Re: Rule 60 Opposition Reply
From: Keith Henson <email@example.com>
Date: 22 Apr 2000 02:11:48 GMT
First, I managed to get the reply into the drop box on time.
Second, Judge Whyte gave me an extra day to get it filed, third
I got this little Fax note from Tom Hogan.
Dear Mr. Henson
This will confirm your conversations today with my
associate, Leslie Holmes. We are not willing to stipulate to a
short continuance for you to file your reply papers in support
of your 60(b) motion. Instead, we strongly urge that you
forthwith voluntarily withdraw your motion as it is whole
without merit. Otherwise, plaintiff will proceed with its
request for sanctions for your continued frivolous activites
Thomas R. Hogan
From: Keith Henson <firstname.lastname@example.org>
Subject: Re: Rule 60 Opposition
Date: 21 Apr 2000 23:08:16 GMT
I got held up with problems with the exhibits. Called Judge Whyte to
request a one day extention. His clerk said I should try to get Tom
Hogan to stipulate and agree, but if not, fax them an informal request.
I tried, but Hogan was out of touch, and there was nobody with
authority to do this. So I faxed a request to the court and when I
called to check on it getting through I asked if they would like a
copy of the reply since I had it done. They said yes (which amounts
to filing it?) so I asked Tom's office if they wanted a copy, and
since they did, faxed them one too.
So, since RTC/OSA/wgert etc has a copy, I might as well post and le
you folks see it. I *might* be able to file an ammended one fixing
spelling or grammer issues when I file the exhibits Monday, so
send me corrections if you wish.
PS, and *thanks* for the help. You know who you are.
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, ) REPLY TO OPPOSITION TO
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
RTC's opposition to defendant's motion is remarkable
for what is not in it. Unlike most previous filings, there are
no declarations from Mr. Moxon, Mr. Rosen, Mrs. Kobrin, or even
Mr. Hogan denying statements of fact in the declarations from
Mr. Cipriano, Mr. Ward, or Mr. Berry.
This success of this motion depends on the court's
answers to three important questions.
1. Were there or were there not unethical actions
taken by RTC's counsel Mr. Moxon (or his agents) against Berry
and defendant Henson (when in pro se) which damaged in any way
their ability to defend the case at hand?
2. And if so, then had these actions not been carried
out, could Henson and/or Berry have provided arguments/citations
which might have caused the court to rule differently?
3. Finally, and most important, were these actions of
RTC's counsel toward defendant and defendant's counsel so
abusive and shocking as to negate plaintiff's argument in any
case and require the court to rule for the defendant on grounds
of fraud on the court?
RTC has failed to provide a clear, unambiguous and
credible denial to the first question. Defendant has supplied
considerable evidence, including sworn declarations, and
numerous documents, many signed by Mr. Moxon supporting his
claims. RTC has only made general statements, not under penalty
of perjury, dismissing the defendant's claims as "irrelevant,
immaterial, inflammatory, and indeed fantastic, not to mention
false." (page 3, lines 1-2). RTC's statements should be weighed
As to the second question, (and in response to
Plaintiff's Opp, FN 6) it is clear from the cogent arguments put
forward (too late) by appeal pro bono counsel Heller, Ermine,
White, and McAuliffe in defendant's ninth circuit appeal, in the
Supreme Court brief and Reply to Brief in Opposition (Exhibit
AA) by HEWM and by the Electronic Frontier Foundation's Supreme
Court amicus brief (Exhibit BB) that this court could have been
provided much better argument and case cites for the defense,
particularly in the matters of "transforming" analysis (per
Campbell), the overwhelming importance in copyright analysis of
the lack of commercial intent in the defendant's exposure of
NOTs 34, and the political nature of the defendant's First
Amendment speech rights.
With respect to the third question, Plaintiff RTC
admits to spending about a million dollars employing several law
firms and at least a dozen expensive lawyers (some of them
leading authorities) against a defendant mostly in pro se. Not
content in overwhelming the defendant with complicated legal
argument and outspending him by a factor of over 100 to 1, they
filed unmerited suits in widely separated places and enlisted
the aid of law enforcement to arrest the defendant while he was
exercising his constitution right of protest. This was in
addition to long running actions against defendant's counsel.
The clear effect was to divert the defendant's limited resources
(including defendant's counsel) away from providing this court
with better argument on which to base its judgment. Such
tactics by plaintiff's counsel betray the Plaintiff's
inexcusable willingness to subvert the judicial process to
secure a judgment favourable to themselves at any cost in money
or ethical or criminal violations and regardless of the merits
of their case.
RTC does generally deny the facts supporting the
motion: "a series of allegations that are irrelevant,
immaterial, inflammatory, and indeed fantastic, not to mention
false." (page 3, lines 1-2) but this statement was not made
under penalty of perjury. Given the other statements and
activities of RTC's lawyers, it should be given appropriate
weight, or perhaps Mr. Hogan should be given an opportunity to
disclose how he has come to this knowledge and to sign the
motion under penalty of perjury.
POINT BY POINT
Page 1, line 3 "The motion merely rehashes unfounded
allegations . . . ."
The Cipriano Declaration is neither a rehash (dated
after this case was abjudicated) nor is it unfounded, with some
50 supporting Exhibits (Exhibit CC #1-50, reluctantly--because
of reproduction cost--provided), and the investigation of a
newspaper (Exhibit 2 of Berry motion Exhibit DD).
Line 3 "burdened this Court . . . with numerous
frivolous filings . . ." To the best of my memory, this court
has never described defendant's motions as being "frivolous."
Line 19 "Thus, as a matter of law, under Rule 60(b)
(3), Henson may not request relief from the substantive judgment
in the copyright case, which was entered more than a year ago .
. . ."
Though defendant's asked for the copyright case to be
considered under (b)(6) or the inherent power of the court to
deal with fraud on the court, the court could revisit the
copyright judgment under (b)(3). This section refers to fraud,
the statues normally toll for fraud until the fraud is
discovered. Defendant only became aware of fraud on the court
about August 14, 1999.
Page 2 line 6 "this court . . . to admonish that
"this is not a case about whether or not... Scientologists . . .
have done good or bad things . . . .'" Defendant notes that
this motion is NOT about Scientology's illegal practices
generally but about their fraud on this court in the present
Defendant does not believe a court can overlook
evidence of shocking corruption by its officers, Scientologists
or not, when they are involved in impersonating a police
officer, intimidation, coercion, extortion, solicitation,
bribery, witness tampering, perjury, subornation of perjury,
blackmail, collusion, obstruction of justice, mail fraud, wire
fraud, malicious prosecution, vexatious litigation, stalking,
wiretapping, invasion of privacy, libel, slander, bankruptcy
fraud, insurance fraud, fraud upon the courts and conspiracy to
commit all of the foregoing. Every one of these crimes was
aimed directly on defendant and his counsel, and are relevant
elements of fraud on the court in the present case and motion.
"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
Page 3, line 9, "Henson and Berry were obviously aware
before trial in 1998 of any alleged distractions caused by
lawsuits against Henson or Berry's own lawsuit against Cipriano,
including any alleged conduct of Mr. Moxon or Mr. Ingram."
This is just not so. While defendant and his counse
were well aware of the distractions, (it is hard to unaware of
put in a choke hold by Scientology thugs) neither of us would
have guessed that the person orchestrating the attacks would be
an officer of the court, RTC's counsel Kendrick Moxon.
Page 3, line 18, describing Mr. Cipriano is remarkable
considering that Mr. Moxon solicited Mr. Cipriano representation
at no charge and transferred large sums of money to him over an
extended period. If Mr. Cipriano was this unsavory a character,
why was Mr. Moxon doing paying him and representing him without
Page 4, line 4, "Even if these frivolous allegations
were true, they would still be irrelevant, for none of them even
remotely establishes fraud, misrepresentation, or misconduct of
an adverse party in the litigation itself that undermines the
Defendant could argue that had defendant's counsel not
been distracted by the fraud on the court actions of one of
RTC's counsel and the bullying of another, defendant's counsel
could have better advised defendant that the diskette might have
contained sealed material. In this case, the actions which led
to the contempt would have never occurred.
But defendant is not asking so much for
reconsideration of the contempt judgment based being able to
produce better arguments if not harassed and distracted as he is
asking the court to reconsider based on plaintiff's/plaintiff's
counsel's gross behavior. Defendant's behavior leading to
contempt was negligent, not willful or intentional. Plaintiff's
counsel's behavior listed above and described in detail in the
Cipriano declaration was willful, intentional, and malicious.
Page 4, line 18, "II THE MOTION FAILS TO MEET THE
STANDARDS FOR RELIEF UNDER RULE 60(b) (6), BECAUSE NONE OF ITS
ALLEGATIONS CONTAIN ANY INDICATION THAT THE UNDERLYING JUDGMENTS
Rule 60(b)(6) does not require a claim that the
underlying judgements were erroneous. It reads:
" . . . (6) any other reason justifying relief from the
operation of the judgment.
Given the onesidedness of the legal argument provided
to the court, the judgments in that limited context were
probably not erroneous (at least not obviously).
Had defendant's house burned down "accidently" during
the pendency of this litigation (causing legal difficulties
because the fire diverted time and destroyed resources) and it
was later discovered that the opposing party or party's counsel
had ordered arson, defendant could ask for relief of judgment
under Rule 60(b)(6) and would most likely get relief from the
What RTC's counsel did--with the full support of RTC--
was no less loathsome than arson. There is solid proof of
actions against Mr. Berry, and strong circumstantial evidence
that similar actions were taken with malice against the
The court may wonder why law enforcement has not
arrested Mr. Moxon and Mr. Ingram.
"Were any ordinary citizen, or any other lawyer but Moxon to
have engaged in a mere fraction of Moxons lawlessness, they
would be immediately arrested and easily convicted."
(Exhibit DD, page 16 of Berry's Rule 60 motion.)
The Cipriano declaration, Exhibit A of the underlying
motion, was the subject of a long newspaper story in Los
Angeles, Double Crossed, by Tony Ortega (Subtitle: The Church of
Scientology has a reputation for ruthless going after its
enemies. Robert Cipriano claims Scientologists rewarded him for
doing just that. Now he has turned on them.) Exhibit 2 of Berry
motion (Exhibit DD).
That declaration, and the story, have been read by
dozens of FBI agents, from multiple offices, several US
attorneys, even the Los Angeles District Attorney's office.
None of them have expressed doubts the factual nature of the
events described in that declaration. There have been thousands
of web downloads of the Cipriano declaration from various law
enforcement agencies, Treasury and the Department of Justice.
But when you ask a law enforcement agency why these reported
crimes are being ignored you get typical comments, "It would
wreck our budget to go after CoS over these matters." Or "Since
it is a local (or interstate) crime, it is not something we do.
Go talk to XXX about it, here is their phone number." Or,
"These guys crushed the IRS, you expect us to be able to do
anything about it?" (Exhibit FF, letter from Los Angeles DA.)
Page 4 line 20. "Relief from judgment under Rule
60(b) (6) is an extraordinary and rare remedy."
The abuse of defendant's counsel by an officer of the
court as detailed in the exhibits is extraordinary, enough so to
justify an extraordinary and rare remedy. The exposure of this
abuse and fraud is unique (to defendant's knowledge) though
defendant understands that several other lawyers opposing
Scientology and a number of judges have been subjected to
similar treatment with the object of degrading their efficiency
or driving them out of the way. (Exhibit EE, American Lawyer
article). Had RTC's attorney Moxon not thought Mr. Cipriano's
usefulness was at an end and discarded him like a used tissue,
these abuses might never have come to the attention of the
defendant much less the court.
Page 5, line 20 "III. THE MOTION FAILS TO MEET THE
STANDARDS FOR RELIEF UNDER 28 U.S.C.SS 1655, BECAUSE IT DOES NOT
ALLEGE ANY ATTEMPT TO IMPROPERLY INFLUENCE THE COURT.
Defendant's only mention of U.S.C SS 1655 was in his
quote of Rule 60(b). His concern was with the underlined
"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*."
Page 5, line 27 ". . . . or is a fraud perpetrated by
officers of the court so that the judicial machinery can not
perform in the usual manner its impartial task of adjudging
cases that are presented for adjudication."
Questions for the Court:
1. Was Moxon an officer of the court through the firm
of Moxon and Kobrin?
2. Were the actions described in the declarations
intended to influence the court by interfering with defendant in
pro se and/or with his counsel?
Page 6 line 12 "IV. THE COURT SHOULD SANCTION
HENSON, TO DETER HIM FROM FUTURE ABUSIVE LITIGATION MISCONDUCT."
Page 9, line 4, "Here, Henson's accumulated misconduct
has plainly reached the point of unreasonable vexatiousness, and
the Court should deal with it accordingly." (Asking the court
to define defendant as a vexatious litigant.)
Defendant was tempted not to oppose this part of the
opposition, because legal research turned up no previous
examples of a person being declared a vexatious defendant. But
defendant will forego obtaining this dubious distinction by
default. The court might note that the defendant has not filed
a single case against RTC or other branches of Scientology
(unless one counts the IRS as a branch) while having been sued
no fewer than 4 times (5 including bankruptcy advisory
proceedings) by RTC or those it controls. But such is the topsy
turvy world of Scientology's abusive litigation claims
Defendant petitions the court for the remedies
requested in the motion and/or requests an evidentiary hearing
on matters where the court has questions not fully answered in
the pleadings or the exhibits.
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.
H. Keith Henson, pro se, April 21, 2000