Appendix — In Re Huff Et Ux

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Supreme Court, U.S.

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031285 JAN 23 2004

OPFTGEEOF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 2003

No.

“In re

REGGIE D. HUFF AND LISA G. HUFF

Petitioners”

v.

SUSAN P. GRABER, RONALD M. GOULD

AND REGGERO J. ALDISERT,

Circuit Court Judges for the 9th Circuit

Respondents

THE ROBERT JACKSON FAMILY TRUST; L. B. LAND, an

Oregon corp.; JOH SERVICES INC., an Oregon corp.; JOHN D.

HALLSWORTH, JR.;ROBERT K. JACKSON; LUANN

JACKSON; RODERICK A. BOUTIN,

Co- Respondents

APPENDIX

PETITION FOR WRIT OF MANDAMUS

AGAINST 9" CIRCUIT PANEL

(Oral Arguments Requested)

(Expedited Procedure Requested)

Reggie D. Huff & Lisa G. Huff

PO Box 4351

Warren, OH 44482

Ph: (330)372-6615; Fax: (330)372-63 16

Counsel for Petitioners

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2003

No.

“In re

REGGIE D. HUFF AND LISA G. HUFF

Petitioners”

v.

SUSAN P. GRABER, RONALD M. GOULD

AND REGGERO J. ALDISERT,

Circuit Court Judges for the 9th Circuit

Respondents

THE ROBERT JACKSON FAMILY TRUST; L. B. LAND, an

Oregon corp.; JOH SERVICES INC., an Oregon corp.; JOHN D.

HALLSWORTH, JR.;ROBERT K. JACKSON; LUANN

JACKSON; RODERICK A. BOUTIN,

Co- Respondents

PETITION FOR WRIT OF MANDAMUS

AGAINST 9" CIRCUIT PANEL

(Oral Arguments Requested)

(Expedited Procedure Requested)

Reggie D. Huff & Lisa G. Huff

PO Box 4351

Warren, OH 44482

Ph: (330)372-6615; Fax: (330)372-63 16

Counsel for Petitioners

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TABLE OF CONTENTS

OPINION — Judge King, September 6, 2001 | 3

OPINION -— Judge King, January 3, 2002 20

Plaintiffs’ Motion for Reconsideration/Amend Judgment 29

Appellants’ Opening Brief — Front page only 40

Letter of Reassignment to Oral Argument Panel 42

Letter of Thanks and Acknowledgement of Oral Arguments 43

Schedule for September 11] & 12, 2003 Oral Arguments 44

ORDER of Submission Without Oral Argument 45

ORDER Denying Motion for Reconsideration of Order for Case

Submission Without Oral Arguments 46

MEMORANDUM - 9" Circuit Panel — Affirming 47

PETITION: Investigate Discrimination & Suspension Pending

Disposition & For Rehearing — En Banc Requested 51

AFFIDAVIT in Support of Petition 68

ORDER to File Petition 70

ORDER Denying Petition 7]

AMENDED MEMORANDUM - 9" Circuit — Affirming 73

ORDER Denying Appellants’ Motion to Recall Mandate, to

Clarify Amended Memorandum, to Reconsider Order to

Reconsider Recusal of Panel, to Return Court Fee 78

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ACRO-TECH, INC; an

Oregon Corp.;

REGGIE D. HUFF and

LISA A. HUFF,

Plaintiffs,

v.

THE ROBERT JACKSON

FAMILY TRUST; L. B.

LAND, INC., an Oregon

Corp; JOH SERVICES

INC., an Oregon Corp.;

JOHN D. HALLSWORTH,

JR.; ROBERT K.

JACKSON; LUANN

JACKSON; and

RODERICK A. BOUTIN,

Defendants.

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Civil No. 01-447 KI

OPINION

FILED

2001 SEP -6 -3:05

CLERK U.S. DISTRICT

COURT

DISTRICT OF OREGON

PORTLAND, OREGON

BY JL

David B. Adler

520 East Denney Way

Seattle, WA 98122

Herbert George Grey

14355 S.W. Allen Bivd.

Suite 100

Beaverton, OR 97005-4404

Attorneys for Plaintiffs

- and -

Roderick A. Boutin

Bowerman & Boutin, LLP

P.O. Box 100

Oregon City, Oregon 97045

David K. Miller

Miller & Wagner, LLP

2210 N. W. Flanders

Portland, Oregon 97210

William H. Stockton

Brisbee & Stockton

139 N. E. Lincoln Street

P.O. Box 567

Hillsboro, Oregon 97124

Attorneys for Defendants

KING, Judge:

Plaintiffs Reggie and Lisa Huff ' allege that defendants

engaged in various schemes to steal the Huffs’ business, plaintiff

Acro-Tech, Inc., away from them. Previously before the court

were: (1) defendants Hallsworth and JDH Services, Inc.’s motion

to dismiss or to stay or to enlarge time (326) and; (2) defendants

PEEL HER SLIPPING SLMS LER LEP FEO NIELS IED PEND LENGE OF 0 ‘

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Robert and Luann Jackson’, the Robe.t K. Jackson Family Trust

(“Jackson Trust”) and LB Land, Inc.’s motion to dismiss or to stay

or to enlarge time (#24) . After oral argument, I agreed to defer

ruling on these motions because of several procedural difficulties

with removal and remand of a related case and to allow defendants

to move against the merits of the complaint. Currently before the

court are: (1) defendant Boutin’s motion to dismiss (#46);

defendants Hallsworth and JDH Services, Inc.’s motions to dismiss

(#48); defendants Robert Jackson, Luann Jackson, The Robert K.

Jackson Family Trust and LB Land, Inc.’s motion to dismiss (#50);

and plaintiff's motion to strike (#54).

ALLEGED FACTS

Plaintiffs Reggie and Lisa Huff are the founders and

majority shareholders of plaintiff Acro-Tech, Inc. Huff patented

four inventions related to internal combustion engine performance

and environmental compatibility. He assigned some of the patents

to Acro-Tech. Plaintiffs allege that defendants, actin through an

enterprise, tried to acquire Acro-Tech through unlawful means and

for no compensation in order to gain control of its patents.

Defendants’ methods included: (1) ruses to gain access to Acro-

Tech’s confidential business information; (2) threatening Acro-

Tech directors to resign and give up their shares in the corporation;

(3) forcing Acro-Tech to defend frivolous lawsuits concerning its

leased office space; and (4) threatening litigation if plaintiffs did

not trade stock as defendants wished.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) will only be

granted if it “appears beyond doubt that the plaintiff can prove no

set of facts in support of his complaint which would entitle him to

relief.” Gilligan v. Jamco Development Corp., 108 F.3d 246, 248

(9" Cir. 1997). Normally, the review is limited to the complaint,

‘I will refer to Reggie Huff as “Huff” and his wife as “Lisa Huff.”

? I will refer to Robert Jackson as “Jackson” and his wife as

“Luann Jackson.”

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and all allegations of material fact are taken as true and viewed in

the light most favorable to the non-moving party. Id.

A court may deny leave to amend when any proposed

amendment would be futile. Reddy v. Litton Industries, Inc., 912

F.2d 291, 296 (9" Cir. 1990), cert. denied, 502 U.S.C. § 1962

prohibits the following:

(a) It shall be unlawful for any person who has received any

income derived, directly or indirectly, from a pattern of

racketeering activity or through collection of an unlawful debt

in which such person has participated as a principal within the

meaning of section 2, title 18, United States Code, to use or

invest, directly or indirectly, any part of such income, or the

proceeds of such income, in acquisition of any interest in, or

the establishment or operation of, any enterprise which is

engaged in, or the activities of which affect, interstate or

foreign commerce. A purchase of securities on the open

market for purposes of investment, and without the intention of

controlling or participating in the control of the issuer, or of

assisting another to do so, shall not be unlawful under this

subsection if the securities of the issuer held by the purchaser,

the members of his immediate family, and is or their

accomplices in any pattern or racketeering activity or the

collection of an unlawful debt after such purchase do not

amount in the aggregate to one percent of the outstanding

securities of any one class, and do not confer, either in law or

in fact, the power to elect one or more directors of the issuer.

(b) It shall be unlawful for any person through a pattern of

racketeering activity or through collection of an unlawful debt

to acquire or maintain, directly or indirectly, any interest in or

control of any enterprise which is engaged in, or the activities

of which affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed by or associated

with any enterprise engaged in, or the activities of which

affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

4 Pe oe

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enterprise’s affairs through a pattern of racketeering activity or

collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of

the provisions of subsection (a), (b), or (c) of this section.

18 U.S.C. § 1962.

Plaintiffs allege claims under each section of the statute

against various defendants.

A. Section 1962(c) (Claim One)

A violation under § 1962(c) requires proof of: (1) conduct;

(2) of an enterprise; (3) through a pattern; (4) of racketeering

activity. Howard v. America Online, Inc., 208 F.3d 741, 746 (9"

Cir.), cert. denied, 531 U.S. 828 (2000).

. Enterprise

Defendants contend that plaintiffs do not adequately allege

a separate enterprise and do not allege how the enterprise engaged

in interstate commerce.

An enterprise under RICO includes groups with a formal

legal structure and groups whose members merely associate in fact.

Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1083 (9"

Cir.), amended on other grounds, 234 F.3d 428 (9" Cir. 2000), cert.

denied, 121 S. Ct. 843 (2001). A group cannot be an enterprise,

however, unless it exists independently from the racketeering

activity in which it engages. It must have some sort of structure for

making decisions and mechanisms for controlling and directing the

affairs of the group on an on-going basis rather than an ad hoc

basis. A conspiracy is not a RICO enterprise. Id.

Plaintiffs allege * the following facts concerning the structure of

the enterprise. The enterprise is an association in fact comprised of

Jackson, Jackson Trust, Hallsworth, LB Land, and JDH Services. It

is operated, managed and/or controlled by all of them. Defendant

corporations, LB Land and JDH Services, adopted or approved the

’ First Amended Complaint at 13 ¢C; AT 149.G; AT 16

49 52-54; AT 20 § 74, 77.

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unlawful activities of Jackson and Hallsworth. The Jackson Trust

is an alter ego of Jackson created to protect assets of Jackson and

to provide tax benefits. Boutin, as attorney for Jackson and

Hallsworth, filed a mandamus action against Acro-Tech

concerning shareholder access to corporate records. Boutin filed

the action as part of an effort to direct and control the enterprise

and its efforts to acquire control over Acro-Tech. Boutin’s actions

in representing defendants were a significant managerial act of

control over the enterprise.

Plaintiffs also allege under the RICO conspiracy claim that

Boutin used his legal skills to direct and control the efforts of the

enterprise to acquire control over Acro-Tech and to evade a

judgment entered in an FED action between the parties. He also

directed and managed the affairs of the enterprise in its appearance

before the courts and aided and abetted Jackson, Luann Jackson,

LB Land, and Hallsworth in their efforts to remove Hall from

control of Acro-Tech.

Plaintiffs contend that the inclusion of two corporations in

the enterprise satisfies the requirement that the enterprise is an

entity separate and apart from the pattern of racketeering activity I

which it engages, relying on Chang v. Chen, 80 F.3d 1293 (9" Cir.

1996). Chang held that the involvement of a corporation which has

an existence separate from its participation in the racketeering

activity can satisfy the enterprise element’s requirement of a

separate structure. The court went on to find that although the

corporation was named as a member of the enterprise, the

complaint did not allege how the corporation was related to or

participated in the alleged enterprise. Consequently the court held

that the complaint did not properly allege an enterprise. Id. At

1300-01. '

Plaintiffs allege that Acro-Tech employed JDH Services to

perform accounting services, giving JDH Services access to Acro-

Tech’s confidential business and financial information. LB Land

was the landowner for the premises Acro-Tech leased, allowing

LB Land to use the lease as a basis for FED litigation. This is

adequate to meet the test under Chang for a separate entity.

aa

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Plaintiffs, however, do not sufficiently allege the structure

of the enterprise or its mechanisms for directing its affairs. It is not

alleged whether decisions are consensual, with all members having

an equal say, or whether there is a hierarchy within the enterprise.

Plaintiffs allege that Boutin, who is not an alleged member of the

enterprise, controls its affairs. I conclude that the enterprise is not

adequately pleaded.

ya Predicate Acts

Plaintiffs allege predicate acts of mail fraud, wire fraud,

extortion, Travel Act violations, and Interstate Transportation of

Fraudulently obtained Money violations. Defendants contend that

the facts alleged do not constitute violations of these criminal

statutes.

Predicate acts must be conduct which is indictable.

Howard v. America Online, Inc., 208 F.3d 741, 748 cg" Cir.), cert.

denied, 531 U.S. 828 (2000); § 1961(1).

i. Mail and Wire Fraud

RICO actions alleging the predicate act of fraud must

plead with particularity the time, place, and manner of each act of

fraud, plus the role of each defendant in each scheme. Lancaster

Community Hospital v. Antelope Valley Hospital District, 940

F.2d 397, 405 (9° Cir. 1991) (mail fraud), cert. denied, 502 U.S.

1094 (1992). The complaint must allege what is false about a

representation and why it is false. In re Glenfed Inc. Securities

Litigation, 42 F.3d 1541 (9" Cir. 1994) (Rule 9(b) requirement

applied to federal securities claims).

To allege a violation of the mail fraud statute, 18 U.S.C. §

1341, a plaintiff must show: — (1) defendants formed a scheme or

artifice to defraud; (2) defendants used the United States mail or

caused a use of the mail in furtherance of the scheme, and (3)

defendants did so with the specific intent to deceive or defraud.

Rothman v. Vedder Park Management, 912 F .2d, 315, 316 cg" Cr.

1990).

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The crime of wire fraud under 18 U.S.C. § 1343 has the

same elements but substitutes used of the wires for use of the mail.

United States v. Garlick, 240 F.3d 789, 792 (9" Cir. 2001).

After reviewing the first amended complaint, all of the

allegations plaintiffs consider to be predicate acts of wire and mail

fraud lack specificity as required under the case law. For example,

in { 38(j) and (k), plaintiffs allege:

By falsely communicating by wire and mail to Plaintiff

Reggie Huff that John Hallsworth would review the

company’s books and papers and thereby inducing plaintiffs to

trust and rely upon these representations to authorize

Hallsworth to access the confidential books and records of

Acro-Tech.

By executing fraudulent documents which were used and

communicated through the U.S. mails in order to further the

scheme to defraud Plaintiffs of their property interest in Acro-

Tech.

This fails to allege the times, the roles of each defendant,

what is false about the representation that Hallsworth would

review the corporate books, which documents were fraudulent, and

why they were fraudulent.

il. Extortion

The statute states:

Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in

commerce, by robbery or extortion or attempts or conspires so

to do, or commits or threatens physical violence to any person

or property in furtherance of a plan or purpose to do anything

in violation of this section shall be fined......

Extortion is defined as the “obtaining of property from

another, with his consent, induced by wrongful use of actual or =

threatened force, violence, or fear, or under color of official right.”

18 U.S.C. § 1951(a), (b)(2).

Plaintiffs allege that in January 1997, Jackson demanded

that the Huffs surrender all but 3% of their Acro-Tech stock at less

1]

than market value or face a ruinous class action lawsuit which the

Huffs and the corporation could not afford to defend. In April

1997, Jackson, Luann Jackson, and John Hallsworth demanded

that plaintiffs purchase these defendants’ stock at an inflated price

or risk legal action. Jackson and Hallsworth threatened the Huffs

with economic damage from the sue of confidential business

information gained by Hallsworth while working as an accountant

for Acro-Tech. I consider these sufficient allegations for three

predicate acts of extortion.

Plaintiffs also allege that Jackson threatened to destroy the

value of Huff's patents. This does not adequately plead extortion

because it does not allege the wrongful way in which the value of

the patents would be destroyed. One way to destroy the value of a

patent, by inventing something better, is not wrongful.

Defendants allegedly used their status as shareholders to

threaten Acro-Tech board members that their personal assets were

at risk from shareholder litigation. Although the substance of the

extortion is adequately pled, I doubt that all seven defendants were

involved. I will not consider this as a predicate act until plaintiffs

specify which defendants engaged in the conduct.

On numerous occasions, Jackson and Hallsworth allegedly

attempted to coerce plaintiffs into signing a promissory note on

behalf of Acro-Tech to pay for the repurchase of shares from

Jackson Trust, with the note secured by all assets of Acro-Tech,

including its patents. I will not consider this a predicate act until

plaintiffs specify the coercion and approximate time frame. The

coercion details are necessary to determine if there was extortion

and the time frames are necessary when analyzing below if a

pattern exists.

Plaintiffs also allege that Jackson and Hallsworth

demanded in March 1997 that Reggie Huff meet with them and a

board member. There is nothing wrongful about this conduct as

alleged.

Jackson and Hallsworth allegedly made extortionate

demands for improvements to the property leased to plaintiffs

which plaintiffs did not owe under the terms of the lease. Plaintiffs

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must give specifics of what demands were made and why they

were wrongful under the terms of the lease.

ili. Trave! Act

Among other things, the Travel Act prohibits use of the

mails or any facility of interstate commerce, including the

telephone system, with the intent to promote, manage, establish,

carry on, or facilitate the promotion, management, establishment,

or carrying on, of certain unlawful activity, namely extortion as

alleged by plaintiffs. 18 U.S.C. § 1952(a)(3). None of the predicate

acts of extortion which are sufficiently alleged, as explained above,

allege that the mail or facilities of interstate commerce were

involved. Thus, there are no predicate acts of violation of the

Travel Act under the current allegations.

iv. Transportation of Stolen Money

The violation of the act prohibiting the transportation of

stolen goods or money, as alleged by plaintiffs, states that whoever

transports, transmits, or transfers in interstate commerce $5,000 or

more of money, known to be stolen or taken by fraud, violates the

statute. 18 U.S.C. § 2314. Plaintiffs allege that money in excess of

$5,000 obtained from a fraudulently obtained lease between Acro-

Tech and LB Land was deposited in various banking institutions

knowing that the money was obtained by fraud. Acro-Tech

allegedly entered into a three-year lease with LB Land in reliance

on representations from Jackson. No specifics are alleged on how

the lease was fraudulently obtained. This predicate act is not

sufficiently alleged.

sa Pattern

Defendants contend that plaintiffs do not adequately allege

a pattern of racketeering activity because the actions do not give

rise to the required continuity.

A pattern is at least two acts of racketeering activity within

ten years of each other. Howard v. America Online, Inc., 208 F.3d

741, 746 (9" Cir.), cert. denied, 531 U.S. 828 (2000); 18 U.S.C. §

1961(5). Although two acts are necessary, they are not sufficient to

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find a violation. A pattern requires a showing of a relationship

between the predicates and of the threat of continuing activity. Id.

at 746.

“Related conduct embraces criminal acts that have the

same or similar purposes, results, participants, victims, or methods

of commission, or otherwise are interrelated by distinguishing

characteristics and are not isolated events.” Id. at 749 (quoting

H.J., Inc. v. northwestern Bell Telephone Co., 492 U.S. 229, 240,

109 S. Ct. 2893 (1989)) (internal quotation marks omitted). Having

the same participants, by itself, ic insufficient to establish

relatedness. Id.

The continuity requirement requires a plaintiff to prove

either “a series of related predicates extending over a substantial

period of time [, i.e., closed-ended continuity], or “past conduct

that by its nature projects into the future with a threat of repetition

[i.e., open-ended continuity]” Id. at 750 (internal citations

omitted). Predicate acts extending over a few months are not

sufficiently continuous to meet the requirement for close-ended

continuity. Id. Open-ended continuity is shown by predicate acts

that specifically threaten repetition or become a “regular way of

doing business.” Id.

Based on the analysis above, plaintiffs currently allege

three predicate acts of extortion: (1) in January 1997, Jackson

demanded that the Huffs surrender all but 3% of their stock at less

than market value; (2) in April 1997, Jackson, Luann Jackson, and

John Hallsworth demanded that plaintiffs purchase these

defendants’ stock at an inflated price; and (3) Jackson and

Hallsworth threatened the Huffs with economic damage from the

use of confidential business information gained by Hallsworth.

Plaintiffs generally allege that defendants are trying to

acquire Acro-Tech for no compensation to gain control of its

patents. The second predicate act, a demand to repurchase

defendants’ stock, is opposed to that purpose.

I am unable to say that the three predicates show open-

ended continuity because the current situation of stock ownership

and the value of the patents, such as when they expire, is not

alleged. Thus, I have no way to determine if a scheme to gain

ee

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control of the patents would likely continue into the future. I

cannot say that the three predicates show close-ended continuity

because the two which are tied to dates took place only three

months apart. Consequently, plaintiffs have failed to allege a

pattern of racketeering activity.

In summary, the alleged violation of RICO § 1962f© is

dismissed for failure to adequately plead an enterprise and a

pattern of racketeering activity.

B. Section 1962(a) and (b) (Claim Two)

The second claim alleges violations of sections (a) and (b)

of RICO:

(a) It shall be unlawful for any person who has

received any income derived, directly or indirectly, from a

pattern of racketeering activity or through collection of an

unlawful debt in which such person has participated as a

principal within the meaning of section 2, title 18, United

States Code, to use or invest, directly or indirectly, any part of

such income, or the proceeds of such income, in acquisition of

any interest in, or the establishment or operation of, any

enterprise which is engaged in, or the activities of which

affect, interstate or foreign commerce. A purchase of securities

on the open market for purposes of investment, and without the

intention of controlling or participating in the control of the

issuer, or of assisting another to do so, shali not be unlawful

under this subsection if the securities of the issuer held by the

purchase, the members of his immediate family, and his or

their accomplices in any pattern or racketeering activity or the

collection of an unlawful debt after such purchase do not

amount in the aggregate to one percent of the outstanding

securities of any one class, and do not confer, either in law or

in fact, the power to elect one or more directors of the issuer.

(b) It shall be unlawful for any person through a

pattern of racketeering activity or through collection of an

unlawful debt to acquire or maintain, directly or indirectly, any

interest in or control of any enterprise which is engaged in, or

the activities of which affect, interstate or foreign commerce.

ria

LOT FES NAS PR IT AE

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18 U.S.C. § 1962.

Defendants first contend that the arguments above also

apply to this claim. This is not true concerning whether an

enterprise is sufficiently alleged.

The “enterprise” referred to in subsections (a) and (b) is

thus something acquired through the use of illegal activities or

by money obtained from illegal activities. The enterprise in

these subsections is the victim of unlawful activity....

By contrast, the “enterprise” in subsection (c) connotes

generally the vehicle through which the unlawful pattern of

racketeering activity is committed, rather than the victim of the

activity.

National Organization for Women, Inc. v. Scheidler, 510 U.S. 249,

259, 114 S. Ct. 798 (1994). Plaintiffs are correct that the enterprise

referred to in this claim is Acro-Tech itself.

The § 1962(a) and (b) claim fails because plaintiffs have

not adequately alleged a pattern of racketeering activity. Moreover,

none of the three remaining predicate acts allegedly resulted in

control of Acro-Tech. Plaintiffs do not allege that they capitulated

in any of the extortion. This is fatal to the § 1962(b) part of claim

two. The § 1962(a) part of claim two also suffers from lack of any

income being derived from the remaining predicate acts. The only

income to defendants alleged by plaintiffs would be the rent, but

none of the predicate acts predicate acts concerning the rent were

adequately pleaded. Cleim Two is dismissed..

B. Sectiow 1962(d) (Claim Three)

Defendants note that this conspiracy claim must fail

because the substantive RICO claims are not adequately pleaded.

Boutin also contends that plaintiffs do not adequately allege an

argument.

“To establish a violation of section 1962(d) [conspiracy],

Plaintiffs must allege either an agreement that is a substantive

violation of RICO or that the defendants agreed to commit, or

participated in, a violation of two predicate offenses.” A § 1962(d)

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conspiracy claim cannot survive if the substantive claim does not

state an action upon which relief could ever be granted. Howard v.

America Online, Inc., 208 F.3d 741, 751 cg" Cir.), cert. denied,

531 U.S. 828 (2000).

Because “he substantive RICO violations are being

dismissed, the conspiracy claim must also be dismissed.

Il. Oregon RICO

Oregon RICO, ORS 166.715-166.735, is modeled after the

federal statute. Federal cases interpreting the federal statute are

persuasive in interpreting the intent of the Oregon legislature. State

v. Blossom, 88 Or. App. 75, 78-79, 744 P.2d 281 (1987), rev.

denied, 305 Or. 22 (1988).

In claim 4, plaintiffs allege a violation of ORS 166.720(3),

which parallels § 1961(c). Consequently, Claim 4 is dismissed for

insufficiently alleging an enterprise.

In Claim 5, plaintiffs allege a violation of ORS 166.720(2),

which parallels § 1962(b). Claim 5 is dismissed for insufficiently

alleging a pattern of racketeering activity.

Plaintiffs allege in Claim 6 a violation of ORS 166.720(4),

which parallels § 1961(d), a RICO conspiracy. Claim 6 is

dismissed for lack of a properly pleaded substantive Oregon RICO

claim.

Il. State Common Law Claims

A. Abuse of Process

An abuse of process is the “perversion of legal procedure

to accomplish an ulterior purpose when the procedure is

commenced improper form and with probable cause.” Kelly v.

McBarron, 258 Or. 149, 154, 482 P.2d 187 (1971). The elements

of abuse of process are: (1) an ulterior purpose; (2) a willful act in

the use of process not proper in the regular conduct of the

proceeding; (3) injuries beyond those which are a common burden

on parties to litigation; and (4) an actual arrest or a seizure of

property. Larsen v. Credit Bureau, 279 Or. 405, 408, 568 P.2d 657

(1977); Clausen v. Carstens, 83 Or. App. 112, 118, 730 P.2d 604

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(1986) (imposition of a receiver on spouse’s business during a

dissolution proceeding which caused immediate interference with

the business and its income and credit is a special injury);

Reynolds v. Given, 72 Or. App. 248, 256, 695 P.2d 946 (1985)

(counterclaim in a replevin action for plaintiff to receive property

awarded to defendant by probate court; plaintiff never had the

property so it was not seized from her).

Plaintiffs allege that the two FED actions and the

mandamsis proceeding for access to corporate records werz

brought to divert their resources into the defense of litigation

claims, furthering defendants’ goal of taking control of Acro-Tech.

No arrest or seizure of property is pleaded. Plaintiffs distinguish

Reynolds because it is also an action for replevin of property.

Clausen was not, however. Its underlying case was a bitter

dissolution proceeding in which the spouse’s business was

“seized” by the receiver. Moreover, the court reaffirmed this

element in Lee v. Mitchel, 152 Or. App. 159, 179, 953 P.2d 414

(1998). Plaintiffs also do not plead any injuries beyond having to

defend the actions. In Clausen, the business collapsed. Finally,

plaintiffs allege no willful act improper in the normal course of the

proceedings.

The abuse of process claim is dismissed.

B. Interference with Business Relations

Defendants contend that plaintiffs do not allege

interference with existing contracts or other business relations

Acro-Tech had with other parties. Defendants also contend that the

allegations that defendants were trying to take over the business

does not state a claim for this tort.

The elements of the torts of intentional interference with

economic relations are: (1) the existence of a professional or

business relationship; (2) intentional interference with the

relationship; (3) by a third party, (4) accomplished through

improper means or for an improper purpose; (5) a causal effect

between the interference and damage to the economic relationship;

and (6) damages. McGanty v. Staudenraus, 321 Or. 532, 535, 901

P.2d 841 (1995).

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The only allegations I see that relate to any type of a

relationship with a third party are those concerning some of

defendants coercing two board members to resign. There are no

allegations that these are economic relationships or of the damages

caused by the resignations. This claim is dismissed.

‘. Breach of Contract

Plaintiffs allege that the Jacksons, Jackson Trust, and LB

Land breached the lease dated March 19, 1996, by interfering with

plaintiffs’ right to the quiet and peaceful enjoyment of the leased

premises, by filing wrongful FED actions, and by seeking to

impose repair costs incident to a potential termination of the lease

which are unauthorized by the lease agreement.

Defendants contend that plaintiffs failed to allege

interference with plaintiffs’ use or occupation of the premises, as

opposed to annoyance caused by defendants’ actions, do not allege

that the lease prohibits filing FED actions, and are talking about

prospective conduct only concerning the repair costs, which is not

a current breach of the lease.

Defendants’ arguments are well taken. Plaintiffs

acknowledge that they failed to allege that they were eventually

forced from the premises. I also note that a contract can only be

breached by a party to the contract. Likewise, damages for breach

of contract are only suffered by a party to the contract or a third

party beneficiary. Paragraph 15 alleges that Acro-Tech leased the

premises from LB Land. Typically, these two parties are the only

ones involved in a breach of the lease.

The breach of contract claim is dismissed.

IV. Leave to Replead

Defendants ask that the action be dismissed with prejudice

because of the numerous previous cases between the parties.

Although that is true, I intend to ignore the past history unless an

event is relevant to a claim before me or a court ruling has

preclusive effect. Neither of these affect whether repleading will be

futile. Consequently, I will give plaintiffs a chance to replead the

complaint to correct the problems discussed above.

19

I make a few other requests of plaintiffs. With this many

parties in a case, it is hard to track which claims are alleged by and

against which parties. I ask that plaintiffs keep their use of the

generic terms “plaintiffs” and “defendants” to instances in which

they apply to all plaintiffs or all defendants. Otherwise, list out the

proper parties taking part in the conduct being alleged. In

particular, in the title for each claim, list the defendants who are

allegedly liable for the claim. Also remember that longer is not

necessarily better. The first amended complaint contains a lot of

redundant information, making it difficult to find the allegations

which support a claim. For example, J§ 15, 17, 19 could have been

combined into one much shorter paragraph while conveying the

same information. Paragraphs 36, 38(d), and 38(f) appear to be

talking about the same conduct. Paragraphs 20 and 21 are not

relevant to any of the claims. The complaint should be streamlined

before the additional required details are added.

CONCLUSION

Plaintiff's motion to strike (#54) is granted. The analysis is

based on the allegations in the complaint.

Defendant Boutin’s motion to dismiss (#46), defendants

Hallsworth and JDH Services, Inc.’s motions to dismiss (#48), and

defendants Robert Jackson, Luann Jackson, The Robert K. Jackson

Family Trust and LB Land, Inc.’s motion to dismiss (#50) are

granted. Plaintiffs may file a second amended complaint within 20

days of the date of this opinion. Discovery will remain stayed until

the court rules on any motions to dismiss the second amended

complaint, or until defendants’ time to respond to the second

amended complaint passes, whichever is later.

Defendants Hallsworth and JDH Services, Inc.’s motion to

dismiss or to stay or to enlarge time (#26) and defendants Robert

and Luann Jackson, The Robert K. Jackson Family Trust (“Jackson

Trust”) and LB Land, Inc.’s motion to dismiss or to stay or to

enlarge time (#24) are denied as moot.

Dated this 6" day of September, 2001.

GARR M. KING

United States District Judge

20

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ACRO-TECH, INC; an

Oregon Corp.;

REGGIE D. HUFF and

LISA A. HUFF,

Plaintiffs,

Civil No. 01-447 KI

OPINION

Vv.

)

)

)

)

)

)

THE ROBERT JACKSON )

FAMILY TRUST; L.B. )

LAND, INC., an Oregon +) FILED

)

)

)

)

)

)

)

)

)

Corp; JDH SERVICES 2002 JAN -3 A 9:29

INC., an Oregon Corp.; CLERK U.S. DISTRICT

JOHN D. HALLSWORTH, COURT

JR.; ROBERT K. DISTRICT OF OREGON

JACKSON; LUANN PORTLAND, OREGON

JACKSON; and BY JIL

RODERICK A. BOUTIN,

Defendants.

21

Herbert G. Grey

14355 S.W. Allen Boulevard, Suite 1000

Beaverton, Oregon 97005-4404

David B. Adler

520 East Denney Way

Seattle, Washington 98122

Attorneys for Plaintiffs

Roderick A. Boutin

Bowerman & Boutin, LLP

P.O. Box 100

Oregon City, Oregon 97045

S. Michael Rose

David K. Miller

Miller & Wagner

2210 N. W. Flanders

Portland, Oregon 97210

William H. Stockton

Brisbee & Stockton, LLC

139 N. E. Lincoln Street

P.O. Box 567

Hillsboro, Oregon 97124

Attorneys for Defendants

KING, Judge:

Plaintiffs Reggie and Lisa Huff allege that defendants

engaged in various schemes to steal the Huff’s business, plaintiff

Acro-Tech, Inc., away from them. On September 6, 2001, I

granted all defendants’ motions to dismiss the first amended

complaint but gave plaintiffs leave to file a second amended

complaint. Defendants moved against the second amended

22

complaint (corrected) (““Complaint”)'. Before the court are

defendants Hallsworth and JDH Services, Inc.’s motion to dismiss

(72), defendants Robert Jackson, Luann Jackson, The Robert K.

Jackson Family Trust and LB Land, Inc.’s motion to dismiss all

RICO claims with prejudice and decline supplemental jurisdiction

on the remaining state common law claims.

" Plaintiffs discovered some small errors in the Second

Amended Complaint and filed a corrected version. I will refer to

the corrected version as the “Complaint.”

OVERVIEW OF ALLEGED FACTS

Plaintiffs Reggie and Lisa Huff are the founders and

majority shareholders of plaintiff Acro-Tech, Inc. Huff patented

four inventions related to internal combustion engine performance

and environmental compatibility. He assigned some of the patents

to Acro-Tech. Plaintiffs allege that defendants, acting through an

enterprise, tried to acquire Acro-Tech through unlawful means and

for no compensation in order to gain control of its patents.

Defendants’ methods included three schemes: (1) attempt to

acquire Acro-Tech and gain control of the patents; (2) use of

positions as shareholders to demand that Acro-Tech buy them out

at an inflated price or risk legal action; and (3) force Acro-Tech to

defend frivolous lawsuits concerning its leased office space.

LEGAL STANDARDS

A motion to dismiss under Rule 12(b)(6) will only be

granted if it “appears beyond doubt that the plaintiff can prove no

set of facts in support of his complaint which would entitle him to

relief.” Gilligan v. Jamco Development Corp., 108 F.3d 246, 248

(9" Cir. 1997). Normally, the review is limited to the complaint,

and all allegations of material fact are taken as true and viewed in

the light most favorable to the non-moving party. Id. The court,

however, may consider whether conclusory allegations follow

from the description of facts alleged. Holden v. Hagopian, 978

F.2d 1115, 1121 (9 Cir. 1992).

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23

A court may deny leave to amend when any proposed

amendment would be futile. Reddy v. Litton Industries, Inc., 912

F.2d 291, 296 (9" Cir. 1990), cert. denied, 502 U.S. 921 (1991).

DISCUSSION

I. Preliminary Matters

Before the court are motions to dismiss for failure to state

a claim. Accordingly, the analysis will be based on the allegations

as they stand in the current Complaint. Therefore, I deny plaintiffs’

motion for Rule 56(f) discovery because I am not going to engage

in any fact finding, as they contend. I also will not consider the

additional evidence contained in the Declaration of Reggie Huff.

Il. RICO

A. Section 1962 (Claim One)

The Racketeer Influence and Corrupt Organizations Act

(“RICO”) prohibits the following:

(c) It shall be unlawful for any person employed by or

associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprise’s affairs through a pattern of racketeering activity or

collection of unlawful debt.

18 U.S.C. § 1962(c).

A violation under § 1962(c) requires proof of: (1) conduct;

(2) of an enterprise; (3) through a pattern; (4) of racketeering

activity. Howard v. America Online, Inc., 208 F.3d 741, 746 cg"

Cir.), , 208 F.3d 741, 746 (9" Cir.), cert. denied, 531 U.S. 828

(2000).

Defendants contend that plaintiffs do not adequately allege

a separate enterprise.

An enterprise under RICO includes groups with a formal

legal structure and groups whose members merely associate in

fact. Simon v. Value Behavior Health, Inc., 208 F.3d 1073, 1083

(9" Cir.), amended on other grounds, 234 F.3d 428 (9" Cir. 2000),

24

cert. denied, 121 S. Ct. 843 (2001). A group cannot be an

enterprise, however, unless it exists independently from the

racketeering activity in which it engages. It must have some sort of

structure for making decisions and mechanisms for controlling and

directing the affairs of the group on an on- -going basis rather than

an ad hoc basis. A conspiracy is not a RICO enterprise. Id.

Plaintiffs allege the following facts concerning the

structure of the enterprise. The enterprise is an association in fact

comprised of Jackson, Jackson Trust, Hallsworth, LB Land, and

JDH Services. Jackson, Luann Jackson, and Hallsworth controlled

the enterprise through their positions as officers and directors of

the corporations which are members of the enterprise. Decisions

were collectively made by Jackson and Hallsworth and each

worked in cooperation with the other as indicated by the exchange

of stock between them and the sharing of confidential information

learned by Hallsworth from his work as an accountant for Acro-

Tech. Boutin controlled the enterprise as counsel of record in

various court proceedings and as trustee on deeds of trust.

Plaintiffs do not sufficiently allege the structure of the

enterprise or its mechanism for directing its affairs. The conclusory

allegation, made on information and belief, that Jackson and

Hallsworth collectively make decisions is based on the separate

conduct each was engaged in, the allegation that the two men

owned JDH Services together, and the transfer of stock between

them. The allegations of misconduct vary greatly, allegedly

ranging from extortion of board members to groundless FED

actions to complaints filed with government agencies regulating

securities. Considering this, the allegations are insufficient to plead

control of the enterprise on an on-going rather than an ad hoc

basis. Moreover, plaintiffs allege that Boutin, who is not an alleged

member of the enterprise, controls its affairs. That would be a most

unusual management structure. There is also no allegation that the

enterprise utilized a structure separate and apart from the predicate

acts to distribute the proceeds of the transactions. See Chang v.

Chen, 80 F.3d 1293, 1300 (9" Cir. 1996).

Plaintiffs contend that the inclusion of two corporations in

the enterprise satisfies the requirement that the enterprise is an

PERI AN ERT igs BEDE TON AE TATA A

RAID TA OR

25

entity separate and apart from the pattern of racketeering activity

in which it engages, relying on Chang. Chang held that the

involvement of a corporation which has an existence separate from

its participation in the racketeering activity can satisfy the

enterprise element’s requirement of a separate structure. The court

went on to find that although the corporation was named as a

member of the enterprise, the complaint did not allege how the

corporation was related to or participated in the alleged enterprise.

Consequently, the court held that the complaint did not properly

allege an enterprise. Id. at 1300-01.

I previously stated that the employment of JDH Services to

perform accounting services, thus giving JDH Services access to

Acro-Tech’s confidential business and financial infurmation, and

LB Land’s use of the lease as a basis for FED litigation was

adequate to meet the test under Chang for a separate entity. On

further reflection, I have changed my mind.

In Planned Parenthood v. American Coalition of Life

Activists, 945 F. Supp. 1355 (D. Or. 1996), reh’g en banc granted,

268 F.3d 908 (9" Cir. 2001), the court held that the American

Coalition of Life Activists (“ACLA”), a national organization, was

the RICO enterprise. The other defendants and enterprise members

were also members of ACLA, including a separate organization,

Advocates for Life Ministries. The court dismissed the single

defendant who did not belong to the ACLA. Thus, the

organizational structure of the ACLA was one and the same as the

organizational structure of the enterprise. Id. at 1384-85.

Likewise, in Webster v. Omnitrition International, Inc., 79

F.3d 776 (9" Cir.), cert. denied, 519 U.S. 96 (1996), the

corporation which was allegedly running a pyramid sales scheme

was found to be the RICO enterprise. Id. at 876-87. The other

members of the enterprise were officers and other principals of the

corporation, and its outside counsel.

Finally, in Simon v. Value Behavior health, Inc., 208 F.3d

1073 (9" Cir.), amended on other grounds, 234 F.3d 428 (9" Cir.

2000), cert. denied, 121 S. Ct. 843 (2001), the court held that

plaintiff alleged that defendants collaborated to defraud health plan

beneficiaries but did not adequately allege a RICO enterprise. The

26

numerous defendants, primarily insurance companies and their

agents, insurance industry trade groups, employee benefit plans,

employers, and governmental entities, included many corporations.

Based on a study of the facts in these cases, I conclude that

plaintiffs have not adequately alleged how an enterprise consisting

of two corporations, a trust, and two men who allegedly control the

three entities, are structured and operate as an enterprise as

opposed to an ad hoc conspiracy. Accordingly, the § 1962(c)

RICO claim (claim one) is dismissed.

B. Section 1962(b) (Claim Two)

The second claim alleges violations of section (b) of

RICO:

(b) It shall be unlawful for any person through a pattern of

racketeering activity or through collection of an unlawful debt

to acquire or maintain, directly or indirectly, any interest in or

control of any enterprise which is engaged in, or the activities

of which affect, interstate or foreign commerce.

18 U.S.C. § 1962(b).

Defendants contend that plaintiffs fail to allege a pattern of

racketeering activity and fail to allege that anything was acquired

through the use of illegal activities.

Plaintiffs allege that some of the defendants attempted to

gain control of Acro-Tech through the nonmonetary means of

pressuring board members to resign and filing complaints with

state agencies regulating securities. “Control” under § 1962(b)

does not require formal control such as holding a majority of stock

or being named as an officer or director. Ikuno v. Yip, 912 F.2d

306, 310 cg" Cir. 1990). The control required, however, is

obtaining a financial interest in the enterprise. See National

Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 259

(1994) (victim enterprise must be an entity that was acquired).

The only financial interest or control of Acro-Tech alleged

by plaintiffs is that on July 16, 1996, Jackson Trust purchased

$50,000 of Acro-Tech stock which was later transferred among

various defendants. There is no allegation that this stock was

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27

obtained through racketeering activity. It appears to be a legitimate

purchase which was allegedly later used as leverage by defendants.

That allegation, however, does not state a claim under § 1962(b).

Compare Gagan v. American Cablevision, Inc., 77 F.3d 951, 961

(7" Cir. 1996) (evidence of defendants acquiring interests in

limited partnerships with stolen funds and funds converted from

the limited partners themselves supports a § 1962(b) claim) with

Discon, Inc. v. Nynex Corp., 93 F.3d 1055, 1062 (2™ Cir. 1996)

(control of victim enterprise legally acquired during a divestiture

fails to state a claim under § 1962(b)), cert. denied, 522 U.S. 908

(1997).

Consequently, plaintiffs’ second claim under § 1962(b) is

dismissed.

.. Section 1962(d) (Claim Three)

“To establish a violation of section 1962(d) [conspiracy],

Plaintiffs must allege either an agreement that is a substantive

violation of RICO or that the defendants agreed to commit, or

participated in, a violation of two predicate offenses.” A § 1962(d)

conspiracy claim cannot survive if the substantive claim does not

state an action upon which relief could ever be granted. Howard v.

America Online, Inc., 208 F.3d 741, 751 (9" Cir.), cert. denied,

531 U.S. 828 (2000).

Because the substantive RICO violations are being

dismissed, the conspiracy claim must also be dismissed.

Ill. Oregon RICO

Oregon RICO, ORS 166.715-166.735, is modeled after the

federal statute. Federal cases interpreting the federal statute are

persuasive in interpreting the intent of the Oregon legislature. State

v. Blossom, 88 Or. App. 75, 78-79, 744 P.2d 281 (1987), rev.

denied, 305 Or. 22 (1988).

In Claim Four, plaintiffs allege a violation of ORS

166.720(3), which parallels § 1962(c). Consequently, Claim Four

is dismissed for insufficiently alleging an enterprise.

In Claim Five, plaintiffs allege a violation of ORS

166.720(2), which parallels § 1962(b). Claim Five is dismissed for

-“

28

insufficiently alleging an interest acquired by racketeering

activities.

Plaintiffs allege in Claim Six a violation of ORS

166.720(4), which parallels § 1962(d), a RICO conspiracy. Claim

Six is dismissed for lack of a properly pleaded substantive Oregon

RICO claim.

IV. Type of Dismissal for RICO Claims

Although the Complaint is entitled the Second Amended

Complaint (Corrected), it is the fourth complaint plaintiffs filed in

this action. I wrote a lengthy opinion dismissing the First

Amended Complaint which explained in detail the deficiencies in

the allegations and gave plaintiffs permission to replead.

Consequently, all RICO and Oregon RICO claims dismissed in the

Second Amended Complaint (Corrected) are dismissed with

prejudice.

IV. State Common Law Claims

Plaintiffs’ remaining claims, for abuse of process,

intentional interference with business and economic relations, and

breach of contract, all arise under Oregon common law. All federal

claims have been dismissed and there is no diversity jurisdiction. I

decline to exercise supplemental jurisdiction over the three state

law claims and dismiss them without prejudice. 28 U.S.C. §

1367(c)(3).

CONCLUSION

Defendant Hallsworth and JDH Services, Inc.’s motions to

dismiss (#72), defendants Robert Jackson, Luann Jackson, The

Robert K. Jackson Family Trust and LB Land, Inc.’s motion to

dismiss (#74), and defendant Boutin’s motion to dismiss (#76) are

granted in part. The action is dismissed.

DATED this 2 day of January 2002.

GARR M. KING

United States District Court Judge

= et eo |

29

HERBERT G. GREY, OSB 81025

14355 SW Allen Boulevard, Suite 1000

Beaverton, OR 97005-4404

Telephone: 503-641-4908

Email: hgrey.law@gte.net

A TRUE COPY

DAVID B. ADLER, WSBA 16585 Herbert Grey

520 East Denney Way

Seattle, Washington 98122

Tel: 206-343-5991

Fax: 206-343-7807

Email: Dlawyer48@aol.com

Attorneys for the Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ACRO-TECH, INC; an )

Oregon Corp., REGGIE

D. HUFF; and LISA G.

HUFF,

CASE No. CV’01-447 KI

PLAINTIFFS’ MOTION FOR

RECONSIDERATION/

AMEND JUDGMENT

Plaintiffs,

vs.

THE ROBERT JACKSON

FAMILY TRUST; L. B.

LAND, INC., an Oregon

)

)

)

)

)

) Non-Discovery Motion

)

)

Corp; JOH SERVICES )

)

)

)

)

)

)

)

Oral Argument Requested

INC., an Oregon Corp.;

JOHN D. HALLSWORTH,

Jr.; ROBERT K.

JACKSON; LUANN

JACKSON; and

RODERICK A. BOUTIN

Plaintiffs, by and through their undersigned counsel, '

respectfully move this Court to reconsider and reverse its Opinion

and Judgment of January 2, 2002 dismissing with prejudice the

federal RICO claims and the State ORICO claims in the Second

Amended Complaint, and declining jurisdiction over the state

claims. ? For the following reasons, Plaintiffs contend that the

Court’s application of the RICO substantive law requirements at

the pleading stage was in error, and further that the Court erred in

" At present undersigned counsel are counsel of record for

1) Acro-Tech Inc.; 2) Lisa Huff; and 3) Reggie Huff. Mr. Reggie

Huff, as an individual, has informed his attorneys that he is

asserting his right to represent himself and has directed his counsel

to cease representing him as his personal attorney on this case.

However, LR 83.11, (D. Or.) states that counsel may withdraw

only “with leave of court” and following the filing of a motion to

withdraw. There is some conflict between the client’s direction to

his attorneys, which would leave the client in a pro se status, and

the Court’s rules on the method and timing for withdrawal.

Therefore, this Motion for Reconsideration is filed on behalf of

Reggie Huff only pending the Court’s approval nunc pro tunc and

issuance of an Order once a motion to withdraw as attorney for

Reggie Huff is filed by counsel.

? The Judgment was entered upon a Rule 12(b)(6) Motion

to Dismiss. Plaintiffs respectfully suggest that the use of the term

“Judgment” for entry of an Order of Dismissal may be

inappropriate. Judgments are normally listed in Rules 55-57

dealing with an Order which has the effect of awarding some king

of affirmative relief upon a specific claim to the moving party. A

Rule 12(b)(6) Motion seeks no such relief. However, an Order of

dismissal of the Complaint has the effect of a “Judgment” for

purposed of the right to appeal. See FRCivP Rule 54(a).

Given the Court’s entry of a “Judgment”, Rule 59(d) and

(e) appear appropo the filing of a motion for reconsideration. This

Motion for Reconsideration or Amendment of Judgment is styled

to conform with that Rule even though there has been no trial or

award of relief upon a claim.

BEST RAN NNR OF RHE mE pL SCP OR” > —

—

EN

2

ee ee eT ae en eo . aoe. ered

31

not allowing the Plaintiffs the opportunity to file a Third

Amended Complaint to satisfy the changed interpretation of

RICO’s “Enterprise” requirements as set forth in the Court’s

opinion. Plaintiffs submit that by reversing its earlier opinion on

the meaning of Chang v Chen, 80 F. 3d 1293 (9" Cir., 1996) , 80

F. 3d 1293 (9" Cir., 1996) after the Second Amended Complaint

had been filed, the Court should allow the Plaintiffs to file a

revised Complaint in conformity with the Court’s new explanation

of RICO. See Rule 15(a), F.R. Civ. Proc.

1. The § 1962(c) RICO claim, 18 U.S.C. § 1962(c) was

dismissed upon the Court’s conclusion that the Second Amended

Complaint (hereinafter deemed simply “the Complaint’) failed

to adequately allege the existence of an Enterprise independent

of the racketeering activity in which it engages, i.e. with a

“structure for making decisions and mechanisms for controlling

and directing the affairs of the group on an ongoing basis rather

than an ad hoc basis.” Opinion, page 4. In so ruling the Court did

not decide that any other grounds for dismissal of the various

RICO claims as raised by Defendants existed. Accordingly,

Plaintiffs assume that the other bases for dismissal asserted by

the Defendants was/were denied. Plaintiffs urge this Court to

reconsider its decision on the Enterprise element and reverse its

Judgment of dismissal of this claim..

2. The Court also has dismissed the Complaint with prejudice

without leave to file an Amended Complaint ‘« conform to the

Court’s new opinion on the pleading requires “nts imposed by

RICO. In so doing, the Court reversed its ow . earlier opinion

[which had dismissed the First Amended complaint for lack of a

pattern] which found there was an Enterprise based on Chang v

Chen, 80 F. 3d 1293 (9" Cir., 1996). That earlier opinion

imposed guidelines for the drafting of the Second Amended

Complaint. Se Opinion page 5: “I have changed my mind.” This

mid-trial modification in how the court is applying RICO results

in extreme prejudice to the Plaintiffs as they are now punished

with a dismissal with prejudice for not conforming to a Judicial

opinion that did not exist and could not be anticipated during the

drafting of the Second Amended Complaint. Not only has the

_emnseaaanaaasaamaammmmaaaamm i 2,

SE Gl ih KR ee Se

32

court tightened the standards for pleading under Rule 8, but it

has imposed new pleading requirements not found in RICO and

which are inconsistent with the RICO statue itself. See Infra.

Now not only must a structure within the meaning of Chang be

alleged, but the Plaintiff must also be able to divine and plead

the internal structure of the Enterprise that is seeking to take over

its business and is engaging in racketeering activities that are

known only by the impact they have on the victim-Plaintiffs.

The use of rew pleading rules and the revision to this

Court’s own explication of Chang v Chen warrant that Plaintiffs

be permitted to file another Amended Complaint. Otherwise the

Plaintiffs are punished for the Court’s own actions which benefit

only Defendants without the participation of Plaintiffs in the

litigation/motions process. Rule 15 commands that leave to

amend be granted liberally. That standard includes the

opportunity to insert in the Complaint those facts which comport

with the Court’s current declaration of the law.

3. DISMISSAL OF THE § 1962(c) CLAIM WAS IN ERROR.

The Court’s view of the necessary elements of an Enterprise

which must be alleged (not proven) at the pleading stage is

erroneous. See Opinion at pp. 5-7. The Court has incorrectly

grafted an economic analysis onto the RICO statute contrary to

several explicit opinions from the Supreme Court rejecting such

any revisionist interpretation of the plain language of the RICO

Statute.

a. The Court requires that the Complaint allege how the

“proceeds of the transactions” were distributed and relate that

to the structure of the Enterprise. This is a new requirement for

a RICO complaint. The Supreme Court has focused on the

decision making process with regard to the commission of the

predicate acts, not to the later-in-time distribution of

“proceeds”, whatever that term may mean. A RICO violation

foes not require proof of any “proceeds” or any other

economic benefit to the defendants. RICO has always been

understood, by Congress, the Supreme Court, and other federal

courts as punishing those who would use racketeering

activities to exert control over other persons or organizations

33

such that interstate commerce is affected. See, e.g. See U.S. v

Santoni, 585 F.2d 667, at 673 (4 Cir., 1978), cert. den. 440

U.S. 910 (Extortion conviction based on loss of the property

right “to make a business decision free form outside pressure

wrongfully imposed...Extortion ... does not require a direct

benefit to the extortionist, the gravamen of the offense is loss

to the victim; and such loss includes intangible as well as

tangible property” (citations omitted); Reeves _v_Ernst_&

Young, 507 U.S. 170 (1993); Nat’! Org. for Women_v

Scheifler, 510 U.S. 249 (1994).

b. In NOW v Scheidler the Supreme Court specifically held

that RICO does not require an economic motive. Hence there

can be no requirement that a Complaint address how proceeds

are distributed since there need be no proceeds at all. Id at 258-

261. “Predicate acts may not benefit the protesters

[defendants] financially but may drain money from the

economy by harming businesses....”. As the Supreme Court

noted, the language of subsection (b) does not mandate that the

Enterprise be a “profit-seeking” entity. Nothing further is

required for a Subsection (c) Enterprise. In that situation the

Enterprise is engaging in unlawful activities directed at other,

yet “it need not have ... an economic motive for engaging in

illegal activity; it need only be an association in fact that

engages in a pattern of racketeering activity”. Id at 259.

c. The Court has erred in interpreting the definition of

Enterprise under Chang v Chen as requiring that the members

of the Association-in Fact Enterprise also be participants,

employees, or owners of the corporation that is used to give

structure to the Enterprise within the meaning of Chang v

Chen. See Opinion, page 6. The Court erred in dictating that in

an association in fact Enterprise, 18 U.S.C. § 196 4) requires

that a corporation be synonymous, if not identicai, with the

Enterprise. See Opinion, page 6. Again the court’s application

of Chang v Chen is used to re-write the RICO statue itself and

impose requirements and restrictions not found within the

statute itself. This the Court cannot do. See Sedima v Imrex,

473 U.S. 479 (1985); U.S. v_Turkette, 452 U.S. 579, 581

ee |

eee ween

34

(1981); H.J. Inc. v Northwestern Bell Tel., 492 U.S. 229, 248

(1989). An Enterprise includes any entity capable of making a

decision. It may consist solely of a corporation or it may

consist of a corporation acting together with other individuals

associated in fact even though the group itself is “not a legal

entity”. See 18 U.S.C. § 1961(4). The that the group need not

be a legal entity is contrary to this Court’s Opinion holding

that individuals and separate corporations that make up the

Enterprise must be bound together in some form of singular

“legal entity’. The Court’s interpretation of Planned

Parenthood v_ American Coalition of Life Activists, 945 F.

Supp. 1355 (D. Or., 1966) reh. En banc granted, 268 F.3d 908

(9" Cir., 2001); Webster v Omnitrition Int’]. Inc., 79 F.3d 776 :

(9" Cir.,) cert. den. 519 U.S. 96 (1996); and Simon v Value

Behavioral health, Inc., 208 F.3d 1073 (9" Cir.), amended on

other grounds 234 F.3d 428 (9" Cir., 2000), cert. den, -U.S.-,

121 S.Ct. 843 (2001) rewrites the statutory definition of an

Enterprise and directly limits the statute to prosecution of only

intra-corporate conspiracies as association in fact enterprises.

d. The Court’s requirement that a Complaint alleging an

association in fact enterprise, which includes a corporation

must also describe how operational decisions are made within

the Enterprise, is incorrect and puts the trial cart before the

discovery horse. Rule 8 does not require that this kind of proof :

be elaborated within the Complaint itself. Rule 56 is the proper

procedural vehicle for claiming that the facts do not indicate a

structured decision making process as opposed to an ad hoc

conspiracy. Rule 56 authorizes a Court to make a factual

determination of whether and how the Enterprise operates.

This new requirement for RICO pleading incorporates the

issue of control required in order to make an individual liable

as a participant for the predicate acts committed by and

through the Enterprise, See Reeves v Ernst & Young, 507 U.S.

LEON OTE ETN MO IROL GEOL! TORO. A RN FN

PIER SOME ET

170 (1993), into the basic definition of the Enterprise for

pleading purposes. 18 U.S.C. § 1961(4) does not contain in its

definition any limitation on Enterprise to those groups of

35

individuals associated in fact which have any one form of

structure and/or operation.

e. The Complaint adequately alleges how the Enterprise

operates. It alleges that Jackson and Hallsworth are partners in

JDH Services, and as partners each controlled that corporation.

It alleges that Jackson owns and controls both JDH Services

and LB Land, Inc. and also The Jackson Family Trust. It

alleges that Defendant Boutin directed and controlled the

Enterprise in his efforts to gain control over the patents on

behalf of the Enterprise and that he also served as Trustee on

various Deeds of Trust executed by the Jackson Family Trust.

The Trust was also the corporate vehicle used to purchase

shares of stock in Acro-Tech which shares were later

exchanged between the Trust and Hallsworth, who was also

Jackson’s partner in JDH Services. Unless someone was taking

notes, there is nothing more that can be alleged in the

Complaint in advance of discovery on the decision-making

process. There is no factual basis upon which this Court can

rely to conclude that decisions were not made collectively by

Defendants Jackson, Hallsworth, and Boutin.

f. The Court erred in characterizing the Enterprise as simply an

“ad hoc conspiracy”. See Opinion, page 6. The Court did not

grant the Defendants’ Rule 12(b)(6) motion to dismiss on the

basis that no pattern was adequately alleged. The allegation of

a pattern is inconsistent with the finding of an “ad hoc

conspiracy”. “Ad hoc” and “Pattern” are mutually exclusive

terms. Once the pattern is shown, the Plaintiff is entitled to

prove either a substantive violation under §§ 1962(b) or (c) or

a conspiracy under § 1062(d). Proof of a conspiracy does not

negate the existence of an Enterprise. See Salinas v U.S., 522

U.S. 52 at 65 (1997) [§1962(c) violations are often conducted

by more than one person thus making it “difficult to determine

just where the enterprise ends and the conspiracy begins...”]

The Court’s opinion has erred in using the existence of a

conspiracy to deny the existence of an Enterprise.

4. THE DISMISSAL OF THE §1962(B) CLAIM WAS IN

ERROR. The Court again demands factual proof in the

36

Complaint of damages suffered by Acro-Tech and has imposed

the duty to plead the obtaining of a financial interest in the

Enterprise in a §1962(b) Claim. This is contrary to the Supreme

Court’s clear ruling in NOW v Scheidler, 510 U.S. 259 (1994)

that no economic motive need be alleged. Acquisition of a

financial interest is but one means of acquiring control. In NOW

v_Scheidler the defendant protesters were not trying to obtain

any financial interest in the targeted corporation. Rather they

were trying to prevent it from operating. The Supreme Court

upheld the use of RICO to fight this type of enterprise activity

under 18 U.S.C. §1962(c). The Court’s citation to NOW_v

Scheidler, 510 U.S. at 259 is a misreading of the decision. The

Supreme Court only held that under a §1962(a) or (b) claim the

Enterprise is the entity that is being acquired through illegal

activity. The preceding portion of that sentence stated that “...(b)

does not mandate that the enterprise be a ‘profit-seeking”

entity”. For a §1962(c) violation the Enterprise is not required to

have any “economic motive for engaging in economic activity”.

Id at 259.

a. The Complaint alleges the acquisition of control over Acro-

Tech through a pattern of racketeering, i.e. extortion and mail

fraud. “Control” as a noun is defined by Black’s Law

Dictionary as: “The ability to exercise a directing or

restraining influence over something”. The allegations in the

Complaint meet that definition under the §1962(b) claim.

b. Defendants Jackson and Hallsworth and the Jackson Family

Trust acquired a financial interest in Acro-Tech which they

then used to acquire control through acts of racketeering.

c. The Defendants acquired their stock ownership, or financial

interest in Acro-Tech, through acts of racketeering, to wit:

Mail and Wire Fraud as is alleged in the Complaint. The lease

of office space LB Land is alleged to have been induced by

acts of mail and wire fraud. The rent money and the value of

improvements to the leased space was then used by the

Defendants to purchase stock in Acro-Tech. The Court’s

opinion disregards the continuing line between the initial

predicate acts and the use of the proceeds from the

——

37

racketeering to acquire a stock-ownership interest in Acro-

Tech as the victim Enterprise under §1962(b).

5. THE COURT ERRED IN DISMISSING THE CONSPIRACY

CLAIM, §1962(d). For the reasons stated in Salinas v. ULS., 522

U.S. 52, 63-66 (1997) and the RICO statue itself, the Court erred

in concluding that the conspiracy claim cannot exist independent

of the substantive RICO claims under §1962(b) and (c),

a. To sustain a §1962(b) or (c) claim, two or more overt

(predicate) acts must be proven to establish the pattern of

racketeering. The RICO conspiracy claim does not require

proof of any overt predicate act by a co-conspirator. At most,

some act must be proven as part of the damages or standing

aspect of the claim which limits recovery to those persons

injured “by reason of” a §1962 violation. See 18 USC

§1964(c). The Court’s Opinion indicates that a pattern of

racketeering was shown by the Complaint. In Salinas the

Court ruled that under §1962(d) “there is no requirement of

some overt act or specific act... the RICO conspiracy

provision is, then, even more comprehensive that the general

conspiracy offense in §371.” id at 63, “The RICO conspiracy

statue §1962(d), broadened conspiracy coverage by omitting

the requirement of an over act...” Id at 64. Based on this the

Supreme Court held:

“It is elementary that a conspiracy may exist and be

punished whether or not the substantive crime ensues,

for conspiracy is a distinct evil, dangerous to the

public and so punishable in itself.” Id at 65.

b. Congress intended that a conspiracy claim could be asserted

independent of the substantive claims. Otherwise it would

have relied upon the general conspiracy statute, 18 U.S.C.

§371 to punish persons who conspire to violate §§1962(b) or

(c). The creation of a separate RICO conspiracy statute

together with the language of §1964(c) means that a

conspiracy claim may be asserted with or without a violation

of the substantive crimes in subsections (a), (b) or (c).

§1964(c) treats equally without distinction the separate

subsections of §1962(a), (b), (c) or (d) in authorizing civil

38

suit by persons injured by reason of the racketeering activity

This Court’s opinion has rewritten the statute and rendered

superfluous the specific language used by Congress in

creating four separate causes of action in 18 USC §1962.

EXERCISE OF SUPPLEMENTAL JURISDICTION

OVER STATE COMMON LAW CLAIMS

The court specifically declined to exercise supplemental

jurisdiction over plaintiffs’ state law claims, relying on 28 USC §

1367(c)(3). Opinion, p. 8. While plaintiffs appreciate the court’s

dismissal of those claims was without prejudice, the reality is

plaintiffs will be hard-pressed to successfully prosecute those

claims anywhere except this court.

As represented to the court previously, plaintiffs dismissed

their predecessor state lawsuit in Columbia County Circuit court in

light of Judge Ashmanskas’ remand in USDC Case No. CVO1-

00212 AS and were prepared to litigate all their state and federal

claims fully in the instant action. It is likely those claims cannot be

filed or revived in state court due to potential claim preclusion

and/or statute of limitations defenses. The running of the statute of

limitations on a pendent state law claim is a salient factor to be

evaluated in deciding whether the federal court should retain

jurisdiction of such claims. O’Connor v. Commonwealth Gas Co.,

251 F.3d 262 (1" Cir, 2001). Clearly the same rationale obtains

with respect to possible claim preclusion.

With particular reference to RICO claims, supplemental

jurisdiction was found to exist over state law claims, even though

individual plaintiffs lacked standing to bring RICO claims, and no

diversity existed, because all the claims arose from the same

nucleus of operative facts. Jerry Kubecka, Inc. v. Avellino, 898 F.

Supp. 963 (EDNY, 1995).

Respectfully, the court should retain jurisdiction over

Plaintiffs’ state common law claims, irrespective of the disposition

of the federal statutory claims.

CONCLUSION:

The Court’s judgment should be vacated and its Opinion

rescinded. The motions to dismiss should be denied. It cannot be

39

said that there are no set of facts under which the RICO claims

cannot be proven, once the Court reconsiders and amends its

erroneous interpretation of the RICO statute. For the same reasons

the ORICO claims should be reinstated and the Court should

accept ancillary jurisdiction over the Oregon state law claims.

DATED this 14" day of January, 2002.

Herbert G. Grey, OSB # 81025

David B. Adler, WSBA # 16585

Of Attorneys for Plaintiffs

40

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

\y)

/V\

ACRO-TECH,INC;an ) — U.S.D.C. Or. “

Oregon Corp.; ) No: CV’01-447 KI

ee ) Ninth Circuit

and ) No. 02-35176

REGGIE D. HUFF; LISA G.)

HUFF )

Plaintiffs— Appellants _)

a | ) RICO

THE ROBERT JACKSON )

FAMILY TRUST; L.B. _ )

LAND, INC., an Oregon __)

Corp; JOH SERVICES )

INC., an Oregon Corp.; )

JOHN D. HALLSWORTH, )

Jr.; ROBERT K. )

JACKSON; LUANN )

JACKSON; RODERICK _ )

A. BOUTIN )

Defendants — Appellees _)

Informal

APPELLANTS’ BRIEF

4]

Appeal from judgment of dismissal with prejudice in part

and without prejudice in part and orders denying reconsideration

for relief from judgment of the U.S. District Court for the District

of Oregon.

The Honorable Garr M. King, U.S.D.C. Judge

Reggie D. Huff and

Lisa G. Huff

34685 Bachelor Flat Road

St. Helens, Oregon 97051

(503)366-0223 or (800)936-9394

Plaintiff — Appellants Pro se

42

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

95 Seventh Street, P.O. Box 193939

San Francisco, CA 94119-3939

December 5, 2002

CA No. 02-35176 Acro-tech Inc. v. The Robert K.

Recently you received notice that the United States Court

of Appeals was considering submitting your case without oral

argument. That notice reflected the tentative assignment of your

case to a panel of the Court assigned to decide cases without oral

argument.

Upon further consideration, the Court has decided that

your case should be reassigned to an oral argument panel.

Although in most instances a reassigned case will receive oral

argument, the panel of judges to whom the case will be assigned

has discretion to order the case submitted on the briefs without oral

argument. When the time and place for argument before or

submission to an argument panel has been determined by the

Court, our office will notify you by mail.

Very truly yours,

Cathy A. Catterson

Court Clerk

By: Tim Hom

Deputy Clerk

See Rn ne ner et ne nent cee ci eS AS a nnn Ns tc ennennnecr eee ee cseommcnsor senna meee

43

From the desk of:

Reggie D. Huff

SPO Box 4651

Warren, OH 44483

(330)372-6615

Cathy A Catterson and/or Tim Hom

Clerk of Court / Deputy Clerk

U. S. Court of Appeals for the Ninth Circuit

95 Seventh Street

PO Box 193939

San Francisco, CA 94119-3939 “

RE: CA No. #02-35176 Acro-tech Inc. v. The Robert K.

June 24, 2003

Dear Ms. Catterson and/or Mr. Hom:

I am in receipt of your letter dated December 5, 2002 regarding

submission of the above case to the court for oral arguments.

Thank you for your astute administration of this matter. I agree

that a case of this rare, classic RICO nature should be given every

opportunity to be fully heard and analyzed. Upon further reflection

I should have requested oral arguments. Please forgive my

trepidation.

While the thought of making oral arguments before the Ninth

Circuit would understandably make me a little nervous, please

inform the court that I intend to embrace the responsibility. |

intend to be prepared and able to answer most questions one would

anticipate in this case.

Also, I should not have a problem scheduling a trip to San

Francisco at any time between now and at least the end of the year.

Thank you again for your astute administration.

Very truly yours, cc: S. Michael Rose; Michael T.

Reggie D. Huff— Appellant Stone; Roderick Boutin/Defendant

44

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOCATION OF HEARING FOR SEPTEMBER CALENDAR:

United States District Court

Mark O. Hatfield United States Courthouse

1000 Southwest Third Avenue

Portland, OR 97204-2902

Date of Notice

July 22, 2003

wria@ Picture ID required to enter Courthouse

All CJA Counsel call (415) 556-9853 for travel authorization

Thursday, September 11, 2003 9:30 a.m. Courtroom 16

( ) * 02-35460 Gibertson v. Albright

( ) * 02-35470 Graham v. Barnhart

( ) * 02-3548] Hodge v. Barnhart

( ) * 02-35541 Cochrane v. Barnhart

( ) * 02-35203 _ Conaway v. Baker County

( ) * 02-35268 Rotec v. Mitsubishi Corp.

Friday, September 12, 2003 9:30 a.m. Courtroom 16

(¥) * 02-35176 Acro-Tech, Inc. v. Jackson Family Trust

( ) * 02-35240 James W. Fowler v. Norchem, Inc.

( ) * 02-35252 Brooks v. Barnhart

( ) * 02-35264 Thrush v. Barnhart

( ) * 02-35278 Oatman v. Barnhart

( ) * 02-35374 Desyllas v. Bernstine

( ) * 02-35398 Arboireau v. adidas-Salomon

( ) * 02-35471 Batson v. Barnhart

*Maximum argument time 10 minutes per side

+Maximum argument time 15 minutes per side

Other Cases 20 minutes per side

Please return the enclosed Acknowledgment

of Hearing Notice to the Clerk’s Office

www.ca9.uscourts.gov

fe ssa

RS Ma be AO ye es alk A Nebr had

aA Nahely

CAS, ro eS TAS at baal

chaine Fastioin Sa

Ce tet Oat ion Nine RS i ict ict nN Sash CHAS

45

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ACRO-TECH, INC., an Oregon Corp.,

Plaintiff,

and,

REGGIE D. HUFF and LISA G. HUFF,

Plaintiffs — Appellants,

v.

THE ROBERT JACKSON FAMILY

TRUST; LB LAND, INC., an Oregon

Corp.; JOH SERVICES INC., an Oregon

Corp., JOHN D. HALLSWORTH, JR.;

ROBERT K. JACKSON; LUANN

JACKSON; and RODERICK BOUTIN,

Defendants — Appellees.

No. 02-35176

D.C. No. CV-01-447-KI

ORDER

FILED

AUG 26 2003

CATHY A.

CATTERSON,

CLERK

U.S. COURT OF

APPEALS

This case shall be submitted on the briefs and record,

without oral argument, on September 12, 2003, in Portland,

Oregon, pursuant to Fed. R.App. P. 34(a)(2).

FOR THE COURT

CATHY A CATTERSON

CLERK OF COURT

By.

Howard Hom

Deputy Clerk

46

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ACRO-TECH, INC., an Oregon Corp., | No. 02-35176

Plaintiff, D.C. No. CV-01-447-KI

and,

REGGIE D. HUFF and LISA G. HUFF,| ORDER

Plaintiffs — Appellants,

FILED

v. AUG 28 2003

CATHY A.

THE ROBERT JACKSON FAMILY CATTERSON,

TRUST; LB LAND, INC., an Oregon CLERK

Corp.; JOH SERVICES INC., an Oregon U.S. COURT OF

Corp., JOHN D. HALLSWORTH, JR.; APPEALS

ROBERT K. JACKSON; LUANN

JACKSON; and RODERICK BOUTIN,

Defendants — Appellees.

Appellants’ Motion for Reconsideration of Order for Case

Submission Without Oral Arguments is DENIED.

Pursuant to Federal Rule of Appellate Procedure 28(j), a

citation of supplemental authority may be provided by letter at any

time before the court renders its decision.

FOR THE COURT

CATHY A CATTERSON

CLERK OF COURT

By:

Howard Hom

Deputy Clerk

i

EPI SMA EM PI PTET it ANE RBCS, CNet SSE “igh hehe

LEASES cat di

47

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ACRO-TECH, INC., an Oregon Corp.,

Plaintiff,

and,

REGGIE D. HUFF and LISA G. HUFF,

Plaintiffs — Appellants,

V.

THE ROBERT JACKSON FAMILY

TRUST; LB LAND, INC., an Oregon

Corp.; JDH SERVICES INC., an Oregon

Corp., JOHN D. HALLSWORTH, JR.;

ROBERT K. JACKSON; LUANN

JACKSON; and RODERICK BOUTIN,

Defendants — Appellees.

No. 02-35176

D.C. No. CV-01-447-KI

MEMORANDUM

FILED

SEP 30 2003

CATHY A.

CATTERSON,

CLERK

U.S. COURT OF

APPEALS

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as may be

provided by Ninth Circuit Rule 36-3.

48

Submitted September 12, 2003**

Portland, Oregon

Before: ALDISERT,*** GRABER, and GOULD, Circuit Judges.

Plaintiffs Reggie and Lisa Huff appeal the district court’s

dismissal of their state and federal RICO actions against

Defendants.

1. The district court did not err in dismissing Plaintiffs’

18 U.S.C. § 1962(c) RICO and Oregon Revised Statute (“ORS”) §

166.720(3) ORICO claims. Reviewing de novo, we agree with the

district court’s holding that Plaintiffs’ Second Amended Complaint

did not adequately plead “enterprise.”

Plaintiffs alleged that Hallsworth and Robert Jackson

made decisions together and worked cooperatively. This allegation

is one of conspiracy — it does not satisfy the standard that an

enterprise must, “[a]t minimum, ... have some sort of structure ...

for the making of decision s and some mechanisms for controlling

and directing the affairs of the group on an on-going, rather than an

ad hoc, basis.” Simon v. Value Behavioral Health, Inc., 208 F.3d

1073, 1083 (9" Cir. 2000) (internal quotation marks omitted).

Plaintiffs’ allegation that Boutin exercised control over the

enterprise is also inadequate. Boutin was not a member of the

alleged enterprise. Further, it is unclear how Boutin could have

“exercised control” over the enterprise via “consultation and

advice” to Jackson and Hallsworth, who themselves were alleged

to have “exercised control.”

Including two corporations in the enterprise does not per

se satisfy the requirement that the enterprise be a separate entity

apart from the pattern of racketeering activity in which it engages.

Chang v. Chen, 80 F.3d 1293, 1300 (9" Cir. 1996): see also

Simon, 208 F.3d at 1083-84. In this case, Plaintiffs failed to allege

** This panel unanimously finds this case suitable for

decision without oral argument. Fed. R. App. P. 34(a)(2).

*** The Honorable Ruggero J. Aldisert, Senior Judge,

United States Court of Appeals for the Third Circuit, sitting by

designation.

- - :

LANE ARN Me aD 5 ee Ss hee te Sl

“oe.

BO ian ARO ae i ictd LOEB ithe

EA tag Mec ED

49

either that a system of authority existed in a Separate enterprise or

that Defendants utilized a structure apart from the predicate acts to

distribute the proceeds of the racketeering activity.

Oregon’s RICO is modeled after the federal statute.

Federal cases interpreting the federal statute are persuasive in

interpreting the parallel Oregon provision. State v. Blossom, 744

P.2d 281, 283 (Or. Ct. App. 1987). ORS § 166.720(3) parallels §

1962(c). Because the district court correctly dismissed Plaintiffs’ §

1962(c) claim, the court also correctly dismissed Plaintiffs’ ORS §

166.720)3) claim.

2. The district court did not err in dismissing Plaintiffs’

18 U.S.C. § 1962(b) RICO and ORS § 166.720(2) ORICO claims.

The district court erred in its application of the “control” standard.

See Ikuno v. Yip, 912 F.2d 306, 310 (9" Cir. 1990). Nevertheless,

Plaintiffs failed to adequately allege that Defendants gained

control of Acro-Tech through racketeering activity. We therefore

affirm the dismissal on this ground supported by the record. See

Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750

(9 Cir. 2001).

Plaintiffs allege that Defendants gained control of Acro-

Tech through three courses of conduct. F irst, Plaintiffs allege that

Defendants exercised control over Acro-Tech as the owner of

$50,000 in stock. However, as the district court noted, the stock

purchase was legal, and therefore did not involve the acquiring of

control through racketeering activity.

Second, Plaintiffs allege that Defendants sought to gain

control of Acro-Tech as lessors on the lease for Acro-Tech’s office

space. Third, Plaintiffs allege that Defendants sought to gain

control of Acro-Tech by hiring Hallsworth as accountant and

bookkeeper. Defendants allege that the business lease and

accounting services were induced by fraud and, thus, represent an

attempt to gain control through racketeering activity. Plaintiffs’

allegations of fraud, however, are general and do not provide the

necessary particularity. See Advocacy Org. for Patients &

Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 322 (6" Cir.

1999). Therefore, Plaintiffs failed to adequately allege that

Defendants gained control of Acro-Tech through racketeering

50

activity. For the same reasons, Plaintiffs failed to adequately plead

an ORS § 166.720(2) claim, which tracks § 1962(b).

3. The district court did not abuse its discretion when it

denied Plaintiffs’ leave to amend their § 1962(c) claim. In this

case, two factors support the court’s denial of leave to amend:

futility of amendment and the fact that Plaintiffs previously

amended the complaint. See Allen v. City of Beverly Hills, 911 F

2.d 367, 373 (9" Cir. 1990). The district court noted that Plaintiffs’

Second Amended Complaint (Corrected) was in fact the fourth

complaint Plaintiffs filed in this action. Plaintiffs were represented

by counsel when they filed their Second Amended Complaint, and

that filing followed the district court’s September 2001 order,

which had explained in detail what needed to be pleaded.

4. The district court did not abuse its discretion in

declining jurisdiction over Plaintiffs’ remaining non-RICO state-

law claims. 28 U.S.C. § 1367(c)3).

5. The district court did not abuse its discretion in its

award of costs and fees to Defendants. Defendants were the

prevailing party, and the district court therefore had the discretion

to award fees under Federal Rule of Civil Procedure 54(d) and

ORS § 166.725(14).

The district court awarded Defendants Hallsworth and

JDH Services fees in the amount of $20,000; Defendant Boutin

$15,000; and Defendants Luann and Robert K. Jackson, LB Land,

and the Family Trust $20,000. In the light of the number of

motions, orders and amended complaints filed in this action, a total

award of fees of $55,000 was reasonable.

AFFIRMED.

51

Reggie D. Huff - Appellant

‘ Lisa G. Huff - Appellant

i PO Box 4351

: Warren, OH 44482

Phone: 330-372-6615

Fax: 330-372-6316

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

U. S. Court of Appeals Docket Number: 02-35176

Lower Court Docket Number: CV-01-447 KI

ACRO-TECH, INC; an ) PETITION TO APPOINT

RODERICK A. BOUTIN,

Defendants — Appellees.

Oregon Corp., ) INDEPENDENT

Plaintiff, ) COMMITTEE TO

; : INVESTIGATE CHARGES

and ) OF ILLEGAL

DISCRIMINATION UPON

) a omer; LIRA ge CLASS OF PEOPLE BY

: . THE 9°" CIRCUIT,

Plaintiffs — Appellants, _) AND

i ) PETITION TO SUSPEND

JUDGES GRABER, GOULD,

THE ROBERT JACKSON ) AND ALDISERT PENDING

FAMILY TRUST; L. B. ) DISPOSITION OF

LAND, an Oregon Corp; ___) CHARGES

| JDH SERVICES INC.,an_ ) _ AND/OR

; Oregon Corp.; JOHN D. s+) PETITION FOR

HALLSWORTH, JR.; ) REHEARING

ROBERT K. JACKSON; )

LUANN JACKSON; ) (EN BANC REQUESTED)

)

)

52

Appellants Reggie D. Huff and Lisa G. Huff and in lieu of

ACRO-TECH, Inc. an Oregon Corporation unable to appear

respectfully assert facts charging that 9" Circuit judges Graber,

Gould, and Aldersert did in fact engage in discrimination upon

individuals as of class based solely on their ability to afford

counsel, irregardless of subject matter relevancy to cause for

insolvency.

Said conduct has in fact deliberately abridged appellants

“right” to an appeal in direct contravention of the 14"

Amendment of the United States Constitution, by depriving

appellants of liberty and property without “due process of law”,

and of “equal protection” therein. Said conduct results in an

indirect violation of the 7 Amendment of the United States

Constitution as well.

STATEMENT OF RICO & CIvIL RICO

Congress designed RICO to be a powerful weapon against

organized crime that fronts as legitimate enterprise while targeting

legitimate enterprises for theft, control of assets, and/or violent

destruction for non-capitulation.

In Sedima (Sedima v. Imrex 473 U.S. 479} the U. S.

Supreme Court defined Congress’s intent for civil RICO. Congress

recognized that organized criminals often avoid criminal

prosecution for a myriad of reasons that have nothing to do with

innocence. Congress saw the value in victims being able to protect

themselves and simultaneously deter crime through a powerful

“quasi criminal” proceeding.

Civil RICO was not designed to be a weapon against

minor business fraud, common securities fraud, and _ political

protestors, etc. However, these types of cases have enjoyed some

success in the courts including the 9” Circuit. In fact, this

bastardization has resulted in the targeted RICO cases, involving

extortion, blackmail, bribes, combined with fraud, obstruction of

justice, and threats of physical harm becoming the extreme

exception. This is especially true on the West Coast. (See 10 Am

Jur Proof of Facts 3d-299)

53

STATEMENT OF THE SERIOUS NATURE OF THE CASE AT BAR

In light of the statement above:

U. S. District Court Judge GARR M. KING was forced to

recuse himself from this case due to the discovery of personal

and professional interests tied to the defendants. The racketeers

paid a law firm a large sum of money to engage in serious

misconduct on their behalf. Judge King had practiced law with

a defendant and his partner for the same client, sometimes on

the same cases, in the recent past. Further, it was discovered

that Judge King’s most valua¥le client was misappropriating

funds to pay for the said RICO defendants’ defense. This

course of conduct put Judge King’s personal friends and

colleagues at serious risk of discipline, lost income, lost

employment, and lawsuits from other law firms or worse,

mainly if the funds were lost due to this case being successful.

These discoveries and the recusal came after Judge King’s

dismissal of this case. Judge King’s dismissal of this case was

so prejudicial and illegal that it prompted the investigation that

led to these discoveries.

After Judge King was caught His clerk called appellants’

counsel, Herb Grey, to inform him that Judge King had

ordered the marshals office to begin an investigation of

appellant Reggie D. Huff. This freaked out appellants’ counsel

and caused serious damage to the appellants. Later it was

discovered that the claimed order of investigation was false,

apparently designed to frighten appellants away from pursuing

the issue of Judge King’s disqualification. Judge King is

responsible for his clerks and may have directed this serious

extra judicial misconduct. This matter should be investigated

openly before the public. Judge King and his staff should all be

questioned under oath in a manner consistent with a desire to

verify the truth.

Appellants had desired not to raise this issue on appeal.

However, defendants had already lied about this and spun it to

claim that appellants had engaged in misconduct and Judge

King was merely an innocent victim. Since this is a lie,

54

nonetheless, very favorable to some judges who may rule on

our case, not defending oneself is not an option. You can

directly thank the defendants for this ¢oming out.

This case includes classic criminal RICO elements such as:

Extortion

Blackmail

Coercion

Travel act violations

Obstruction of justice

Threats of physical harm

. Ete.

This case includes classic criminal RICO evidence not limited

to and including:

a. Secret audio-tapes, already deemed by court as legal, in

which the main defendant explains in explicit terms

ultimatum threats. In one tape Jackson discusses a

previous victim circumsiance in which gun play

occurred and the victim was forced to flee under threat

of death.

b. Damning documents in perp’s own handwriting.

c. Sworn testimony of many highly credible and

unimpeachable witnesses.

d. Fraudulent public documents of the smoking gun

variety.

e. Perjury wherein perp’s absolute material sworn

statements are directly impeached by perp’s own

explicit tape-recorded statements.

Many facts and evidence have been tested before an actual

jury. The jury concluded that the defendants’ conduct was so

egregious and relentless that it reduced the value of the

victims’ commercial lease to zero (0). That judgment stands.

This RICO case was originally pled under the signature of a

former federal prosecutor and RICO specialist with perhaps

more experience in RICO on both sides than any other attorney

in the northwest, (at least 6 cases).

Other victims, elderly, that have no affiliation to plaintiffs in

this case have come forward and have lodged similar

mmeacse

OREM

“JL. —

55

complaints to the local DA, Steven Atchison. (Phone # 503-

397-0300 )

7. The victim enterprise engaged in very promising

e1:vironmental research that was funded in part by the EPA.

8. At this point all courts involved are required by law to accept

all facts alleged including 30+ crimes in the complaint as true.

9. The true number of victims that have suffered quantifiable as

well as non-quantifiable damage as a result of the noted “true”

crimes is approximately 150.

THE CHARGE

Despite the factual character of the case, available upon

the reviewable record, the assigned appellate panel treated this case

as frivolous, and violated the 14" Amendment right to due process

and equal protection under the law. This treatment was purely

based on the fact that the case is currently represented by pro se

appellants, rather than a famous attorney or law firm. After

expending much capital for a RICO specialist, the pro se

representation itself is prima fascia evidence of the “control” effect

of the ongoing crime that is true, and remaining unanswered by the

defendants, must by law be accepted as true in this court.

The fact that the victim enterprise can no longer afford

counsel and had to drop out of the appeal, and that individual

victims were forced into pro se service in light of the crimes,

should have led to this case being treated much more seriously

than the run of the mill civil case. Instead the exact opposite

occurred.

The crux of the charge here today is not merely that

appellants received an improper appeal, aithough elements are

clearly improper, but that fundamentally appellants received no

appeal at all.

While to many it may make perfect sense to assume that

judges from this court may abuse their power to protect a fellow

District Court judge from his own improper conduct, which

resulted in his belated recusal, appellants here are NOT making

that charge. Appellants currently have no evidence to support this

56

charge. However, appellants respectfully point out that to the

public the treatment of this case does not look good.

FACTS & EVIDENCE SUPPORTING THE CHARGE

Appellants conducted a study of 9" Circuit cases using

West Law ® to determine if, in fact, there is a large statistical

difference in the outcome of cases in which appellants were pro se

v. those that could afford counsel. A large enough difference

simply cannot be reconciled with arguments of frivolity, etc.

The parameters of study are as follows:

1. Sample only from the mos* recent cases backward.

Sample approximately 200 civil cases for each category.

3. The pro se sample obviously must exclude cases where

attorneys are acting pro se and it is obvious to the court, or

where pro se appellant is one of several, where others are

represented by counsel.

4. This court has been accused, rightly or wrongly, of being a

pro-criminal court. As obvious law-abiding victims of crime,

appellants here are interested in the treatment of law-abiding

pro se appellants. Therefore convicted criminals and illegal

aliens are excluded.

The pro se sample reveals only two (2) cases resulting in

reversal in favor of pro se appellants. They are: Newdow v. U. S.

Congress 292 F.3d. 597 and Hall v. Norton 266 F.3d 969. This is

approximately 1%. However it must be noted that both of these

cases involve controversial issues of public policy in the areas this

court has been previously noted for having favored for

advancement of certain political causes and not necessarily the

law. ' Noting this distinction it would appear that victims of crime

1 Appellants are in fact environmentalists. Appellant Reggie D. Huff

takes great pride in and has been recognized for his work in reducing auto

emissions through increased efficiency. Mr. Huff is a holder of four (4)

patents. He has won a competitive research contract with the EPA. His

work has been published by the EPA, Popular Science, Motor Trend

Magazine, and a host of lessor known publications. Dr. Edgar Berkey, of

Center for hazardous Material Research, or CHMR, has formally

57

who are unable to present an issue of the “politically correct”

variety have ZERO (0) percent chance of having the errors against

them reversed.

The comparison sample reveals that, at a minimum, the

District Courts commit error on approximately 50% of their cases

that are brought before the Appeals Court. Therefore, an argument

that pro se appellants receive fair and actual review on the law is

also an argumeni that the lower courts’ error rate magically drops

to at or near zero (0) only where pro se appellants are involved.

Some judges like to claim that judges in general go out of

their way to be fair to pro se litigants. Reality tells a different story,

especially in cases wherein the opposing side has counsel and no

chance to win on the law. The goal is to kill competition against

attorneys. ” Therefore, pro se litigants find their intelligence being

insulted. The law, binding precedent, court rules, and plain

common sense are routinely suspended or violated in a manner

consistent with assisting the attorneys on the other side. These

errors are simply hidden within the perceived complexities of the

law and the perception that the appellant system is an effective

check.

In addition, appellants’ short study shows that there is

virtually no accountability through the appellate system. The lack

of accountability would always tend to make the error rate increase

and never would allow it to reduce 50 times to 1% or less. Even if

one could prove that lower court judges are three (3) times more

accurate when dealing with pro se litigants the sample should

reveal approximately 33 cases of reversal, not just two (2)

‘politically correct’ ones.

recognized and praised Mr. Huff’s work.

2 The legal profession is akin to a major industry in which many have

become very affluent and powerful by promoting the perception that one

has no chance of success unless one hires one of its sanctioned

practitioners. Judges are a product of that industry and have the power to

Squash competition and hide the fact, all while rationalizing there is some

greater good in it. Surely not all do this.

58

No industry in the world, if given the opportunity to put a

legal stamp upon an illegal squashing of its competition, would not

do so. To ask judges to exercise restraint in dealing with pro se

litigants is asking them to go against human nature. Nonetheless,

the Constitution demands it.

It is clear that many judges are simply biased against pro

se appellants for being pro se. This puts the pro se appellants on an

unequal footing before a single argument is read, if the arguments

are even read at all.

In Douglas v. California 372 U.S. 3531 83 S. Ct. 814 (1963)

Justice Clark, dissenting, argued against 14° Amendment

protection for pro se appellants saying: ~

“We all know that the overwhelming percentage of in forma

p?uperis appeals are frivolous.”

He then cited some statistics in a footnote to support his

arguments. First, he assumes that all pro se appeals are given the

exact same respect, time, energy, and fair objective analysis in

determining their merits. Then he simultaneously contends that

they are virtually all a waste of the court’s time. The statistics back

this up in his mind, which teaches to disrespect pro se appeals as a

waste of time, which leads to high failure rates, which are then

used to prove they are frivolous and a waste of time, and so on.

This becomes a circular argument and a self-fulfilling prophecy.

Justice Clark used this bias to describe the appointment of counsel

to indigent appellants as a “useless gesture” and an “utter

extravagance and a waste of the state’s funds.”

Apparently, in Justice Clark’s world, the mere fact one

finds oneself poor, without respect to cause or intelligence, is proof

enough of the ‘utter uselessness’ of one’s case before a single fact

or argument is even read. i

HUFF V. JACKSON

Once in a lifetime a case develops into the perfect test case

to prove judicial bias against pro se appellants. Such a case may

serve well for many years as the poster child of the evils of pro se

discrimination.

rl

ee ee eee ee ye

shea ho i al,

59

The extremely fortuitous elements in this case that form

the ultimate test case are not limited to and include the following:

1. Serious non-frivolous nature that is not debatable. (See

“Statement of Serious Nature of This Case.”)

2. The reason the pro se appellants are pro se is honorable and

acts as prima fascia evidence in support of the merits of the

case itself. -

3. Pro se appellants are otherwise credible contributors to society,

and victims of relentless crime.

4. The case is at a stage where the charges of crime are not

debatable, but are all “true”.

5. The case does not directly involve certain types of politically

correct subject matter that may skew the test.

6. The case is 100% reversible upon fair and actual review on the

law, both current and common.

7. Briefs are written with direct assistance of an attorney with a

record of winning appeals in the 9" Circuit. This eliminates the

false argument that pro se appellants are incapable of

presenting cognizable legal arguments.

8. The case contains the highly unusual effective stipulation of

reversible error on the record by the lower court itself. This

eliminates debate as to whether there is error plain enough that

any fair and actual review simply could and would not miss it.

9. A former federal prosecutor found the court’s errors so

plentiful and egregious that he called them “extreme

prejudice” and demanded the courts entire Opinion be

“rescinded”.

A test case is very important for verification of the

Statistical evidence and to support the charge of illegal

discrimination.

The statistical evidence, and the actual experience of pro

se litigants as a class, as well as the inherent bias among many

Judges, such as Justice Clark, would predict that this test case

would be treated merely as an opportunity to rubber stamp the

District Court’s illegal rulings and administration. No actual

absolute statutory right of appeal would be respected. Whole

questions on appeal under this court’s non-discretionary

60

jurisdiction will be completely ignored, and not ruled on, in direct

violation of appellants’ right to an appeal. Any memorandum

produced will not contain one shred of evidence that a single word

of the appellants’ arguments, precedent, facts, authorities, etc.,

were even read, let alone considered.

Others would predict the exact opposite, claiming that all

appeals receive the saine thorough, exacting, fair, complete and

actual review. And any actual reversible error would be reversed,

regardless of the ability of the appellants to afford counsel.

ANALYSIS OF FACTUAL TREATMENT OF TEST CASE

The Notice of Appeal in this case states clearly what is

being appealed:

1. “Final Order denying the Second Amended Motion for

Reconsideration”

2. “Final Order denying Motion for Relief from Judgment”

The actual orders were included with the Notice of Appeal.

The First Amended Notice of Appeal states:

“Final Order denying the Motions (2) for Reconsideration”

2. “Final Order denying Motion for Relief from Judgement”

And the actual orders were included with the Notice.

The Appeilants’ Brief included on its title page the

following:

“Appeal from ... orders denying reconsideration for relief

from judgment of the U. S. District Court for the District of

Oregon.”

The Appellants’ Brief includes in the statement of issues

presented for review the following:

(5) Did the District Court abuse discretion in denial of

plaintiffs’ various motions for reconsideration under FRCP

59(e) and/or 60(b) and 15(a)?”

Also, it is self-evident that appellants paid their court fees

and met all statutory requirements for asserting “appeal as of

right.”

ee

+

After some eighteen (18) months appellants have received

no review or ruling on these final orders. They were simply

ignored. This is key to the charge.

61

Further, appellants raised the issue in their Brief:

“(4) Did the District Court abuse discretion under FRCP

15(a)?”

Yet the panel only ruled that the court did not abuse

discretion in disallowing repleading in one claim, 18 USC

§1962(c), and did not rule on five (5) other RICO claims.

Further, appellants raised the issue:

“(3) Did the District Court err in making improper conclusions

of fact at the non-discovery pleading stage under FRCP

12(b)(6) motions regarding the legality of defendants’ control

of or interest in the victim enterprise under 18 USC

§1962(b)....?”

This question was also ignored as presented, which is key.

Further, appellants raised the issue:

“(2) Did the District Court err in its application of pleading

requirements exceeding FRCP 8(a) at the court ordered

instantly fatal mid-trial point, creating prejudice to plaintiffs?”

This question is entirely valid in light of the court’s actual

administration and was completely ignored.

Therefore, it is clear upon the record that the appeal the

appellants paid for, have an absolute statutory and constitutional

right to, and have waited eighteen (18) months for simply has not

occurred. This is a clear basis for rehearing en banc, or with a new

panel |

Further, it is clear that the questions that were addressed

were completely devoid of any consideration of the appellants’

arguments, facts, and precedent. No argument that the appellants

received an actual appeal has any credibility where the “pro se”

appellants are clearly invisible to the actual process of review.

Counsel in this case below, David Adler, was absolutely

dumbfounded at the court’s tactics in dismissing. The actions were

consistent with desperation to dismiss an extremely strong case

that threatened personal and professional interests. The appellants

respectfully, but definitively detailed much of this in the record on

appeal, not limited to and including:

1. The court stated in its first opinion that the presence of the two

defendant corporations interchangeably owned by three other

62

defendants was sufficient to meet the separate entity test under

Chang v. Chen 80 F.3d 1293 (9" Cir. 1996). The court ordered

plaintiffs to focus re-pleading only on areas that were deemed

deficient, and required that the document be kept as short as

possible.

In its Second Opinion the court said: “I’ve changed my

mind,” using Simon v. Behavior Health Sciences 208 F.3d

1073 (9" Cir.) as the basis, and summarily dismissed claim 18

USC 1962(c) with prejudice, creating a pleading trap.

In its First Opinion the court said it required a statement of

how internal decision-making was done in the criminal

enterprise as if appellants had a crystal ball. This is clearly

outside FRCP 8(a) pleading rules. Thus the question presented

for review and ignored by the panel. Nonetheless, appellants

complied.

In the Second Opinion the court concluded that this

statement was not acceptable, because it was not based on

identical conduct. The court provided no basis for this again,

and further added anew that the manner of distribution of

proceeds was necessary. Appellants still cannot conceive how

any gang of organized crooks could all engage in identical

corduct and even operate. This seems asinine. (See ER 205-

215, authored by David Adler, Esq.) This also created a

pleading trap.

In the District Court’s First Opinion the court concluded that a

“pattern” was not adequately pled. In its Second Opinion the

court had no concerns about the pattern, but shifted to the issue

of “control”. The court created a brand new pleading standard

that ignores the strength of the “pattern” entirely and any

“control” that emanates from that pattern and restricts the

control to mean only ‘direct’ financial “control”. The court

ignored the direct statutory language of 18 USC §1962(b) and

binding authority of the 9" Circuit. (See ER 205-215, Motion

for Reconsideration, authored by David B. Adler, Esq.) In

addition, the District Court plainly ignored a square allegation

in the pleading stating the financial interest was illegal, and

summarily declared it as legal, making an illegal conclusion of

63

controverted fact. This was the sole basis for the dismissal of

the 18 USC §1962(b) claim.

4. The District court’s Second Opinion included a footnote as

follows:

“Plaintiffs discovered some small errors in the Second

Amended complaint and filed a corrected version.”

Judge King was well informed that the corrections were

highly technical in nature, namely accidentally placing names

of defendants under the heading of the wrong claim. si

At the end of his opinion Judge King stated:

“Although the complaint is entitled the Second

Amended Complaint (corrected) it is the fourth complaint

plaintiffs filed in this action.”

Judge King could provide no basis, under Foman or

otherwise, for not allowing re-pleading, other than to

misrepresent the number of actual pleading opportunities, in

clear contradiction of his own footnote in the same document.

(See Eminence Capital, LLC vy. Aspeon, Inc. 316 F.3d 1048.

Counting pleadings, especially in complex cases, is not a basis

for denying re-pleading any more in the 9 Circuit.)

The dismissal of this case is fraught with errors, including

illegal pleading requirements, contradictions, improper conclusions

of law, pleading traps, misrepresentation, violations of court rules,

etc., all in a manner that benefited only the defendants.

Appellants’ RICO specialist counsel found the dismissal

so bad he called it “extreme prejudice” and stated that the court’s

opinion should be “rescinded”. At this time appellants would like

to include that document in this petition as if set out in full. It can

be found at ER 205-215.

Only months-ago this court took a more solid position

under Foman, 37 U.S. 182, than the appellants have found

anywhere else in the U.S. The case is Eminence Capital, LLC vy.

Aspeon, Inc. (Jan. 2003) 316 F.3d 1048. '

It is clear now that it is not proper to merely count

pleading attempts when determining right to re-plead, especially in

complex cases. This being so, a deliberate attempt to inflate the

actual number of real pleading opportunities should be disfavored

64

in the extreme. Appellants augmented their already well supported

arguments with this new case authority well before final decision.

(See the record.) The appellate panel completely ignored it and

merely repeated the District Court’s false count of pleading

opportunities in direct contravention with known binding

precedent. The only explanation is that appellants are treated as

invisible because they cannot presently afford an attorney.

The violation of the 14" Amendment is very plain and

simple to illustrate in this case. This is how it works:

> . Case A (Eminence Capital, LLC v. Aspeon, Inc. for

example):

1. Appellants can afford counsel.

2. Complex case

3. Dismissal with prejudice; No Foman factors invoked;

Complete reliance on count of pleading opportunities in

determining futility in re-pleading.

= Appellant’s arguments fully considered

Reversal & Remand & Rebuke from 9" Circuit

Case B (Huff v. The Jackson Family):

Appellants cannot afford counsel for good reason.

Complex case

Dismissal with prejudice; No Foman factors invoked;

complete reliance on (disingenuous) count of pleading

opportunities in determining futility in re-pleading.

= Appellant’s arguments (same as above, same

authorities, etc.) completely ignored.

= Affirmed from 9” Circuit (No reason for the difference

given.)

This is an egregious example of unequal protection under

the law. This is an additional clear basis for rehearing.

Further, the appellate panel’s utter refusal to even

acknowledge the obligation to review and rule on the Orders

denying Motion for Reconsideration and Relief from. Judgment is

extremely fortuitous for the defendants and the District Court.

These motions prove the plaintiffs can re-plead to any standard the

court wants, whether legal or not.

wee

65

The court claims that because there are two defendant

corporations and not just one then it needs a more cognizable

structure to the enterprise and information on how proceeds are

distributed.

In the various motions for reconsideration and relief on the

record plaintiffs stated they are in possession of sworn testimony

of John Hallsworth, Jr. wherein he reluctantly admitted that JDH

Services, (the second corporation), has only one client, that being

L. B. Land, (the first corporation).This means that IDH Services is

merely a subsidiary of L. B. Land. This turns two corporations into

one. This also makes Robert Jackson the king pin of the whole

operation, as owner of L.B. Land and part owner of JDH Services.

Further, plaintiffs established on the record that they

possess cancelled checks where money from a fraudulent lease

flowed through JDH Services to L. B. Land. Plaintiffs also have

documents showing money going from L. B. Land to the law firm

of Bowerman & Boutin, wherewith Roderick A. Boutin received

payment.

Stunning, is it not? Most pleaders would not have this

information without discovery, which we were denied twice, but

we do. This produces overwhelming doubt that re-pleading would

be futile.

Also, plaintiffs showed how the District Court’s

conclusion that the Second Amended Complaint (corrected) did

not claim that a financial interest was acquired through

racketeering was just flat wrong. Once again the appellate panel

merely parroted the District Court’s illegal conclusion of facts,

making appellants invisible just because they cannot afford an

attorney.

One of the factors that make this case unique is the lower

court’s self-contradiction, which creates a stipulation of reversible

error on the record by the court itself. Debate on court errors is

removed where it is simply not possible for the court to be correct

in both opinions that contradict each other. Whether the court’s

first or second opinion is in error is irrelevant where plaintiffs are

damaged in either case. The court’s judgment must be reversed and

the case remanded under these circumstances. Once again, there is

66

no reference from the appellate panel to these facts. They are

simply ignored. They cannot be ignored while claiming an actual

fair review occurred.

CONCLUSION

Owing to the fact that many attorneys are paid well to file

appeals with little chance for success, at the direction of their

clients, the reversal rate indicates that a strong majority of cases

filed in this court receive a thorough, fair, and objective review.

There is no evidence of bias in favor of the lower courts. This is

commendable, especially in light of this court’s current workload.

However these positive facts only make appellants charge of

discrimination much more credible and powerful.

It is a clear violation of the 14" Amendment to assume

that appellants who either choose or are forced to exercise their

right to self-representation have automatically waived their right to

effective representation and therefore have no interest in a fair and |

legal outcome. Pro se appellants have an absolute Constitutional

right to receive exactly the same chance of reversal on questions of

clear error as those that can afford an attorney. Clearly this case

proves this is not occurring in this court, and it clearly did not

happen in this case.

That’s not due process!

That’s not equal protection!

How could it be, when this court now stands ready to force

the appellants to give $55,000 to criminals who have already taken

everything, without even reading their Briefs?

The public will see this case as just another example of the

9" Circuit favoring criminals over victims. If this is a false

perception then no one benefits except the defendants. It is good

public policy for this or any court once in a while to demonstrate to

the people who own the court that it is not being run by a bunch of

heartless bastards. All the appellants are asking for is a single fair

and thorough hearing of this case, which they have an absolute

right to demand. °

3 It should not be assumed that appellants intend to go through an

entire RICO trial without counsel.

67

Cases such as Douglas v. California 372 U.S. 353 and

Evitts v. Lucey 469 U.S. 387 deal with the issue of due process and

equal protection as it relates to an appeal.

In Douglas the court stated:

“Equal protection of the law does not exist if the kind of an

appeal a man enjoys depends on the amount of money he has.

U.S.C.A. Const. Amend. 14.”

These cases dealt with the issue of whether the state should

pay for counsel for criminal defendants.

The question appellants raise today is a different and more

serious one. Not being given a free attorney is not necessarily the

end of the road, whereas being summarily denied the right to a fair

and thorough and actual review probably is.

In light of the above facts, appellants respectfully request a

rehearing En Banc, or, in the alternative, a re-panel hearing.

Appellants contend that Judges Graber, Gould, and Aldisert are not

impartial, especially in light of the charges within this petition.

Appellants further request oral argument, and that this matter be

given priority due to the amount of time already invested.

Respectfully submitted this 14" day of October 2003.

By:

Reggie D. Huff, Pro se

By:

Lisa G. Huff, Pro se

_ ce or

68

Reggie D. Huff

Lisa G. Huff

PO Box 4351

Warren, OH 44482

Phone: 330-372-6615

Fax: 330-372-6316

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

U. S. Court of Appeals Docket Number: 02-35176

Lower Court Docket Number: CV-01-447 KI

ACRO-TECH, INC; an ) AFFIDAVIT IN SUPPORT

Oregon Corp., ) OF: PETITION TO

Plaintiff ) APPOINT INDEPENDENT

are COMMITTEE TO

and ) | INVESTIGATE CHARGES

OF ILLEGAL

egal dina — ie DISCRIMINATION UPON

CLASS OF PEOPLE BY

Plaintiffs — Appellants, _) THE 9™ CIRCUIT,

VS. ) AND

THE ROBERT JACKSON ) PETITION TO SUSPEND

FAMILY TRUST; L.B. ) | JUDGES GRABER, GOULD,

LAND, an Oregon Corp; __) AND ALDISERT PENDING

JDH SERVICES INC.,an ) DISPOSITION OF

Oregon Corp.; JOHN D. i+) CHARGES

HALLSWORTH, JR. +)

ROBERT K.JACKSON; ) AND/OR

LUANN JACKSON; ) PETITION FOR

RODERICK A. BOUTIN, ) | REHEARING

)

Defendants — Appellees. (EN BANC REQUESTED)

69

F State of Ohio }

} ss.

County of Trumbull }

I, Reggie D. Huff, being first duly sworn, do depose and say that:

1. Iam an appellant in the above case.

2. I authored the PETITION TO APPOINT INDEPENDENT

COMMITTEE TO INVESTIGATE CHARGES OF ILLEGAL

DISCRIMINATION UPON CLASS OF PEOPLE BY THE 9™

CIRCUIT, AND PETITION TO SUSPEND JUDGES GRABER,

GOULD, AND ALDISERT PENDING DISPOSITION OF CHARGES

AND/OR PETITION FOR REHEARING with the assistance of co-

appellant Lisa G. Huff. We alone are responsible for it.

3. All of the facts and assertions of facts contained within the said

petition are true to the best of my knowledge, and are

: presented for a good and proper purpose, and not for needless

delay.

The above is true as I verily believe.

ee Pe UT SY Pe pce eee, oY

Reggie D. Huff

Subscribed and sworn to before me this day of 2003.

BRR SS STR SES

NOTARY PUBLIC FOR OHIO

My commission expires:

RD RI IT ee BNes eae

AA, Te I EN DS |

70

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ACRO-TECH, INC., an Oregon Corp.,

Plaintiff,

and,

REGGIE D. HUFF and LISA G. HUFF,

Plaintiffs — Appellants,

Vv.

THE ROBERT JACKSON FAMILY

TRUST; LB LAND, INC., an Oregon

Corp.; JOH SERVICES INC., an Oregon

Corp., JOHN D. HALLSWORTH, JR.;

ROBERT K. JACKSON; LUANN

JACKSON; and RODERICK BOUTIN,

Defendants — Appellees.

No. 02-35176

D.C. No. CV-01-447-KI

ORDER

FILED

OCT 24 2003

CATHY A.

CATTERSON,

CLERK

U.S. COURT OF

APPEALS

Before: ALDERSERT,* GRABER, and GOULD, Circuit Judges

The “Petition to Appoint Independent Committee to

Investigate Charges of Illegal Discrimination Upon Class of People

by the 9" Circuit, and Petition to Suspend Judges Graber, Gould,

and [Aldisert] Pending Disposition of Charges and/or Petition for

Rehearing (En Banc Requested)” received October 16, 2003, is

ordered to be filed.

* The Honorable Ruggero J. Aldersert, Senior Judge,

United States Court of Appeals for the Third Circuit, sitting by

designation.

71

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ACRO-TECH, INC., an Oregon Corp.,

Plaintiff,

and,

REGGIE D. HUFF and LISA G. HUFF,

Plaintiffs — Appellants,

v.

THE ROBERT JACKSON FAMILY

TRUST; LB LAND, INC., an Oregon

Corp.; JOH SERVICES INC., an Oregon

Corp., JOHN D. HALLSWORTH, JR.;

ROBERT K. JACKSON; LUANN

JACKSON; and RODERICK BOUTIN,

Defendants — Appellees.

No. 02-35176

D.C. No. CV-01-447-KI

ORDER

FILED

NOV 24 2003

CATHY A.

CATTERSON,

CLERK

U.S. COURT OF

APPEALS

Before: ALDERSERT,* GRABER, and GOULD, Circuit Judges ~

We construe the Petition filed October 16, 2003

(“Petition”), to be, in part, a petition for panel rehearing and

petition for rehearing en banc.

The memorandum disposition filed September 30, 2003,

is amended. With the filing of the amended memorandum

disposition contemporaneously with this order, the panel has voted

to deny the petition for panel rehearing. Judges Graber and Gould

* The Honorable Ruggero J. Aldersert, Senior Judge,

United States Court of Appeals for the Third Circuit, sitting by

designation.

72

have voted to deny the petition for rehearing en banc, and Judge

Aldersert has so recommended.

The full court has been advised of the petition for

rehearing en banc and no judge of the court has requested a vote on

it.

The petition for panel rehearing and petition for rehearing

en banc are DENIED. No further petitions for rehearing or

rehearing en banc may be filed.

We also construe the Petition, to be, in part, a motion to

recuse the members of the panel. So construed, the motion is

DENIED.

Finally, we construe the Petition to be, in part, a complaint

of judicial misconduct. So construed, the complaint has been

forwarded to the Clerk of the Court for such further proceedings as

may be appropriate.

73

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ACRO-TECH, INC., an Oregon Corp.,

Plaintiff,

and,

REGGIE D. HUFF and LISA G. HUFF,

Plaintiffs — Appellants,

v.

THE ROBERT JACKSON FAMILY

TRUST; LB LAND, INC., an Oregon

Corp.; JOH SERVICES INC., an Oregon

Corp., JOHN D. HALLSWORTH, JR.;

ROBERT K. JACKSON; LUANN

JACKSON; and RODERICK BOUTIN,

Defendants — Appellees.

No. 02-35176

D.C. No. CV-01-447-KI

AMENDED

MEMORANDUM

FILED

NOV 24 2003

CATHY A.

CATTERSON,

CLERK

U.S. COURT OF

~ APPEALS

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

*’ This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as may be

provided by Ninth Circuit Rule 36-3.

74

Submitted September 12, 2003**

Portland, Oregon

Before: ALDISERT,*** GRABER, and GOULD, Circuit Judges. |

Plaintiffs Reggie and Lisa Huff appeal the district court’s

denial of their motion to reconsider the dismissal of their state and

federal RICO actions against Defendants. We review for abuse of

discretion a district court’s denial of a motion to reconsider an

order granting summary judgment. Sch. Dist. No. 1J, Multnomah

County, Or. V. AC&S, Inc., 5 F.3d 1255, 1262 (9° Cir. 1993).

Reconsideration is appropriate if the district court: (1) is presented

with newly discovered evidence; (2) committed clear error or the

initial decision was manifestly unjust; or (3) if there is an

intervening change in controlling law. Id. At 1263. The first and

third grounds are inapplicable in this case. We therefore consider

only whether the district court committed clear error and whether

its decision was manifestly unjust.

1. The district court did not err in dismissing Plaintiffs’

18 U.S.C. § 1962(c) RICO and Oregon Revised Statute (“ORS”) §

166.720(3) ORICO claims. Reviewing de novo, we agree with the

district court’s holding that Plaintiffs’ Second Amended Complaint

did not adequately plead “enterprise.”

Plaintiffs alleged that Hallsworth and Robert Jackson

made decisions together and worked cooperatively. This allegation

is one of conspiracy — it does not satisfy the standard that an

enterprise must, “[a]t minimum, ... have some sort of structure ...

for the making of decision s and some mechanisms for controlling

and directing the affairs of the group on an on-going, rather than an

ad hoc, basis.” Simon v. Value Behavioral Health, Inc., 208 F.3d

1073, 1083 (9" Cir. 2000) (internal quotation marks omitted).

** This panel unanimously finds this case suitable for

decision without oral argument. Fed. R. App. P. 34(a)(2).

*** The Honorable Ruggero J. Aldisert, Senior Judge,

United States Court of Appeals for the Third Circuit, sitting by

designation.

75

Plaintiffs’ allegation that Boutin exercised control over the

enterprise is also inadequate. Boutin was not a member of the

alleged enterprise. Further, it is unclear how Boutin could have

“exercised control” over the enterprise via “consultation and

advice” to Jackson and Hallsworth, who themselves were alleged

to have “exercised control.”

Including two corporations in the enterprise does not per

se satisfy the requirement that the enterprise be a separate entity

apart from the pattern of racketeering activity in which it engages.

Chang v. Chen, 80 F.3d 1293, 1300 (9" Cir. 1996): see also Simon,

208 F.3d at 1083-84. In this case, Plaintiffs failed to allege either

that a system of authority existed in a separate enterprise or that

Defendants utilized a structure apart from the predicate acts to

distribute the proceeds of the racketeering activity.

Oregon’s RICO is modeled after the federal statute.

Federal cases interpreting the federal statute are persuasive in

interpreting the parallel Oregon provision. State v. Blossom, 744

P.2d 281, 283 (Or. Ct. App. 1987). ORS § 166.720(3) parallels §

1962(c). Because the district court correctly dismissed Plaintiffs’ §

1962(c) claim, the court also correctly dismissed Plaintiffs’ ORS §

166.720)3) claim.

2. The district court did not err in dismissing Plaintiffs’

18 U.S.C. § 1962(b) RICO and ORS § 166.720(2) ORICO claims.

The district court erred in its application of the “control” standard.

See Ikuno v. Yip, 912 F.2d 306, 310 (9" Cir. 1990). Nevertheless,

Plaintiffs failed to adequately allege that Defendants gained control

of Acro-Tech through racketeering activity. We therefore affirm

the dismissal on this ground supported by the record. See Keyser v.

Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9" Cir.

2001).

Plaintiffs allege that Defendants gained control of Acro-

Tech through three courses of conduct. F irst, Piaintiffs allege that

Defendants exercised control over Acro-Tech as the owner of

$50,000 in stock. However, as the district court noted, the stock

purchase was legal, and therefore did not involve the acquiring of

control through racketeering activity.

76

Second, Plaintiffs allege that Defendants sought to gain

control of Acro-Tech as lessors on the lease for Acro-Tech’s office

space. Third, Plaintiffs allege that Defendants sought to gain

control of Acro-Tech by hiring Hallsworth as accountant and

bookkeeper. Defendants allege that the business lease and

accounting services were induced by fraud and, thus, represent an

attempt to gain control through racketeering activity. Plaintiffs’

allegations of fraud, however, are general and do not provide the

necessary particularity. See Advocacy Org. for Patients &

Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 322 (6” Cir.

1999). Therefore, Plaintiffs failed to adequately allege that

Defendants gained control of Acro-Tech through racketeering

activity. For the same reasons, Plaintiffs failed to adequately plead

an ORS § 166.720(2) claim, which tracks § 1962(b).

3. The district court did not abuse its discretion when it

denied Plaintiffs’ leave to amend their § 1962(c) claim. In this

case, two factors support the court’s denial of leave to amend:

futility of amendment and the fact that Plaintiffs previously

amended the complaint. See Allen v. City of Beverly Hills, 911 F

2.d 367, 373 co" Cir. 1990). The district court noted that Plaintiffs’

Second Amended Complaint (Corrected) was in fact the fourth

complaint Plaintiffs filed in this action. Plaintiffs were represented

by counsel when they filed their Second Amended Complaint, and

that filing followed the district court’s September 2001 order,

which had explained in detail what needed to be pleaded.

4. The district court did not abuse its discretion in

declining jurisdiction over Plaintiffs’ remaining non-RICO state-

law claims. 28 U.S.C. § 1367(c\3).

5. The district court did not abuse its discretion in its

award of costs and fees to Defendants. Defendants were the

prevailing party, and the district court therefore had the discretion

to award fees under Federal Rule of Civil Procedure 54(d) and

ORS § 166.725(14).

The district court awarded Defendants Hallsworth and

JDH Services fees in the amount of $20,000; Defendant Boutin

$15,000; and Defendants Luann and Robert K. Jackson, LB Land,

and the Family Trust $20,000. In the light of the number of

77

motions, orders and amended complaints filed in this action, a total

award of fees of $55,000 was reasonable.

6. Because the district court’s orders granting summary

judgment and attorneys’ fees reached the correct outcome under

the controlling law, the district court did not abuse its discretion

when it denied Plaintiffs’ motion for reconsideration.

AFFIRMED.

78

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ACRO-TECH, INC., an Oregon Corp., | No. 02-35176

Plaintiff, D.C. No. CV-01-447-KI

and,

REGGIE D. HUFF and LISA G. HUFF,| ORDER

Plaintiffs — Appellants,

m FILED

THE ROBERT JACKSON FAMILY ye apy

TRUST; LB LAND, INC., an Oregon CATTERSON

Corp.; JDH SERVICES INC., an Oregon CLERK _

Corp., JOHN D. HALLSWORTH, JR.; U.S. COURT OF

ROBERT K. JACKSON; LUANN APPEALS

JACKSON; and RODERICK BOUTIN,

Defendants — Appellees.

Before: ALDERSERT,* GRABER, and GOULD, Circuit Judges

Appellants’ “Motion to Recall Mandate” is DENIED.

Appellants’ “(1) Motion to Clarify ‘Amended

Memorandum’ and (2) Motion to Clarify ‘Judgment’ and (3)

Motion to Reconsider Order Denying Recusal of Panel or (4)

Motion to Return Court Fee” received December 24, 2003, is

construed as a motion for leave to file and is DENIED. The

mandate in this case has issued.

We also construe the motions to be, in part, a complaint of

judicial misconduct. So construed, the complaint has been

forwarded to the Clerk of the Court for such further proceedings as

may be appropriate. .

* The Honorable Ruggero J. Aldersert, Senior Judge,

United States Court of Appeals for the Third Circuit, sitting by

designation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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