren's Affidavit, Dk. 9117, certified copy attached to Affidavit of Donna Rae Johnson.

13 As with claims of ineffective assistance of counsel, disposition of
petitioner's claims of counsel's negligence and breach of contract may be
more easily disposed of on lack of prejudice and lack of proximate cause.
See Strickland v. Washington, 466 U.S. 668, 697 (1986).
Page 18


Hence, conceding that Mr. Faulkner relayed the prosecutor's erroneous statements of the law, plaintiff cannot show any proximate relationship between this communication and his conviction. The misperceptions; of the prosecutor, defense counsel and trial court judge regarding the applicability of a life sentence were corrected by the Eighth Circuit Court of Appeals. See United States v. Lambros 65 F-31d 698, 700 (8th Cir. 1995) cert. denied 516 U.S. 1082 (1996) ("[B]ecause the mandatory life sentence was not in place at the time of the crime charged, the district court erred in applying it.")

Because no material facts are in dispute and defendants are entitle to judgment as a matter of law, judgment pursuant to Rule 56, Fed.R.Civ.P. is appropriate on Claim 1.

Claim II

In Claim II, plaintiff alleges that his family was required to pay for legal services provided by National Legal Professional Associates. Paragraph 26 Amended Complaint. Plaintiff implicitly alleges that defendants refused to pay for services for which they contracted and that this conduct was due to LEGAL MALPRACTICE. Paragraphs 28, Amended Complaint.

Claim 11 does not state a claim for legal malpractice and does not allege facts to support any elements of a legal malpractice claim including damages to plaintiff. Claim 11 appears to obscurely claim some monetary loss incurred by plaintiffs family members. Plaintiff does not claim to be adversely impacted by the allegations in the claim, or in legal terms has failed to allege that defendants actions were the proximate cause of any damages to him. Defendants should be granted summary judgment on Claim 2, if not dismissal.

Claim III.

Page 19


Plaintiff claims that defendants deprived him of a valid defense by not undertaking an investigation into his torture in Brazil. Paragraph 3 1, Amended Complaint. The trial court excluded as irrelevant, however, any evidence regarding plaintiffs torture in his trial. See T.IV 574 14

A prior factual determination that plaintiffs claim torture was not true may
foreclose crediting the veracity of plaintiffs claim. See United States v. Lambros, 65
F.3 )d at
701 ("the record contains persuasive evidence that torture with American complicity never
occurred"). But, even accepting as true plaintiffs claims of torture, plaintiff has recited no
set of facts which would entitle him to relief on his claims that his defense counsel and others
were incompetent and committed malpractice. The trial court excluded evidence of plaintiffs
torture which the defense, through counsel attempted to introduce. Summary judgment should
be granted because there are no material facts in dispute and the defendants are entitled to
judgment as a matter of law.

Claim IV


Plaintiffs fourth claim of legal malpractice is that his counsel failed to hire psychologists and doctors following his conviction to determine his competency. Mr.

14 Plaintiff was permitted to make an extensive record before the assigned


magistrate regarding his torture. See United States v. Lambros , 65 F.3d
at 700 ("In various hearings below, Lambros testified extensively as to
his mistreatment in Brazil."). The Eighth Circuit Court of Appeals found
that the record regarding plaintiffs claim torture "contains persuasive
evidence that torture with American complicity never occurred." Id. at
701. This conclusion by the Eighth Circuit appears to be based in
significant part on a psychologist's opinion that plaintiffs symptoms
were fictitious and orchestrated in an attempt to circumvent the legal
process. Id.
Page 20


Faulkner, appointed counsel was not allowed by the court to have a psychologist or doctors examine plaintiff following conviction.

Plaintiff fails to mention the fact that defendant Charles W. Faulkner did move the court for a competency hearing following conviction. See Dk. # 112 and #I I'), District Court File No. 4-98- 82(5). In essence then, Mr. Faulkner was requesting, under the Criminal Justice Act, fees for experts to determine Mr. Lambros' competency. In an order filed January 19, 1994 (Dk. # 114 District Court File No, 4-89-82(5)) the Honorable Diana E. Murphy denied the request for a competency hearing, noting "Defendant's conduct during trial showed competence." There is no material fact in dispute. Mr. Faulkner requested a competency examination which request was denied by the court.

Defendants' actions are not the proximate cause of any injury which plaintiff claims and defendants are entitled to summary judgment as a matter of law.

Claim V

In Claim V, plaintiff alleges malpractice as follows:
(1) failure to file motion suppressing testimony obtained in violation of
Title 18 U.S.C. § 201(c)(2).
(2) alleging that certain witnesses testimony may have been suppressed if a
motion had been filed under 18 U.S.C. § 201(c)(2). Interestingly, at
least one of the witnesses whom plaintiff claims might have been
suppressed was a witness which plaintiff called in his defense over his
counsel's objections. See T.IV - 578-79 and 581 (excerpts of transcript
attached to Affidavit of Deborah Ellis.

Page 21


(3) whether the evidence contains sufficient evidence to remand for a new
trial. Plaintiff implicitly suggests that his conviction could not be
sustained without those witnesses called in violation of 18 U.S.C. §
201(c)(2) but this statute has not provided a recognizable basis for
suppression in this district.

This claim is apparently based upon a decision from the Tenth Circuit (United States v. Sinizleto , 144 F.3d 1343 (10th Cir. 1998)) which was reversed January 8, 1999, following rehearing en banc. See United States v. Singleton, 165 F.3d 1297 (10th Cir.) cert. denied 119 S.Ct. 2371 (1999). The Eighth Circuit has followed the Tenth Circuit's en banc holding. See United States v. Albanese 195 F.3d 389. 394 (8th Cir. 1999). Conceding that defendant Charles Faulkner did not file a motion to suppress under 18 U.S.C. § 201(c)(2), such a motion is not cognizable in this district or circuit as a basis for suppression (nor was it in 1993).

CLAIM VI


Conceding that defendant Charles Faulkner did not make the motion of which plaintiff complains, there are no material facts in dispute and defendants are entitled to judgment as a matter of law on this claim. Neither 18 U.S.C. § 201(c)(2) nor Singleton provides plaintiff no basis for a claim and Ms. Faulkner's affidavit shows a lack of any factual basis for plaintiff to claim a pattern of racketeering. See Wisdom v. First Midwest Bank, 167 F.3)d 402, 406 (8th Cir. 1999). In the Affidavit of Sheila Regan Faulkner, Ms. Faulkner denies any concerted or racketeering activity. Charles Faulkner was appointed personally to represent plaintiff, pursuant to 18 U.S.C. § 33006A. His appointment was a

Page 22


personal appointment and he was the only lawyer who performed worked on Mr. Faulkner's behalf See Affidavits of Dan Scott and Sheila Faulkner. Dk. Number 62 and 63 in this file.

Claim V11
As discussed in Argument I(C),
I(C), there are no set of facts upon which plaintiff could recover damages.

Claim VIII
Plaintiff alleges in his eighth claim that the defendants committed malpractice by allowing his sentence to increased to COMPENSATE FOR UNEXTRADITED CRIMES. See paragraph 52, Amended Complaint. According to the Amended Judgment In A Criminal Case (certified copy attached to Affidavit of Donna Rae Johnson), plaintiff received the low end of the guidelines applicable for the offense of conviction and there was no increase in plaintiff's sentence according to the judgment to "compensate for unextradited crimes." See also, United States v. Lambros, 65 F.3d 698 (8th Cir. 1995) affirming guideline application (with the exception of the mandatory life sentence application). Ld. at 700 and 702.
Claims IX, X, X11, XII, XIV, XV
Plaintiff's allegations in these claims are discussed in Arguments I (B) and I(C),
infra. These claims claim a legally insufficient indictment, insufficient evidence and treaty violations. As an alternative to dismissal, summary judgment is appropriate as a matter of law on all these claims.

Claim X1
Plaintiff asserts that when defendants failed to respond to Plaintiffs Security Claim of Commercial Lien and Affidavit, pursuant to 15 U.S.C.[sic], they admitted to the


Page 23


stated facts and creating a valid contract "in commerce." See paragraph 67, Amended Complaint. Plaintiff seeks DECLARATORY JUDGMENT as to the validity of plaintiffs commercial claim and a declaration that he has a saleable, tradeable, exchangeable security in the commercial lien. Plaintiff claims to have obtained the commercial lien by default based upon an allegation of legal malpractice. Paragraph 67, Amended Complaint. Legal malpractice is a tort action, and as such may not serve as a basis for a commercial lien under Minnesota law. Minn. Stat. §336.9-104 (k)

Plaintiffs purported commercial lien was sent to the Ramsey County Abstract Division and found to have no validity. See Affidavit of Marc Diersen and attachments filed as Docket 9 62 in this case. In Minnesota, a "secured transaction" applies to " (a) any transaction which is intended to create a security interest in personal property or fixtures ...... Minn. Stat. §336.9-102 (1) (a). Plaintiffs commercial lien claim must fail because there was no security interest in property which arose from plaintiff's representation by Mr. Faulkner. Most importantly, plaintiffs commercial lien based upon Minnesota law must yield to the determination by the State authorities that a commercial lien was not established or registered by plaintiff.

Absent dismissal for failure to state a claim, plaintiffs Claim IX should result in summary judgment for defendants.

Lastly, in support of their motion for summary judgment, defendants submit the opinion of Joseph S. Friedberg that the record, file and transcript in plaintiffs criminal case do not support plaintiffs claims that his trial counsel's performance fell below an objective standard of reasonableness for a criminal defense lawyer. See Affidavit of Joseph S.


Page 24


Friedberg. Plaintiffs failure to support his claims of malpractice with an affidavit to support those claims is fatal to a malpractice claim. See Minn. Stat. § 544.42. Even if plaintiff intended to proceed without expert testimony, plaintiff cannot defeat defendants' summary judgment motion by merely resting upon allegations of denial. Plaintiff must come forward with affidavits or other admissible evidence to rebut the motion. Celotex Com. v. Catrett, 477 U.S. -117, 324 (1986).

CONCLUSION

Defendants seek dismissal with prejudice of all of plaintiffs claims pursuant to Rule 12(b)(6) and alternatively summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, if the court considers matters outside the pleadings. A threshold question for the court is whether there is a need for a trial. There is not. Instead there is but one reasonable conclusion as to the verdict in this case, and judgment for defendants as a matter of law is appropriate. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250 (1986).

Dated: June 30, 2000

RESPECTFULLY SUBMITTED,

Signed: Deborah Ellis
Attorney Lic No. 14616X

Donna Rae Johnson
Attorney Lic. No. 50945
Six West Fifth Street
Suite 700
Saint Paul, MN 55102


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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
USA

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