From: Keith Henson <email@example.com>
Date: 28 Mar 2000 17:20:36 GMT
H. Keith Henson
P.O. Box 60012
Palo Alto, CA 94306
(650) 423-4040 (pager)
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RELIGIOUS TECHNOLOGY CENTER, a ) Case No. C-96-20271RMW California non-profit corporation, ) Plaintiff, ) MOTION UNDER RULE 60(b)3, ) RULE 60(b)(6) AND ) FRAUD ON THE COURT. v. ) RELIEF FROM JUDGMENT ) DUE TO ADVERSE PARTY'S H. KEITH HENSON, an individual, ) CRIMINAL MISCONDUCT. ) OPTIONAL REQUEST FOR Defendant. ) EVIDENTIARY HEARING ___________________________________ ) Time: 9:00 am Date: May 5, 2000 Ctrm: Ronald M. Whyte BACKGROUND In August, 1999, a little over a year after the judgment date on the copyright issues in the underlying case, Mr. Robert Cipriano stepped forward with a remarkable declaration (Exhibit A, inch-thick supporting documents 1-50 omitted, but available on request) alleging criminal activities; impersonating a police officer, blackmail, bribery, suborning perjury, perjury, and witness tampering. These actions were orchestrated by the plaintiff's private investigator, Eugene Ingram, and plaintiff's lawyer, Kendrick Moxon. Graham E. Berry was the target of these activities. The court will recall that Mr. Berry was the defendant's lawyer for a period which included trial on both the copyright and the contempt issues. Rule 60 FRCP reads "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) ; (3) fraud (whether heretofore denominated *intrinsic or extrinsic*), misrepresentation, or *other misconduct of an adverse party*; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) *any other reason justifying relief from the operation of the judgment*. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., 1655, *or to set aside a judgment for fraud upon the court.* Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. ------------------------------- It has been less than a year since judgment was issued on the contempt issue, so an ordinary motion for reconsideration or reversal of judgment can be made under Rule 60(b)(3) on the contempt issue. If the court considers the abuse of my counsel, Mr. Berry, described below and in the exhibits, and organized by RTC counsel Kendrick Moxon an "extraordinary circumstance" the court could reconsider the RTC copyright judgment under FRCP 60(b)(6). "A FRCP 60(b)(6) motion will be granted only in extraordinary circumstances or under circumstances imposing extreme or undue hardship." Holland v Virginia Lee Co. (1999, WD Va) 188 FRD 241.) Also, after duly considering this matter, the court may decide that the offenses amount to an "unconscionable plan or scheme which is designed to improperly influence the court in its decision." This would establish fraud on the court (First Nat'l. Bank of Louisville v Lustig (1996, CA5 La) 96 F3d 1554.) and invoke the inherent power of the court referred to at the end of Rule 60 to set aside a judgment for fraud upon the court. Mr. Moxon's and Mr. Ingram's actions in hunting down, blackmailing, bribing, and suborning perjury from Mr. Cipriano as extensively detailed in Exhibit A was certainly an "unconscionable plan or scheme. . . designed to improperly influence the court in its decision." The expressed goal was to tie up Mr. Berry to the maximum extent possible, leaving him little time to work on a number of cases against RTC or other Scientology cases. Mr. Moxon's extrinsic fraud as an attorney is applicable to this case even if he did not formally appear before this court because it was the firm of Moxon and Kobrin which represented RTC. In any case, what was done to Mr. Berry surely constitutes "*misconduct of an adverse party*." "Since attorneys are officers of court, their allegedly dishonest conduct involving misrepresentation and perjury would constitute fraud on court. H. K. Porter Co. v Goodyear Tire & Rubber Co. (1976, CA6 Ohio) 536 F2d 1115, 191 USPQ 481, 21 FR Serv 2d 1429 "While an attorney should represent his client with singular loyalty, such loyalty does not demand that he act dishonestly or fraudulently; on contrary, attorney's loyalty to court, as officer thereof, demands integrity and honesty in dealing with the court, and when he departs from such standard in conduct of case, he perpetrates fraud upon the court." Kupferman v Consolidated Research & Mfg. Corp. (1972, CA2 NY) 459 F2d 1072, 16 FR Serv 2d 160, 19 ALR Fed 747. Paragraph 20 of Exhibit A discusses fraud on Mr. Berry through the placement of a spy in his office. Paragraph 75 discusses the subversion of his law firm partners (Lewis and Scali). "After the telephone conversation ended between Mr. Lewis and Mr. Moxon, Mr. Moxon said, 'I forgot to tell you that Lewis and Scali decided to terminate their law practice with Berry and they want to work with us.'" See also paragraph 4, Exhibit B. What Mr. Moxon and Mr. Ingram (with the aid of Mr. Cipriano), did to Mr. Berry (Exhibit A, especially paragraphs 16, 17, 18, 20, 50, 51, and 52) while deplorable and probably actionable, is not the point of this motion. It is not even the point that *I* was deprived of the best efforts of Mr. Berry. The adversarial process depends on counsel for both sides, as officers of the court, diligently seeking out and presenting all the relevant evidence and arguments necessary for the court to reach an informed judgment. Mr. Berry represented my interests before the court, but more important he was acting in the court's interests in attempting to inform the court for its best decision. Moxon and Ingram, in interfering with Mr. Berry's ability to carry out these duties, in effect attacked the court. They attempted (and to a large extent, succeeded) in depriving *the court* of the best efforts of its officer's counsel (Exhibit B, paragraph 4, declaration of Graham Berry). Under the direction of RTC, RTC's counsel and agent(s) acted in bad faith. They attempted, and to some extent succeeded, in usurping the court's legitimate decision-making authority by exerting improper influence over one of its officers. Mr. Rosen, who is a very large man, carried this activity right into the courtroom with an attempt to intimidate Mr. Berry (of slight build) during the trial. (Exhibit C.) Further, during the period where I was acting as my own attorney, and thus to some extent had the status of an officer of the court myself, my time, energy and financial resources were massively sapped by meritless RTC-funded lawsuits filed against me (and the secondary consequences thereof). I was forced to defend against Scientology staff personnel in Clearwater, Florida (Jones v. Henson), and in Los Angeles (Barton v. Henson) and Riverside (Hoden v. Henson) counties in California. Two of these (Barton and Jones) were for TROs to prevent me from picketing at events in Clearwater and Los Angeles I had previously decided not to attend, being busy with legal and other work. (See Exhibit D, page 3, paragraph 9 for the timing of RTC inspired litigation harassment just before the trial on copyright damages in this court.) None were successful, but all wasted my very limited resources, preventing me from providing my best efforts to the court. The time and resources diverted by Scientology's attacks on Mr. Berry and myself could certainly have resulted in a better defense. An example was pointed out in my (pro bono, cert. denied) appeal to the Supreme Court, (Exhibit E, top of page 22). Mr. Berry and I missed arguing major points in the copyright case, particularly in the matter of "transforming."
"Here it is beyond dispute that Henson's open letter to the District Court 'adds something new, with a further purpose and different character,' altering NOTs 34 with 'new expression, meaning or message.' Petitioner embedded NOTs 34 in a letter openly protesting the injunction issued by the District Court in the Ward action and added information about court orders expressly forbidding Scientology to claim that the use of e-meters can heal. He did so to support his assertion that Scientology was engaged in illegal conduct. Petitioner's open letter thus transforms NOTs 34 from a set of directions for purportedly 'handling physical conditions' into a scathing attack on Scientology for allegedly practicing medicine without a license, defrauding its converts, and using the courts to harass and intimidate critics.'Scientology proved the concerns I expressed in the original letter to this court were well founded by subsequently being indicted in Florida for the illegal practice of medicine in the gruesome "abuse of a dependent adult" death of Lisa McPherson. Neither Mr. Berry nor I had time to research how to properly introduce this fact to the case. My paid expert witness Gerry Armstrong was prevented by abusive RTC / Scientology actions in a state court from testifying in my case even if this court had permitted me witnesses. (Exhibit F, Order by Superior Court Judge Gary W. Thomas, ordering Mr. Armstrong jailed for sending a declaration to this court.) Exhibit F was printed off the news group a.r.s. It was posted as a response by RTC / Scientology official "firstname.lastname@example.org" to Mr. Armstrong's posting, Page 5, last paragraph, "What was done to me alone in your case is a small part of the overall, staggering fraud on the court, and obstruction of justice by the $cientology organizations, their leaders and attorneys." Their efforts against me continue without letup to this day. RTC has done what they could to prevent me from making a living and limited my time to produce legal documents. They have done this through pickets, invasion of my client's work place, expensive bankruptcy depositions of my clients, my wife and me. They have put up posters near my home and work place with my photograph captioned "Child Molester," and "Religious Bigot." They have also attacked me through the agency of their Web site www.parishioners.org. (Declaration and exhibits of a number of the posters were filed in my bankruptcy case, 98- 51326ASW-13, omitted here). RTC has certainly incurred more legal fees in the above bankruptcy case than the judgment and legal fees from this case combined. This is not the response of a party seeking economic restitution. They are paying, per Scientology policy, to use the judicial system to punish me for the simple reason that I am a critic of Scientology. The court may also refer to the recent Rule 60(b)(3) motion filed in the Ward case for abuse of the legal system in that case. While the exposure of RTC's harassment efforts against an officer of this court was exceptional, the harassment of Mr. Berry and me by RTC are sadly not unusual events for people involved as critics of Scientology. Exhibit G, sworn testimony of Paulette Cooper, and Exhibit H on Judge Casey Hill, reporting the largest libel award in Canadian history, are provided as examples. Paulette Cooper's story is backed up by documents seized in a massive raid by the FBI on Scientology that proved she had been framed by them for bomb threats written on stolen stationery that they knew had her fingerprints on it. ("Well, Miss Cooper, if you've never touched this letter before, could you tell us how your fingerprints got on it?" -- Page 6, next to last paragraph.) Page 10, in the middle of the page, details how documents were found prescribing a murder attempt intended for her, and reporting on Scientology's break-in at her lawyer's office. All of these examples stem from written Scientology "fair game" and litigation policy which are applied "religiously" by the plaintiff RTC and its associated corporations.
Never fear to hurt another in a just cause. -- L. Ron Hubbard Creation of Human Ability (Code of Honor) [Source: Excalibur Revisited by Geoffrey C. Filbert] PENALTIES FOR LOWER CONDITIONS [...] ENEMY SP Order. Fair game. May be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist. May be tricked, sued or lied to or destroyed. -- L. Ron Hubbard HCOPL 18 Oct 1967 The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, will knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly. -- L. Ron Hubbard A Manual on the Dissemination of Material******** Thousands of incidents based on this policy stretch over decades of time (Exhibit I). They range up to kidnappings (Roxanne Friend, Terry Findley, about 20 others) that were not prosecuted. (Typically victims of Scientology kidnapping are not believed because they seem psychotic, a condition resulting from physical confinement resembling that applied to Patty Hearst, with the added tortures of complete social isolation and administration of drugs such as chloral hydrate.) The abuse of Mr. Berry and me was done according to RTC policy. Not only was it done to policy, it was implemented by RTC's in-house legal counsel, Mr. Moxon. If the court considers the abuse of Mr. Berry as organized by RTC counsels Kendrick Moxon and Sandy Rosen an "extraordinary circumstance," the court could reconsider the RTC copyright judgment under FRCP 60(b)(6). "A FRCP 60(b)(6) motion will be granted only in extraordinary circumstances or under circumstances imposing extreme or undue hardship." Holland v Virginia Lee Co. (1999, WD Va) 188 FRD 241.)
"For Corruption on part of officers of court, court was under duty to take whatever action might be appropriate to sustain its integrity and to undo any resulting harm or injustice." Chicago Title & Trust Co. v Fox Theatres Corp. (1960, SD NY) 182 F Supp 18, 3 FR Serv 2d 98. "'Fraud upon the court' which would warrant relief should embrace only that species of fraud which interferes with court's discharge of its judicial functions such as bribery or corruption of court, its officers or jury." Great Coastal Express, Inc. v International Brotherhood of Teamsters, etc. (1980, ED Va) 86 FRD 131, 110 BNA LRRM 2052, 29 FR Serv 2d 1181, remanded without op (CA4 Va) 639 F2d 780, later app (CA4 Va) 675 F2d 1349, 110 BNA LRRM 2058, 93 CCH LC P13447, 33 FR Serv 2d 1234, cert den 459 US 1128, 74 L Ed 2d 978, 103 S Ct 764, 112 BNA LRRM 2280, 95 CCH LC P 13933.Mr. Moxon's organized and extensive harassment of Mr. Berry, as detailed by Mr. Cipriano, was certainly corrupt and goes far beyond the standards of courtesy expected by any court from one attorney to another. Mr. Moxon's close relation with RTC does not preclude him from this standard because his name appears as counsel on numerous filings before this court. It is noteworthy that virtually all case law pertaining to abuse of opposing counsel or parties are Scientology cases.
"The facts are as follows: On January 20, 1993, the special master awarded attorneys' fees [$2.9 million], first under the Lanham Act finding the case exceptional because the plaintiffs' [RTC] have abused the federal court system by using it, inter alia, to destroy their opponents, rather than to resolve an actual dispute over trademark law or any other legal matter.'" (Unpublished 1996 9th Circuit case RTC vs. Scott, full text at www.xenu.net/archive/CourtFiles/occf8.html)I do not expect the court to sanction RTC / Scientology for its activities outside the present case. These other actions do, however, demonstrate a worldwide, consistent pattern of behavior which strongly supports the claim I am making that RTC has engaged in similar abuses in this case. Other countries, France, England, Belgium, Spain, Germany and Greece, have taken steps to curb Scientology abuses. A Government panel in France is calling for the dissolution and banning of Scientology in that country. "For the internal security of the state, we are afraid. . . . . [I]n the view of the government panel . . . Scientology constitutes a clear and present danger to 'public order' and 'the dignity of the human person'" (pages one and two, Exhibit J, LA Times Feb. 29, 2000) The Belgian authorities also have taken steps in this direction following their raid in September 1999 that seized "tons of documents and tens of computers, . . . [T]here are 'very sound indications that Scientology committed tax fraud" (Page one, last two paragraphs, Exhibit K, translation from De Morgen, March 17, 2000). The United States Justice system is eventually going to have to stop being a tool to support the abusive and criminal activities of Scientology. It might as well be with this case. For the abuses detailed above and in the Exhibits, defendant petitions the court under Rule 60(b)(3), Rule 60(b)(6) and / or the inherent power of the courts to deal with fraud upon the courts, to reverse the judgments in the copyright and contempt matters this court has ruled on. Defendant further petitions the court for sanctions against RTC for all his Scientology related legal expenses from the date of filing of this case. If this motion is contested by RTC, or if, after due consideration, there is any doubt in the court's mind that fraud on the court was perpetrated by plaintiff, RTC and plaintiff's lawyer Kendirck Moxon, then I request that an evidentiary hearing be held as provided under the FRCP. Mr. Berry has indicated his willingness to appear; Mr. Cipriano would be available, and the court has authority to force the appearance of Mr. Moxon, Ms. Kobrin, and Mr. Rosen. There are two additional witnesses the court may wish to call, the details of which may be provided later. To the extent there are statements of fact in this document, they are true to the best of my knowledge and are made under penalty of perjury under the laws of the United States. Respectfully submitted, H. Keith Henson pro se, March 26, 2000
From: Gerry Armstrong <email@example.com>
Subject: Re: Rule 60 Motion, as filed.
Date: Tue, 28 Mar 2000 10:03:28 -0800
Message-ID: <firstname.lastname@example.org> Note that the declaration was sent to Judge Whyte *because* $cientology lawyers threatened me, a subpoenaed witness for Grady Ward, and a retained expert witness for you. Judge Whyte should be made to confront the fact that he *rewarded* $cientology for threatening a witness in litigation before him. What a message that sends to the criminal cult and to anyone who would litigate against them. And what a message Judge Whyte sends to anyone who wants a courtroom in which a party wants to be able to freely intimidate witnesses. That federal courtroom in San Jose is corrupt. © Gerry Armstrong