Petition — Cataldo v. Land

IN THE “. SNe

SUPREME COURT OF THE UNITED STATES

TERM, 1978

No. -~G%- 1569

ANTHONY B. CATALDO,

Petitioner,

~against-

DAVID P. LAND, T. GORMAN REILLY

and ROBERT LEVINE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

‘TO THE COURT OF APPEALS,

SECOND CIRCUIT

ANTHONY B. CATALDO

Attorney for petitioners,

and pro se

Office & P.O. Address

lll Broadway

New York, New York 10006

212-962-0965

TABLE OF CONTENTS

Petition for Writ of Certiorari

Opinions Below

Jurisdiction

Questions Involved

Constitutional Statutory and Rule

Provision Involved

Concise Statement of Case

Reasons for the Grant of the Writ

POINT I

THE SUBSTANTIVE LAW

OF THE STATE WHERE A

SUIT IS BROUGHT MUST BE

APPLIED IN A REMOVED SUIT

POINT II

WASN'T THE DEFENSE OF RES

JUDICATA AND COLLATERAL

ESTOPPEL MISAPPLIED

POINT III

PERJURY ENGAGED IN

BY GOVERNMENT AGENTS

IS NOT CONDONED EITHER

BY THE FEDERAL COURTS OR

BY THE STATE COURTS

22

24

29

40

POINT IV

THE DENIAL OF THE PLAINTIFFS'

MOTION TO STRIKE THE

APPEARANCE OF THE UNITED

STATES ATTORNEY FOR THESE

DEFENDANTS WAS ERRONEOUS

CONCLUSION

APPENDIX A

APPENDIX B

APPENDIX C

CITATIONS TO CASES

ALLSTATE INSURANCE CO. v. CHARNESKI,

286 F.(2) 238

AMERICAN WELL WORKS v. LAYNE, 241

U.S. 257

AUTOMOBILE CLUB OF MICHIGAN v. COMM'R,

230 F.(2) 585

BELL v. HOOD, 327 U.S. 678

BERGER v. UNITED STATES, 295 U.S. 78

BIVENS v. SIX UNKNOWN FED. NARCOTICS

AGENTS, 403 U.S. 388

BYRD v. BLUE RIDGE RURAL ELECTRIC

COOPERATIVE, INC., 356 U.S. 525, 78 S.

Ct. 893, 2 L.ed. 2nd 953

CALHOUN COUNTY, FLORIDA v. ROBERTS,

137 F.(2) 130

44

45

ye

he.

62

26

25

38

41

46

41

26

45

COHEN v. BENEFICIAL INDUSTRIAL LOAN

CORP., 337 U.S. 541, 69 S.Ct. 1221,

93 L.ed. 1528

C.I.R. v. PACIFIC MILLS, 207 F.(2) 177

COMM'R INT. REV. v. SUNNEN, 333 U.S.

591

COOK v. CONNERS, 215 N.Y. 175

COWLEY v. NORTHERN PAC. R.R. CO.,

159 U.S. 569, 582

DE LIMA v. BIDWELL, i82 U.S. 1

ERIE v. TOMPKINS, 304 U.S. 64

EVERETT v. EVERETT, 180 N.Y. 452

POWLER v. NATIONAL SCREEN SERVICE,

349 U.S. 322

GENERAL INV. CO. v. LAKE SHORE RY.,

260 U.S. 261, 288

GRAVES v. PEO. N.Y., ex rel O'KEEFE,

306 U.S. 466

GRIFFITH v. BANK OF N.Y., 147 FP. (2)

899, 901

GUARANTY TRUST CO. v. YORK, 326 U.S.

99

37

28,

25

25

35

: HARRIS v. WASHINGTON, 404 U.S. 55,

56, 92 S.Ct. 183, 184 31

HAZEL ATLAS CO. v. HARTFORD CO.,

322 U.S. 238, 244-246 41, 42

ISRAEL v. WOOD DOLSON CORP., 1 N.Y.

(2) 116, 118 31

KINNEAR WEED CORP. v. HUMBLE OIL,

403 F.(2) 437 39

KLAXON CO. v. STENTOR ELEC. MFG. CO.,

313 U.S. 487, 496-497; 61 S.Ct. 1020,

1021, 8S L.ed. 1477 26

KORATRON COMPANY v. DEERING MILLIKIN

) | INC., 418 F.(2) 1314, 1317 26

LEASE v. UNITED STATES, 346 F.(2) 696 38

LEVINE v. O'MALLEY, 33 A.D.(2) 874,

307 N.Y¥.S.(2) 918 35

MOONEY v. HOLOHAN, 294 U.S. 103,

| 112-113 41

MORHAUS v. SUPREME COURT OF THE STATE

OF NEW YORK, 293 N.Y. 131 41

NEW YORK STATE LABOR BOARD v. HOLLAND,

| 294 N.Y. 480 31

PENN DAIRIES, INC. v. MILK CONTROL

COMM., 318 U.S. 261 27

| PEO v. SAVVIDES, 1 N.Y.(2) 554 41

| PEO v. SCHWARTZMAN, 24 N.Y.(2) 241 41

PERKINS v. GUARANTY TRUST CO.,

274 N.Y. 250, 257

PLANT CITY STEEL CORP. v. NATIONAL '

MACHINE EXCHANGE, 23 N.Y.(2) 472, 475

RAGAN v. MERCHANTS TRANSFER &

WAREHOUSE CO., 337 U.S. 530,69 S.Ct.

RAILWAY MAIL ASS'N v. CORSI, 322

U.S. 88

ROTH v. MC ALLISTER BROS., INC.,

315 F.(2) 143

SMITH v. KIRKPATRICK, 305 N.Y. 66

SO. PAC. RY. v. UNITED STATES, 168

U.S. 1, 48

STATE INSURANCE FUND v. LOW, 3 N.Y.

(2) 590, 170 N.Y¥.S.(2) 795

UNITED SHOE MACHINERY v. UNITED

STATES, 258 U.S. 451, 458, 459

UNITED STATES v. MOSER, 266 U.S. 236,

241

UNITED STATES v. SAN JACINTO, 125 U.S.

273

UNITED STATES v. THROCKMORTON, 98 U.S.

61

UNIVERSAL OIL CO. v. ROOT RFG. CO.,

328 U.S. 575, 580

36

31

26

27

31

31

31

36

31

31

45

33

42

VERPLANCK v. VAN BUREN, 76 N.Y. 247

WOODS v. .NTERSTATE REALTY CO., 237

36

U.S. 535, 69 S.Ct. 1235, 93 L.ed. 1524 26.

STATUTES, RULES and AUTHORITIES

UNITED STATES CONSTITUTION, SEVENTH

AMENDMENT

RULES OF THE SUPREME COURT, Rule 19

43

NEW YORK STATE CONSTITUTION, Article l,

Section 2

28 U.S.C., Section 1254

JUDICIARY LAW OF NEW YORK, Section 487

Rule 38(2), RULES OF FEDERAL CIVIL

PROCEDURE

Rule 60(b), RULES OF FEDERAL CIVIL

PROCEDURE

CIVIL PRACTICE LAW and RULES

Section 4101

Section 5015

AMys JUR. 2nd, Vol. 46, JUDGMENTS,

Section 394

Section 404

AM. JUR. 2nd, Vol. 72, STATUTES,

Section 19

6

5

7

25, 28

5

30, 35

Moore's, FEDERAL PRACTICE

‘Vol. 1B, para. 0.407 34

Vol. 7, p. 505, et seq. 42

WEINSTEIN-KORN-MILLER, New York

Practice, par. 5015.08 35

5015.09 35

5015.10 35

A SO Ae Tt TO NN, Nest inn ae cated a «

es

i a Re 6 Men me

—~ ee

SUPREME COURT OF THE UNITED STATES

ee x

ANTHONY B. CATALDO and

ADA W. CATALDO,

Petitioners, PETITION

~against- For WRIT

of

' DAVID P. LAND, T. GORMAN mre: CERTIORARI

and ROBERT LEVINE,

Respondents.

Ce x

TO THE HONORABLE THE CHIEF-JUSTICE

and THE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

The petitioners, ANTHONY B. CATALDO

and ADA W. CATALDO respectfully pray this

Court that a writ of certiorari issue to

review the decision and judgment of the

United States Court of Appeals for the

Second Circuit made the 2nd day of February,

1978, unanimously affirming the decision

and judgment of the United States District

:

;

“~

Court for the Eastern District of New

York made June 23, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals

has not been reported. Attached hereto

is a true copy of the same. It is marked

APPENDIX A. The opinion and judgment of

the District Court has not been. reported.

Attached hereto is a true copy of the same

marked APPENDIX B. No re-hearing of the

opinions or decisions below were sought

and no re-hearings were had.

JURISDICTION

The judgment of affirmance of the

Court of Appeals was entered February 2,

1978. This petition will be filed within

90 days of that date. Jurisdiction of

——— -

this Court is invoked under 28 USC

1254(1). |

TIONS INVOLVED

1. Where, in this action to recover

compensatory and exemplary damages for

fraud and deceit practiced upon the

District Court to the prejudice and

detriment of petitioners, who were

plaintiffs in a tax refund suit against

the United States, in the Federal District

Court for the Southern District of New

York, wherein defendants Land and Reilly

were the Assistant-United States Attorneys

conducting the defense of that refund

suit, and defendant Levine was an Internal

Revenue agent, one of those that had

audited the books of the plaintiff's

husband, a practicing attorney, was the

Li |

SEO, SS a ud —_—_— —

decision of the District Court dismissing

petitioners' complaint for a refund, res

‘ judicata or operable as a bar under the

- doctrine of collateral estoppel to this

fraud suit? And, were the allegations

showing that the dismissal of the tax

refund suit was procured by the fraud

and deceit upon the Court by these

defendants insufficient to support the

complaint for fraud?

2. Was the principle that a Federal

Court in a removed case must apply the

substantive law of the State in whose

court the actiowas started, properly

ignored by the District Court and the

Court of Appeals as was done in this

case?

——— —_- — —..: -- - °° ~

CONSTITUTIONAL, STATUTORY AND

RULE PROVISIONS INVOLVED

28 U.S.C., Section 1254 reads, in

pertinent part:

"Cases in the Court of

Appeals may be reviewed by the

Supreme Court in the following

methods:

1. By Writ of Certiorari

granted upon the petition of

any party to any civil or

criminal case * * *,"

The Seventh Amendment of the United

States Constitution states, in pertinent

part:

"Civil Trials. Ina suit at

common law, when the value in

controversy shall exceed twenty

dollars, the right of trial by jury

shall be preserved * * *,."

Rule 38(2) of the Rules of Federal

Civil Procedure provides, in pertinent

part:

"(a) RIGHT PRESERVED. The right

of trial by jury as declared in the

em a mai te

Seventh Amendment to the Consti-

tution or as given by a statute

of the United States shall be

preserved to the parties

inviolate."

Rule 60(b) of the Rules of Federal

Civil Procedure reads, in pertinent part:

"Rule 60 Relief from Judgment

Or order. (b) * * * the court may

relieve a party * * * from a final

judgment for * * * (3) fraud

(whether heretofore denominated

intrinsic or extrinsic, misrepre-

sentation, or other misconduct of

an adverse party."

Article 1, Section 2, of the New

York State Constitution provides, in

pertinent part:

"Trial by jury in all cases in

which it had heretofore been

guaranteed by Constitutional

provision shall remain inviolate

forever."

Civil Practice Law and Rules,

Section 4101 provides, in pertinent part:

"(a) In the following actions,

the issues of fact shall be tried

by a jury * * * (1) An action in

which a party demands and sets

forth facts which would permit a

judgment for a sum of money

only * * *,*

Civil Practice Law and Rules,

Section 5015, reads, in pertinent part:

"The court which rendered a

judgment or order may relieve a

party from it upon such terms as

may be just, on motion of any

interested person with such notice

as the court may direct upon the

ground of * * * , ‘

"3. Fraud, misrepresentation,

or other misconduct of an adverse

party * * *,"

Section 487, Judiciary Law of New

York, reads, in pertinent part:

"Section 487. Misconduct of

Attorneys. An attorney or

counsellor who:

1. Is guilty of any deceit or

collusions, with intent to

deceive the court or any party

> i a

is guilty of a misdemeanor, and in

addition to the punishment prescribed

ee eee ee ee ee eee ee

therefore by the penal law, he

forfeits to the party injured

treble damages to be recovered

in a civil action."

CONCISE STATEMENT OF THE CASE

In 1969, petitioners instituted

a suit in the United States District Court

for the Southern District of New York for

the recovery of $2,718.59 collected from

them under an arbitrary and capricious

assessment for additional income taxes

resulting from a disallowance of certain

items of business deductions taken in

Schedule C by the lawyer-taxpayer.

No other disagreement with the return than

the disallowance of the expenses was

presented by the Commissioner.

In preparation for the trial, the

Government produced Mr. Levine as its

witness in a pre-trial discovery deposition.

a ners ee ee Re eee ce

That witness testified under oath

that as part of an audit he had made of

the lawyer-taxpayer's books, he examined

the lawyer's diary to check the claimed

notations of petty cash spent through

the year in the return and that he made

a tape of those items of less than $25.00

and another tape of items of more than

$25.00, and he found that a prior

auditor's totals of those amounts were

correct. He also testified that two

items, one of $1,084.57, and the other

of $2,282.50 included in the disallowances

made by the Commissioner did not relate

to any claims of expenses reported by

the taxpayer, but they appeared to have

been calculations of the conferee at the

Appellate Division, the nature of which

he did not understand. He also testified

that he had made a report of his findings

to the Appellate Division.

Also, the United States was

caused to file formal admissions on four

separate occasions in respect of specific

items of claimed deductions of the

taxpayer as a result of which, only a

very small number of items remained in

dispute. Thus, plaintiffs were hopeful

of using these admissions to prove the

arbitrariness and capriciousness of the

assessment.

The Honorable Richard H. Levet was

assigned to try the case. At the first

meeting held in chambers, a law assistant,

a Mr. Madden appeared to be assisting the

Judge. Mr. Madden's interest in this case

showed a personal disposition of making

disparaging remarks about plaintiffs which

tended to prejudice the Judge against

Plaintiffs' interests. ‘>. Madden caused

the Judge, among other things at the trial,

- 10 «-

to sign a contempt order which

untruthfully stated that it was a civil

contempt, when it was a criminal contempt;

that an order to show cause why the

lawyer-taxpayer should not be held for

contempt was issued, when there was no

such order to show cause ever made, and

in causing the order to be signed

contrary to the provision of Rule 42(b),

Federal Rules of Civil Procedure,

providing a hearing on specification of

charges which proceedings were never

followed. In addition, said Mr. Madden

misinformed the Judge about plaintiff-

lawyer's engagements in the trials in

other cases to force the lawyer-taxpayer

to try this case. Mr. Madden failed to

inform the Judge about the contents and

relevance of plaintiff's memorandum for

trial and of certain proferred exhibits,

- li «

and even, persuaded the Judge to decide

upon an order of trial that was diamet-

rically opposed to the order of trial as

set forth in plaintiffs' memorandum. The

Judge directed plaintiffs to follow order

of trial suggested by Mr. Madden or he

would hold plaintiffs in contempt. The

plaintiffs did as directed and lost the

case, and were held for contempt anyway.

By obeying the Judge plaintiffs were

obliged to try issues not established

under the pleadings and they were deprived

of the right to claim that the assessment

was arbitrary and capricious. Thus, they

were not able to avoid the presumption of

the correctness of the assessment, but were

forced to try to prove that items admitted

by the Commissioner as deductible were

deductible, but without any prior notice

that defense counsel had disputed the new

items. This change of procedure was

- 12 «

effectuated by Mr. Madden and defense

counsel (defendants Land and Reilly)

colluding to include in defendants’ trial

memorandum a list of expenses as disputed

items that had already been allowed by the

Commissioner. The Court directed plaintiff-

lawyer to abandon his prepared order of

proof and to offer evidence on the deduc-

tibility of the items listed in defendant's

trial memorandum without amendment of

pleadings and irrespective of the rule of

cases establishing that it was the

Government's burden of proving the correct-

ness of such new items in dispute.

On the trial, defense counsel

caused Mr. Levine to commit perjury by

inducing him to testify that he had never

seen the lawyer's diary, in consequence of

which the Trial Court disallowed all petty

cash expenses. They caused said Levine to

» 13 «

Say that the two disallowances of $1,084.59

and $2,282.50 were duly disallowed by the

Commissioner, and they objected to the

production of Mr. Levine's report despite

a subpoena duces tecum properly served upon

Mr. Levine. In fact, they objected to the

production of all documents specified in

said subpoena. Such objections were

unlawful, but through the intervention of

Mr. Madden, supporting defense counsels’

statements, the Court refused to order the

productimof the documents requested.

Defense counsel also advanced unlawful

conceptions of the weight of the evidence

in that nothing stated by plaintiff orally

was evidence unless supported by writings.

As a consequence, defense counsel claimed

an impossible quality of proof for items

of expenses such as court stenographer's

fees and other court charges paid by the

TPR pe = _ = ~

taxpayer. Such expenses were disallowed

despite the presentation of the checks in

payment. The objection was to the oral

testimony identifying the payee as a

court reporter and identifying the name of

the case in which the cost was incurred.

These were but some of the unlawful claims

of defense counsel on the trial. There

were others, mostly cumulative, but this

would add to the weight of the truth of

Plaintiffs' accusation of collusively

engaging with Mr. Madden, or advancing

unsound law and untrue facts to the Court

by defense counsel, with a tongue-in-cheek

attitude, knowing that the Judge would find

against the taxpayers and he did, on every

occasion. This trial, complete with the

finding of the lawyer-taxpayer for contempt

frustrated due process.

and fining him $50.00/ Plaintiffs were

the butt of wilful, intentional, obstructive

;

= 18 «

tactics by employees of the defendant to

interfere with the order of proof of

plaintiff's case, to prevent the intro-

duction of evidence, to become the recip-

ient of sarcastic remarks by the Trial

Judge and to observe Mr. Madden actively

Suggesting to the Judge in open court to

disregard every oral claim made by the

taxpayer.

After the dismissal of the complaint

in the refund suit was entered, an appeal

was taken. The Court of Appeals affirmed.

Later, separate appeals were taken from

the order of contempt. “hey were both

dismissed, on motions of the respondent.

The second dismissal was for an alleged

late filing of the appeal, but it included

a statement by the Court of Appeals that it

appeared from the arguments that the contempt

holding was proper. Why the Court of Appeals

- 16 -

would volunteer such a statement after it

had dismissed the appeal is inexplicable,

as well as erroneous.

On re-argument, petitioner called

to the Court's attention that passing upon

the merits upon the basis of oral statements

made on the argument instead of the Record

was error. Especially, as the Court had

decided the appeal was untimely, and it had

dismissed the appeal for that reason. The

Court of Appeals changed its reasons for

upholding the contempt charge by saying

that it had referred to the Appendix on the

first appeal and found support for its

decision. As a participant in that trial,

the lawyer-taxpayer knew that there was

no contempt of court committed. A petition

for a writ to this Court was denied on

May 19, 1976. A true copy of this Court's

letter of that date is attached hereto and

marked APPENDIX Cc.

o 19 «

Aggrieved and frustrated by the

desecration of justice under American law,

petitioner sought to sue defense counsel

and Mr. Levine as the perpetrators of the

crimes of perjury, subornation of perjury,

conspiracy to deceive and defraud the Court

and the plaintiff, by causing the obstruction

of justice in the tax refund suit. Suit

was brought in the Supreme Court of the

State of New York, in Queens County, the

residence of these petitioners. Two causes

of action were stated. The first, against

the lawyers, Land and Reilly, for violation

of Section487 of the Judiciary Law, which

forbids lawyers from wilfully deceiving, or

consenting to deceive a court to the injury

of a party, and if they do, they forfeit

treble damages to be recovered in a civil

suit. The damages were stated to be $10,000.00

for compensatory damages. Adding $30,000.00

- 18 -

for each defendant made a total of

$100,000.00.

The second cause of action states

a conspiracy among defense counsel and

Levine to defraud the Court and petitioners

as a result of the same criminal misconduct,

and asks for $30,000.00 from Levine, which

is included in the total of $100,000.00

mentioned above. The United States Attorney

for the Eastern District of New York removed

this state court suit to the United States

District Court for the Eastern District of

New York under the provisions of 28 U.S.C.

1442. A motion to strike the appearance

of the United States Attorney for these

defendants was made because of the criminal

nature of the action, and because no recovery

was asked from the United States of America.

Also, the United States Attorney would be

acting beyond the scope of his authority

- 19 -

to etdhas to defend employees charged with

criminal conduct when that conduct was not

within the scope of the employees’ duties.

The Court denied the motion. A jury demand

was duly made and filed.

Two years of waiting for trial passed

when defendants moved to dismiss the complaint

for res judicata, collateral estoppel and

absolute or qualified privilege, despite

the fact that the only defense pleaded was

justification because of the Claim that

what defendants did, they acted in the

belief that they were acting in the good

faith performance of their duties. Plaintiffs

cross-moved for partial summary judgment

claiming that there were no denials of the

criminal conduct as charged in the first

cause of action. The record of the trial

showed at least the participation of these

lawyers in the perjurious testimony of

- 20 «

Mr. Levine and in their unlawful deception

of the Court in claiming the application

of law that did not exist and facts that

did not exist.

The District Court granted defendants’

motion and denied plaintiffs' cross-motion,

but it did so on the basis of a misreading

of the facts regarding the extent of the

action plaintiffs took against the criminal

conduct within the tax refund suit. The

Court then denied the fraud. Yet, the

record shows the perjury and the false claims

to untrue facts and inapplicable law, and

corroborates the activity of Mr. Madden as

stated above. Further, the District Court

erred in applying res judicata or collateral

estoppel. It did not pass upon the question

of privilege. This petition is being filed

= 21 «

to prevent the loss of Constitutional

rights at the hands of agents of the

United States Government.

REASONS FOR THE GRANT OF THE WRIT

starting with an assessment of tax

that was conceded to be erroneous by its

admissions in the pre-trial proceedings, in

the tax refund suit, and, going - through

the criminal misconduct of defense counsel

and the Internal Revenue Agent in collusion

with a law secretary in the suit for refund, -

in an obvious effort to win the suit for

defense counsel, and, going on through the

judicial process which failed to correct

the obviously criminally induced results,

petitioners were deprived of their Constitu-

tional rights to pay what was a lawful tax,

to be heard at the tax office, to be free

o 29 «

ail

“

from an unlawful assessment and from a

criminally conducted trial, and even by a

wilful effort at the Court of Appeals level

to white-wash the unlawful activity that

was called to their attention; and then,

when petitioners sought in a direct action

to invoke the aid of the State courts, the

Suit was removed and, after removal, was

not called See trial, and two years passed,

when a motion to dismiss was made instead

of trying the case, and the case was

dismissed by allegations of fact by the

District Court, that did not exist, and the

application of law that did not apply; and

yet, such unlawful conduct was upheld by

the Court of Appeals. We then have here a

return to the status of law prevailing in

pre-Magna Carta days. The Constitution

guarantees the individual rights against

arbitrary government actions. Due process

—— :

of law, equal protection of the laws, trial

by jury, to name a few. The record will

Support the right cf petitioners to have

their day in court, putting before a jury

the miserable activities of a few agents

who, for their own interests of making a

record, would defeat the good intentions of

their government to conduct its business

according to law. Let us examine the

errors of the courts below in this case.

POINT I

THE SUBSTANTIVE LAW OF THE

STATE WHERE A SUIT IS

BROUGHT MUST BE APPLIED IN

A_REMOVED SUIT

In a removed case the rule seems to

be that the substantive law of the state

court from which the case has been removed

must be applied.

- 24 <

Cowley v. Northern Pac. R.R. Co.,

159 U.S. 569, 582.

De Lima v. Bidwell, 182 U.S. 1.’

American Well Works v. Layne, 241

U.S. 257.

Erie v. Tompkins, 304 U.S. 64.

Guaranty Trust Co. v. York, 326

U.S. 99.

Hanna v. Plumer, 380 U.S. 460

General Inv. Co. v. Lake Shore Ry.,

260 U.S. 261, 288.

The first cause of action of this

complaint is predicated upon the grant of a

forfeiture of treble damages by Section 487

Judiciary Law of New York. That Statute

and the allegations of the complaint are

sufficiently set forth to indicate to

defendants the nature of plaintiffs’ claim.

Neither the District Court, nor the Court

of Appeals considered the cause of action

- 25 -

pleaded. This was error in itself.

See also Ragan v. Merchants Transfer &

Warehouse Co., 337 U.S. 530, 69 §.Ct. 1233,

93 L.ed. 1520; Woods v. Interstate Realty

Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.ed.

1524; Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.ed.

1528; Byrd v. Blue Ridge Rural Electric

Cooperative, Inc., 356 U.S. 525, 78 S.Ct.

893, 2 L.ed.(2) 953; Klaxon Co. v. Stentor

Elec. Mfg. Co., 313 U.S. 487, 496-497, 61

S.Ct. 1020, 1021, 85 L.ed. 1477, and cf.

Allstate Ins. Co. v. Charneski, 286 F. (2)

238.

While these cases talk of the extent

that state law shall be applied in the

federal forum the right to bring a cause of

action for resolution, or in what court it

will be presented to, belongs to the

plaintiff, see Koratron Company v. Deering

- 26 -

“ c oot ge ie RP OS SRR Se

4 —

Millikin Inc., 418 F.(2) 1314, 1317, and

cases cited; that in the absenc o2%f

Congressional pre-emption, Federal employees

do not have immunity from the operation of

state statutes, see 72 Am. Jur., 2nd,

Statutes, Secticn 19; and that defense

counsel could not claim immunity from the

operative effects of said Section 487 of

the Judiciary Law, see Penn Dairies, Inc. v.

Milk Control Comm., 318 U.S. 261; Graves Vv.

New York, ex rel O'Keefe, 306 U.S. 466 and

Railway Mail Ass'n v. Corsi, 322 U.S. 88 in

which cases though not specifically

treating with Section 487, this Court said,

about obedience to a state statute that,

in the absence of prohibition by the

Constitution, or an Act of Congress, laws

passed by the state in the exercise of its

police power reach Federal employees.

e 29 «

While the criminal law of the United

States forbids obstruction of justice there

are no statutes or other laws in the Federal

arsenal comparable to said Section 487 of

the Judiciary Law of New York. Hence,

these defendants are subject to Section 487,

being lawyers and suborning perjury and

deceiving the Court to the hurt and detriment ;

of a citizen of the State of New York.

The courts below erred in failing to enforce f

that law upon which plaintiffs relied as the

source of its remedies.

The District Court's references to

the complaint was to say that it is a

collateral attack upon the judgment in the

tax refund suit. Even so, the new complaint

states a new cause of action based upon a

statutory remedy; see Griffith v. Bank of

New York, 147(2) 899, 901. The allegations

of the second claim should be considered on

- 28 -

on the motion to dismiss. Painting with

a heavy brush and calling it an attack upon

a judgment neither makes it so, nor doés it

give the Court an excuse for applying res

judicata or collateral estoppel.

The second claim is akin to the

equity suit to set aside a judgment for

fraud. Damages are alleged and it is

respectfully submitted that it states

sufficient facts to warrant a cecdvery

unless the defense of res judicata or

collateral estoppel is valid, which they

are not.

POINT II

WASN'T THE DEFENSE OF RES

JUDICATA AND COLLATERAL

ESTOPPEL MISAPPLIED

Res judicata and collateral estoppel

cannot apply to the first cause of action as

- 29 ~-

alereatintt ae p-tnar “nad ell

1 ae ont Ow

— ear

that claim is nothing like the refund suit,

nor are the issues or the parties the same.

Nor does res judicata or collateral

estoppel apply to the second claim. Again,

because the issues are different.

In the first place res judicata

applies only when the causes of action are

similar. This.is so by definition of res

judicata, 46 Am. Jur., 2nd, Judgments,

Section 394 says: "That an existing final

_ judgment rendered upon the merits, without

fraud or collusion, by a court of competent

jurisdiction, is conclusive of causes of

action and of facts or issues mainly

litigated." Section 404 of the same An.

Jur. says: the bar then applies "to a

subsequent action involving the same claim,

demand and cause of action." See also

Fowler v. National Screen Service, 349 U.S.

322, where this Court specifically says

- 30 -

that. res judicata does not apply to a

different set of facts in the first suit.

See also United Shoes Machinery Corp. v.

U.S., 258 U.S. 451, 458, 459; So. Pac. Ry. i

v. United States, 168 U.S. 1, 48; and |

United States v. Moser, 266 U.S. 236, 241. |

The rule is the same under New York law, |

see New York State Labor Board v. Holland,

294 N.Y. 480; Israel v. Wood Dolson Corp.,

1 N.Y. (2) 116, 118; Cook v. Conners, 215

N.Y. 175; Smith v. Kirkpatrick, 305 N.Y. 66;

and Plant City Steel Corp. v. National

Machine Exchange, 23 N.Y¥.(2) 472, 475.

See, also, Moore's Federal Practice,

ol. 1B, Par. 0.405. The District Court

relied upon Commr. of Int. Rev. v. Sunnen,

333 U.S. 591; Harris v. Washington, 404 U.S.

55, 56, 92 S.Ct. 183, 184; and Roth v.

McAllister Brothers, Inc. 315 F.(2) 43, note

proper citation is 316 F.(2) 143.

« 31 «

These cases have nothing in common with

the facts of this case, and hence are

inapposite. Some language in Sunnen and in

Roth is in favor of petitioner's claims.

In fact, the courts below failed to

take the issues in both cases apart and lay

them side by side to show how they compare

and are subject either to res judicata or

collateral estoppel. Hence, as a matter of

fact, as there was no effort to prove a

similarity of issues, claims or parties,

error was made. Certainly, the United

States Attorneys, or the Internal Revenue

agent is not the same as the United States

of America, and the reach in the fraud

case is the pocket book of the individuals,

for their personal acts, and not the

Treasury of the Government, nor anything

that was lawfully done on behalf of the

Government.

e 32 «

Also, the District Court relied on

United States v. Throckmorton, 98 U.S. 61,

which specifically exempts claims of fraud

on the court from being barred by these

doctrines. We have seen that Section 394

of Am. Jur., Supra., makes the same exception

where the first judgment is procured by

fraud. The talk of a difference between

Intrinsic-Extrinsic fraud by the District

Court was completely at variance with

Rule 60(b) (3), F.R.C.P., which eliminates the

Old practice of making that distinction.

In addition to the provision of that part

of Rule 60, set forth above, the same rule

in the last sentence to subdivision (b)

states: "This rule does not limit the power

of the court to entertain an independent

action * * * to set aside a judgment

for fraud upon the court." The Court below

denied the efficacy of said language when it

= 33 =

said that petitioner had other relief

available to it by other Federal rules of

practice, and then, surprisingly, the.

Court said, generally, that petiti»ners did

avail themselves of relief under the other

rules, when there was no proof of any such

action in the record before the Court.

Prof. Moore, in Vol. l-b, para. 0.407,

confirms that an independent action may be

brought to set aside a judgment for fraud,

by a fraud upon a court; see p. 932.

If an independent action is preserved to a

litigant by the Federal Rules, to set aside

a judgment for fraud, how can it be said

that the judgment to be attacked is res

judicata or collateral estoppel to such an

attack? Judge Clark, in Griffith v. Bank

of New York, Supra, had no difficulty in

ignoring res judicata or collateral estoppel

in this case. Even if Federal common law

- 34 -

apylied to this complaint they would prove

that the courts below erred in dismissing

this suit before trial.

But, as the sufficiency of this

complaint must be considered by the law of

the State of New York we find that New

York law affords the same relief. Rule

5015(3), C.P.L.R. is set forth above.

It permits an attack when the misconduct

of a party deceives a court. Such a

deception cannot grant a remedy if the

judgment can be barred by res judicata

or collateral estoppel. In New York the

difference between extrinsic-instrinsic

fraud has been done away with; see

WEINSTEIN-KORN-MILLER, New York Practice,

para. 5015.08, 5015.09 and 5015.10, and

Levine v. O'Malley, 33 A.D.(2) 874, 307

N.Y.S.(2) 918.

- 35 -

New York rule of res judicata or

collateral estoppelis not given effect to a

judgment or order obtained by fraud; ‘see

Everett v. Everett, 180 N.Y. 452, Perkins v.

Guaranty Trust Co., 274 N.Y. 250, 257; and

in addition, it allowed a party to recover

for a fraud upon the Court, see Verplanck v.

Van Buren, 76 N.Y. 247, when perjury was

committed. Also, New York law says that

the rule of res judicata and collateral

estoppel have exceptions. One is where

the issues in the second suit have not really

been tried. See State Insurance Fund v.

Low, 3. N.Y¥.(2) 590, 170 N.Y¥.S.(2) 795,

and cases there cited. Judge Desmond gives

a clear insight into the type of examination

of the issues in both suits to show clearly

how much justice preponderates in favor of

a trial for the new complaint.

= 36 <

The District Court refers to the

fact that the trial judge in the tax refund

suit rules against plaintiffs on the burden

of proof about plaintiffs' claim that

defense counsel improperly induced the trial

judge to place the burden of proof on

plaintiffs. But, the District Court

misunderstood plaintiffs' point, plaintiffs'

claim was that, where an assessment is

proven to be incorrect the presumption of

its correction falls. The United States

cannot rely on the presumption of correctness

of the assessment. In that case, if

defense counsel advances any claims for

additional taxes resting on matters not

contained in the assessment, then the

taxpayer proceeds to prove a regularly

prepared return and the burden of proving

an item to be unallowable is upon the

Government; see C.1I.R. v. Pacific Mills,

o 37 @

207 F.(2) 177; Lease v. United States, 346

F.(2) 696; and Automobile Club of Mich. v.

Comm'r., 230 F.(2) 585. Defense counsel

a

caused this rule to be changed by listing

in their trial brief many items of expense

not disallowed by the Commissioner which

at, es ee i a

the judge, without discussion, ordered

plaintiffs to disprove the new disallow-

ances as though they had been a part of the

assessment by the Commissioner. No res

judicata or collateral estoppel could arise

from this slight of hand by defense counsel.

How would the District Judge like it if he

were trial counsel and be held in contempt

because he dared object to proof on items

not contained in the pleadings? How would

he like it to have a later judge say that

it was all right, because the trial judge had

allowed it?

= 38 -

Furthermore, the Court of Appeals,

Fifth Circuit, in Kinnear Weed Corp. v.

Humble Oil, 403 F.(2) 437, said about: res

judicata or collateral estoppel, when the

propriety of the first judgment was under

attack, at pp. 439-440, by Brown J.:

"But, as we several times made

clear, this is a matter which

transcendes the interests of the

parties. The purity of the judicial

process and its institutions is the

thing at stake. Whatever might be

the usual consequences of res

judicata, collateral estoppel or

doctrines akin to them, we reject

them here. They are not a bar or

defense here or below."

The foregoing quotation was read to the

Court of Appeals in the Second Circuit,

but evidently they would not adopt that

rule. Here, then, is a clear case of

differences in two circuits that might call

upon the Court to hear the appeal in this

case, to settle the issue. The issue is

important, not only for justice's sake in

- 39 -

avoiding the deprivation of the right of

trial on issues raised about the quality

of justice in the prior case, but the

purity of governance is at stake. Even

the credibility of their officers is at

stake. Correction should be directed by

this Court for this is what life in America

is all about. It is a basic raison d'etre

of this Honorable Court.

POINT III

PERJURY ENGAGED IN Bi GOVERN-

MENT AGENTS IS NOT CONDONED

BY EITHER THE FEDERAL COURTS

OR BY THE STATE COURTS.

In New York, its Court of Appeals has

established the rule that where a public

attorney has suborned perjury or condones

it to win a case, that such is a State action

and a deprivation of due process, and hence,

- 40 -

remediable; see Goldstein v. Lyons,

290 N.Y. 19; Morhaus v. The Supreme Court

of the State of New York, 293 N.Y. 131;

Peo. v. Savvides, 1 N.Y.(2) 554; Peo. v.

Schwartzman, 24 N.Y¥.(2) 241; cf. Mooney v.

Holohan, 294 U.S. 103, 112-113.

>

In the Federal courts, in Bell v.

Hood, 327 U.S. 678, and in Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388,

this Court has said, that the violation of

Constitutional rights is actionable, despite

the absence of an enabling act giving one

aggrieved the right to sue for such

deprivation.

Also, in the Federal courts, they

have exercised their powers to set aside

judgments obtained by fraud upon the courts;

see Hazel Atlas Co. v. Hartford Co.,

322 U.S. 238, 244-246 and cases noted at

p. 245. In commenting upon the court's

- 4] -

power to devitalize a judgment obtained by

misconduct (perjury), this Court said,

at p. 246:

“Furthermore, tampering with

the administration of justice in the

manner indisputably shown here

involves far more than an injury to

a single litigant. It is a wrong

against the institutions set up to

protect and safeguard the public,

institutions in which fraud cannot

complacently be tolerated consis-

tently with the good order of

society.”

Also, this Court, in Universal Oil

Co. v. Root Rfg. Co., 328 U.S. 575, at

p. 580 re-affirmed the power of the Federal

Court to unearth fraud in the procurement

of a judgment by fraud upon the Court.

Prof. Moore treats the same subject

of fraud upon the court at Volume 7, at

pp. 505, et seq., starting with the heading

of "3. Fraud Upon the Court." It is

significant that this Court, in both Hazel

Atlas, and in Universal Oil Co., Supra.,

- 42 <-

a

|

|

|

|

|

did not stop to apply res judicata or

collateral estoppel to bar the inquiry

into the means by which the first decisions

were entered. This is proof that when

fraudulent conduct has induced a judgment

of a court, that the corrective measures

of the Court are the Supreme Law of the

Situation and it applies. The courts

below did not apply such law. They

erred, because they failed to follow this

Court's decisions in the many cases cited

hereinabove. In affirming on the opinion

of the District Court, the Honorable Court

of Appeals was guilty of so far departing

from the accepted and usual course of

judicial proceedings, or of so far

sanctioning such a departure by the lower

Court, as to call for the exercise of this

Court's power of supervision, just as

Rule 19 of the Rules of this Court states.

- 43 -

hel 6 ee

i a ei eee ee ll

POINT IV

THE DENIAL OF THE PLAINTIFFS'

MOTION TO STRIKE THE APPEAR-

ANCE OF THE UNITED STATES

ATTORNEY FOR THESE DEFENDANTS

WAS ERRONEOUS.

There is nothing about this case

that would adversely affect the good of the

United States of America. Its good would be

promoted by an investigation into tke

fraudulent conduct of the defendants.

Filing an appearance and offering the

good offices of the United States Attorney

to defend criminal conduct is plainly

incongrous and outside the scope of the

powers and authorities of that office.

It also is unfair to pit unlimited resources

against very limited resources. The cases

say that, where the pecuniary interests of

the United States will not be served by

the appearance of the United States, that

appearance will be stricken; see United °

» 44 <-

ee

er «* pe =

—— " _ -« .

vlan

+ s* o

4

States v. San Jacinto, 125 U.S. 273 and

Calhoun County, Florida v. Roberts, 137 F. (2)

130.

How can the courts below justify

their refusal to strike the appearance of the

United States Attorney in this case?

CONCLUSION

It is respectfully submitted that,

not only have important Constitutional rights

been taken from plaintiffs by the collective

action of the Federal Government agents

mentioned above, but also the decisions in

this case are erroneous, and conflict with

decisions on similar principles made by the

Court of Appeals of other Circuits, and

with the decisions of this Court on the many

points indicated above, or that the decisions

under review so far depart from the usual and

- 45 -

— ~~ -_ —_-- . ~ —e —~_ = oe a eee) Ss Bee, | ~—* - >, Bs. v 2 . a a ft ot i ow ae an

..7 -— eeteee $ ee ee we >.> YF “= = —.* 4 or.

- * > 4 P m - . ~~ - vig ~ mig fe Py

= ’ -

- . - <->

accepted course of judicial proceedings

or the decision of the Court of Appeals

below, so far sanctions such a departure by

the District Court as to call for an

exercise of this Court's power of super-

vision in a matter affecting every taxpayer

and the integrity of the United States of

America and its courts in dealing with the

individual rights, vis a vis, his Government.

Furthermore, this matter will provide an

opportunity to discipline Government agents,

instead of condoning their criminal

misconduct, and then hiding behind the facade

of doing what they did for the Government.

The public will be greatly relieved to

know that this Court will say that they

cannot escape from the consequences of their

criminal misconduct, and that this Court

will vindicate its decision in Berger v.

United States, 295 U.S. 78. Last, but not

- 46 -

——— -—

—

least, the credibility of the Internal

Revenue and of the enforcing officers in

the Department of Justice will be enhanced,

with the knowledge that this Court will

not brook or overlook dishonest practices.

Honesty as a policy of job performance

might be encouraged. This Honorable Court

is respectfully requested to grant its

writ of certiorari to the Court of Appeals,

Second Circuit.

Respectfully submitted,

ANTHONY B. CATALDO

Attorney for Appellants,

and Pro Se

- 47 -

af > <P i a a ene .. a. eS hes ee Nk SS ae Ge ere eet ae = X an x o4 SE,

¢ _ . % om . oe gel | - F. mT, “¥ ; 3 4 = =. e =r . kt Sale a tes z \ mar ~

ss . - . = AG a ‘ Tae . ec eo ‘Tt '

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States

Court of Appeals for the Second Circuit,

held at the United States Courthouse in

the City of New York, on the 2d day of

February, ,

one thousand nine hundred and seventy-eight.

Present:

HON. PAUL R. HAYS

HON. MURRAY I. GURFEIN,

Circuit Judges

HON. FREDERICK vanPelt BRYAN, District Judge*

ANTHONY B. CATALDO and ADA W. CATALDO, =:

Appellants,

-against- :

DAVID P. LAND, T. GORMAN REILLY

and ROBERT LEVINE,

Appellees.

- 48 -

77-6109

Appeal from the United States District

Court for the Eastern District of New York.

This cause came on to be heard on the

transcript of record from the United States

District Court for the Eastern District of

New York, and was argued by appellants pro se

and counsel for appellees.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment

of said District Court be and it hereby is

AFFIRMED generally on the opinion of Chief-Judge

Mishler below.

PAUL R. HAYS

MURRAY I. GURFEIN

Circuit Judge

FREDERICK vanPelt BRYAN,

District Judge

*United States District Judge for Southern District

of New York, sitting by designation.

- 49 -

APPENDIX B

DECISION GRANTING DISMISSAL OF ACTION

AND DENYING CROSS~-MOTION

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

=-lUcOeelmlmlCUDD a ee ee ee ee |

ANTHONY B. CATALDO and 74 C 1774

ADA CATAL

sala, Memorandum of

Plaintiffs, Decision and

Order

-against-

DAVID P. LAND, T. GORMAN

REILLY and ROBERT E. LEVINE,

- June 22, 1977

Defendants.

APPEARANCES :

For Plaintiffs

ANTHONY B. CATALDO, ESQ., Pro Se

1l1l Broadway

New York, New York 10006

For Defendants

HONORABLE DAVID G. TRAGER

UNITED STATES ATTORNEY

Eastern District of New York

225 Cadman Plaza East

Brooklyn, New York 11201

David W. McMorrow, Esq., Of Counsel

Assistant United States Attorney

- 50 -

MISHLER, CH. J.

An Internal Revenue Service ("IRS")

audit of the Cataldos' 1963 joint tax return

resulted in a $2,210.87 deficiency assessment

which, along with $507.62 in interest,

plaintiffs subsequently paid under protest.

After a claim for the full amount was rejected

by the IRS, plaintiffs commenced a refund

action in the United States District Court

for the Southern District of New York.

Defendants David P. Land and T. Gorman Reilly,

both Assistant United States Attorneys, were

jointly responsible for the government's

defense. The case proceeded to trial in

May, 1973, and lasted for three days. In an

opinion filed on June 29, 1973, the court

granted judgment in favor of the government

and dismissed plaintiffs' claim with prejudice.

That judgment was affirmed by the Court of

Appeals in a per curiam decision on June 25,

1974. Cataldo v. United States, 501 F. 2d

396 (2d Cir. 1974).

= 8] «=

In November, 1974, plaintiffs

eummanceé the instant action; , the complaint

charges defendants Land, Reilly and Robert E.

Levine, the IRS agent in charge of the

Cataldo tax audit, with conspiring to defraud

the court during the trial of the tax refund

suit. In brief, plaintiffs allege that

Levine wrongfully disregarded a subpoena

duces tecum and testified perjuriously in the

refund trial while defendants Land and Reilly

suborned such perjury, advised Levine to

ignore the subpoena, and consistently mis-

represented the applicalbe law and operative

facts to the court. Plaintiffs claim that

defendants’ alleged wrongdoing constituted

obstruction of justice and caused dismissal

of their suit.

For this, the Cataldos seek

$10,000 in compensatory, and $90,000 in

punitive damages. Defendants move, pursuant

fi

The action, originally filed in State Supreme

Court, Queens County, was removed to this

court on December 16, 1974, pursuant to 28

U.S.C. 1442 (a) (1) and (3).

- 52 - :

ee ae

oe

pursuant to Rule 12(c) F.R.Civ.P., for judgment

on the pleadings or, in the alternative, for

an order pursuant to Rule 56(b) F.R.Civ.P.

granting summary judgment. Plaintiffs, in

turn, cross move for summary judgment.

Allegations of Misrepresentation

Although the IRS initially allowed

a $2,230.23 deduction constituting petty cash

items of less than $25, the government decided

to later contest the amount at*trial. Defendants

land and Reilly argued that the government was

by no means estopped from making the challenge,

and that the burden of proof on this, as with

every claimed deduction in a refund action,

remained with the taxpayer. Plaintiffs, while

disputing the defendants’ right to challenge

previously allowed expenditures, argued that

the government bore the burden of proof with

respect to these additionally contested items.

The court sustained the government's position.

Cataldo now argues that the defendants delib-

erately misrepresented the posture of the law

causing the burden to be cast on him, and,

- §3 -

in turn, his failure. |

Allegations of Wrongfully Disregarding

A_Subpoena

Prior to the commencement of the

refund trial, plaintiffs served upon Agent

Levine a subpoena demanding the production

of all IRS memoranda and records pertaining

to the Cataldo audit. Defendants refused to

produce the requested items arguing irrelevancy

and confidentiality. The court, upholding

defendant's position, did not order that the

records be furnished. Plaintiffs continue,

however, to insist that defendants wrongfully

failed to respond to the subpoena duces tecum.

Decision

There exist several avenues of

relief from judgments procured through

"fraudulent" conduct. Not only does the

right of direct appeal lie, but the Federal

Rules of Civil Procedures allow for post

trial motions which call for additional findings,

- 54 -

——— | = — —— sittin ;

* Fae.

see Rule 52(b), for relief from a judoment

retuitins from fraud or other misconduct,

see Rule 60(b), or for a new trial, see

Rule 59. Capitalizing on several-of these

means, plaintiffs raised precisely the same

- i a

allegations of wrongdoing, not only in the

Original refund trial, but in a post trial

motion to amend the complaint and reopen

the proceedings, and again on appeal.

The very allegations were specifically

rejected by both the trial and appeals courts.

Nevertheless, plaintiffs once again assert

the same claims. Although their action is

styled as one for damages against individual

government officials, it is in reality a

collateral attack on the judgment rendered

in the prior tax refund suit. For the gravamen

of their complaint is that the district court

would not have dismissed plaintiffs' action

but for the alleged wrongdoing of the

defendants. Both the rule against collateral

attack of valid judgment and the doctrine of

- 55 -

:

:

re

£

|

|

ee oe

collateral estoppel bar maintenance of this

suit.

Fraud that is intrinsic to the

prior judicial proceeding will support neither

an independent action collaterally attacking

the previous judgment, United States v.

Throckmorton, 98 U.S. 61, 68 (1878);

Serzysko v. Chase Manhattan Bank, 461 F.2d

699, 702 (2d Cir. 1972), nor an action for

damages against the alleged wrongdoers.

Griffith v. Bank of New York, 147 F.2d 899,

903 (2d Cir. 1945). There is little question

that the fraud alleged by plaintiffs was

intrinsic to the tax refund proceeding. It

is clear that the information which forms

the basis of plaintiffs' claims was in their

possession at the time of the Southern District

trial. And not only were they presented with

the opportunity to raise those allegations,

which itself is sufficient to bar a collateral

attack, Serzysko v. Chase Manhattan Bank,supra

» 86 -

pages

- TC erway yn eae

— ==

at 702 n.2, ‘they in fact exercised the

Opportunity. It is evident, therefore,

that this action cannot be maintained given

the absence of other evidence of fraud.

Moreoever, the doctrine of

collateral estoppel bars relitigation of

plaintiffs’ claims. Traditionally defined,

parties to a second suit involving a different

cause of action are estopped from contesting

those matters which were in issue and

necessarily determined in a ndevbans suit

between them or their privies. Commissioner

of Internal Revenue v. Sunnen, 333 U.S. 591,

597-98, 68 S.Ct. 715, 719 (1948); Harris v.

Washington, 404 U.S. 55, 56, 92 S.Ct. 183,

184 (1971); Roth v. McAllister Brothers, Inc.,

315 F.2d 143, 145 (2d Cir. 1963). For the

defense to attach, three elements need be

present: (1) the issues sought to be raised

in the second action must have been judicially

determined in the prior action; (2) there

must have been a final judgment on the merits

= 89 a

in the prior suit; and (3) the party against

whom the defense is asserted must have been

a party to, or in privity with the party to

the previous action. Kraeger v. General

cert. denied, 419 U.S. 861, 95 S.Ct. 111 (1974);

Citizens for Community Action at Local Level,

Inc. v. Ghezzi,386 F. Supp. 1, 5 (W.D.N.Y. 1974),

vacated on other grounds; Town of Lockport,

N.Y. v. Citizens for Community Action at Local

Level, Inc., 423 U.S. 808, 96 S.Ct. 11 (1945).

There can be no question that all three elements

are present here.

Throughout the course of the trial

and again in a post trial motion, plaintiffs

repeatedly asser.ed that defendants Land and

Reilly had misrepresented the law, “wrongfully”

reporting to the court that the burden of

proof lay with plaintiffs. In each instance

plaintiffs' claims were rejected. So too,

plaintiffs charged both attrial and in

subsequent motions that defendant Levine had

committed perjury at Land and Reilly's

urgings. The court heard Levine's testimony

- 58 -

and Cataldo's cross-examination and made

appropriate findings. Failing to prevail

on any of their claims in the trial court,

plaintiffs raised the same allegations on

al. There again plaintiffs' contentions

: eer the court finding that the

| wfe afforded a fair trial. The

. identity of parties and issues presented wr

}

the instant action precludes relitigation.

Accordingly, defendants’ motion

to dismiss is granted and plaintiffs' cross-

motion for summary judgment is denied. The

Clerk of the Court is directed to enter judgment

in favor of defendants and against plaintiffs

dismissing the complaint with prejudice, and

{ it is

SO ORDERED.

U.S.D.J.

Finding sufficient grounds to support the

dismissal of plaintiffs’ suit in the doctrine

of collateral estoppel and the rule against

collateral attack of a valid judgment, we

need not reach defendants’ additional claims

= §9 -

tah al

that the action is barred by the doctrine

of quasi-judicial immunity and qualified

| official immunity or that plaintiffs’

| allegations do not give rise to cause

of action for damages.

- 60 -

ee ee ees oe ——

— o »

APPENDIX C

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

Anthony B. Cataldo, Esq.

1ll Broadway

New York, N.Y. 10006

RE: CATALDO v. UNITED STATES, 75-1248

Dear Sir:

The Court today entered the following

Order in the above-entitled case:

The motion for heove to file a

petition for a writ of certiorari is

denied.

Very truly yours,

Michael Rodak, Jr., Clerk

By

Helen Taylor (Mrs.)

Assistant Clerk

- 61 -

p= ae

a a ee eA se

SUPREME COURT OF THE UNITED STATES

| OFFICE OF THE CLERK

WASHINGTON, D. Cc. 20543

MAY +) ine

es (276

Anthony B. Cataldo, Esq.

111 Broadway

New York, N.Y. 10006

RE: CATALDO v. UNITED STATES, 75-1248

Dear Sir:

The Court today entered the following order

in the above-entitled case:

The motion for leave to file a

petition for a writ of certiorari is

denied.

Very truly yours,

Michael Rodak, Jr., Clerk

By

Helen Taylor (Mrs.)

Assistant Clerk

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