Petition for Writ of Certiorari — Flinn v. Plummer

0) “Froese

@5°6 39001 16 oy

‘ OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

THE IN RE GENE FLINN, ESQ.

FEDERAL CASE. NO. 94-5101

GENE FLINN, ESQ., et al.,

Petitioners,

vV.

LAWRENCE PLUMMER, a non certified

opponent designated by the

Circuit as Appellee

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THE GENE FLINNS/ Unit

In Proper Persons

5100 SW 87 Avenue

(Galloway Road)

Miami, Florida 33165

(305) 274-0033

(305) 852-8100 (Keys)

September 304 995 2 or

QUESTIONS PRESENTED

Whether the U. S. District Courts

are constitutionally (or statutorily)

empowered to authorize Standing of

an independent counsel to _ prosecute

cases.

Whether a non appearance

‘appearing’ counsel who lacks a

Presidential appointment in becoming

the District's U. S. Attorney and

who fails to comply with such

established Rules and statutory

requirements for an otherwise

identifiable Standing nullifies a

District Court conducted In _ Re

proceeding disbarring Petitioner.

LIST OF PARTIES

Contrary to Constitutional Due

Process, there has never existed

a Federal Complaint, nor any other

document informing Petitioner of

(1) who made the charges and (2)

of what charges were being lodged

against him as an attorney enrolled

in the U. S. Judicial System.

The Petitioner stands as_ the

only Party to these so described

In Re proceedings.

The Respondent, LAWRENCE PLUMMER,

is represented by a LAWRENCE KAINE,

ESQ., though never a party, as more

fully described in the requested

Writ stated hereafter.

ii

Se ee ee Ee

TABLE OF CONTENTS

QUESTIONS PRESENTED i

LIST OF PARTIES ii

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES Vv

OPINION BELOW 1

JURISDICTION 1

PROLOGUE TO STATEMENT OF THE CASE 3

PRECIPITATING EVENTS AND

STATEMENT OF CASE 6

REASONS FOR GRANTING WRIT

AND ARGUMENT 9

CONCLUSION 13

APPENDIX 19

THE ELEVENTH CIRCUIT GRANTED

MOTION FOR ATTORNEYS’ FEES

AND REMANDED TO DISTRICT COURT

APPELLANT'S REQUEST FOR FEES 19

MEMORANDUM DATED AUGUST 14,

1995 FROM ELEVENTH CIRCUIT

COURT OF APPEALS 21

iii

iv

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

Fifth Amendment,

Due Process Clause 2

Sixth Amendment - Confrontation 2

Fourteenth Amendment - Underlying

Case 2

STATUTES

18 U.S.C. §1951 et seq. 5

18 U.S.C. §1962(c) and (d) 2, 30

28 U.S.C. §546 12

28 U.S.C. §2101(c) 2

28 U.S.C. §2101(d) 2

FEDERAL RULES OF CIVIL PROCEDURE

Rule 24 11

FEDERAL RULES OF APPELLATE PROCEDURE

Rule 40(a) 21

LOCAL RULES FOR THE SOUTHERN

DISTRICT OF FLORIDA

Rule III 4

CASES

GENE FLINN V. ESM Government

Securities, Inc., Case

Number 84-0014 7

New York Chinese TV Programs,

Inc. v. U.E. Enterprises, 153

F.R.D. 69, 71 (S.D. N.Y. 1994) 10

New York News, Inc. v. Kheel,

972 F.2d 482 (2nd Cir. 1992 10

United States v. Busher,

817 F.2d 1409, 1412 (9th

Cir. 1987) 14

United States v. Wunsch,

54 F.3d 579 (9th Cir. 1995) 10

United States Securities &

Exchange Commission v.

ESM Government Securities,

Inc., 645 F.2d 310 (5th Cir.

1981) 7

vi

The Petitioners pray that a

Writ of Certiorari issue to review

the judgement and opinion of _ the

United States Court of Appeals for

the Eleventh Circuit entered in the

above entitled proceeding August

7, 1995, and the action taken by

this Court on August 14, 1995 rejecting

Petitioner's right to file a response,

thereto, upon rehearing.

OPINION BELOW

The Opinion of the Court of

Appeals for the Eleventh Circuit

Court and the subsequently issued

Court Memorandum are unpublished

and is reprinted in the appendix

hereto.

JURISDICTION

This Court has jurisdiction

based upon constitutional questions

presented pursuant to the _ Fifth,

Sixth Amendments as applied to _ the

State of Florida initiated action

through the Fourteenth Amendment

to the United States Constitution,

and the Federal Rules of Civil and

Appellate Procedure. This Petition

for Writ of Certiorari is filed under

the provisions of 28 U.S.C. 2101(c)

and (d). The Petition has been filed

within the time allowed by law.

PROLOGUE TO STATEMENT

OF THE CASE

Over Memorial Day weekend of

1990, the psychiatrist who had

testified just a year before to the

Referee that Petitioner suffers from

irreversible brain damage, was found

dead with a bullet in the brain.

Dr. Arthur Stillman had agreed for

‘flipping’ to becoming the Star Witness

before the impaneled Federal Grand

Jury investigating Operation ‘Court

Broom ' involving those who had engaged

in an [18 U.S.C.] Section 1962(c)

racketeering enterprise to

eliminate/liquidate, among others,

the Flinns and other’ enforcement

personnel, including a key Government

informant. Stillman had been shot

with a 38 calibre, and what had been

stuffed in his pocket obviously as

a pro forma Mafia warning to. the

investigator, William Santner, and

to Petitioner was a newspaper article

on the Bar Grievance pertaining to

"Gene Flinn - Former’ Legislator".

This was a jolt to the Bureau

and the reason for one (1) State

Judge going free. Moreover, Florida

Bar Counsel, Paul Gross, had exparteed

the Referee informing him of _ the

probe of State officials on March

22, 1989 in: a transcript, beginning

"Your Honor, I don't know if you

want this on the _ Record”. There

is where it ceases. The Referee

rules there exist no corruption prior

to that trial.

Thereafter Petitioner sought

the issuance of federal subpoenas,

as the Respondent in 1989 had been

excused from testifying by the Referee.

This request has been_ repeatedly

denied and, on one occasion, by the

Circuit's Chief Judge and as _ late

as October 12, 1994. As a consequence,

the Petitioners suffer further setbacks

in their top notch investigator being

gunned down; Coordinator Patricia

Marshall Smith being shot at on June

7; 1993, and, additionally, for

this District's (then) U. Ss.

Attorney, Dexter Lehtinen, refusing

to prosecute two (2) ‘Hobbs’ cases

[18 U.S.C. §1951, et seq.] prepared

for presentment by the ATF/Bureau

in 1989, which ‘alert’ to the

widespread drug crime/corruption

in the tri-state area was sounded

by Petitioner, as stenographically

recorded, in testifying before a

U. S. Magistrate Judge, on June

25, 1990.

5

PRECIPITATING EVENTS AND

STATEMENT OF CASE

The problem of dealing with

Petitioner up front is that he lacks

a criminal record, even a_ police

blotter notation. Further, such

circumstances are exacerbated by

his [their] recommending’ successes.

The Flinns were the Florida managers

and a security attache’ to LBJ, and

"Bobby' Kennedy in 1960. Here,

Petitioner, joined by others,

recommends Charles ‘'Bud' Stack to

fill the vacancy created by a Circuit

Judge taking Senior Status. The

Florida Bar which had its own groomed

candidate was ignored. The President

nominated Stack for the Eleventh.

In what would be termed as a

move towards a ‘full circle

exoneration’, Petitioner attempts

to take Respondent 's deposition,

who obtains a protective order, and

proceeds to relitigate the State

entered grievance Order.

Petitioner loses every ruling

and each of the appeals, in a replay

from the dire country-wide collapses

threatening the stability of the

national banking system surfacing

in the mid ‘80s; namely, those

precipitated by a firm of attorneys

called Arky, Freed (Florida, Ohio,

and Tennessee), by Marvin L. Warner

(Florida and Ohio), and Jacob F.

Butcher and a brother, C.H. (Tennessee

and Arkansas). Petitioner (then)

aligned with Commissioner Gray of

the United States Securities and

Exchange Commission both lose every

District Court ruling, and the SEC

loses before the Circuit in Flinn

v. ESM, Case No. 84-0014 (1984),

and SEC v. ESM, 645 F.2d

310 (Sth Cie. 198%). That series

of decisions/opinions cost the _ U.

S. Taxpayers Seven Hundred Million;

this series - if left unmasked will

predictably surpass the One (1) Billion

Dollar mark for the unjust enrichment

of three (3) unsavory segments of

society.

— ac

~~”

REASON FOR GRANTING

WRIT AND ARGUMENT

The Bill of Rights issues stemming

from the State unwarranted interference

obstructing Federal Constabulary

matters are here presented as being

two fold. First, a rejection of

comity and secondly, an interloper's

‘presence’ in the case as a sequel.

A Judge, after a hearing, finds the

Petitioner to be in compliance with

the District Court's issued Rule

to Show Cause, following Local Rule

Ill. Standing is examined and

Petitioner is requalified to continue

practicing. The decision was _ based

upon "a miscarriage of Justice” by

the State authorities. As a result,

the Respondent ‘appears’ with the

avowed objective of prosecuting the

Petitioner to reverse that ruling

but clearly lacks standing. Further,

by the failing to file a formal notice

of appearance, as always required,

Respondent's attorney avoids any

disciplinary proceedings and for

his client (Plummer) any problems

inherent in a service of process.

a discovery deposition, and most

assuredly the lodging of a

counterclaim. Compare: U.S. v. Wunsch,

54 F.3d 579 (9th Cir. 1995).

Therefore, Respondent and his attorney

elude any definition for a defined

legal category, or right of action.

Respondent in a cover-up never

files an application with the three

(3) Judge Panel, pursuant Rule 24,

Fed.R.Civ.P., to reveal this ulterior

purpose. See, also, New York Chinese

TV Programs, Inc. v. U.E. Enterprises.

153 F.R.D. 69, 71 (S.D. N.Y. 1994);

New York News, Inc. v. Kheel, 972

F.2d 482 (2nd Cir. 1992). With these

10

ee mT TT eT |

contrivances in place, the Chair

Judge provided Respondent, who is

there without portfolio, e2 (In Re)

forum for engaging in _ protracted

litigation over a four (4) years

span. Here the interloper further

becomes the de facto U.S. Attorney.

In such recognition, Respondent is

authorized to utilize all of AUSA

tools, including drafting and _ the

mailing out of official notices which

the Court customarily does and to

petition the Chair Judge to enter

a further Rule to Show Cause to trigger

a recommendation at this juncture

adverse to Petitioner by the Committee.

By statute referencing an

inferior officer', only the District's

U.S. Attorney may prosecute accused

individuals in a District Court.

The one exception being the Circuit

Court of Appeals for the District

11

of Columbia which is extraordinarily

empowered by Congress to appoint

an Independent Counsel upon request

of the Attorney General. One such

outside prosecutor was not- asked

for here, and Respondent's’ Lawyer

is not a former Circuit Court of

Appeals Judge. Moreover, there have

been two (2) [28 U.S.C.§ 546] ‘acting'

U.S. Attorneys occupying the office

for this (Southern) District during

this period frame. Neither of the

interim serving Attorneys, nor. the

(now) permanent replacement have

sought permission leading to leave

for intervention, and the’ reason

being is that their lawful role had

been usurped by Respondent. The

fallout is Petitioner relinquishes

a Public Sector’ I1.R.C. 501(c) (6)

because disbarment will be the first

question of him upon cross examination.

12

CONCLUSION

These sequel events akin to

what had taken place on the State

level constitute a second miscarriage

of Justice.

In the absence of a Presidential

appointment, no amount of exercised

authority by a District Court Judge

will create the position of independent

counsel for the prosecution of persons

sought to be eliminated from_ the

legal/investigative (public) sector.

This aligned (or integrated for

services) enforcement officer has

demonstrated expertise’ in Titles

18 and 26 matters, having received

kudos, and as disclosed here _ for

the first time in balancing competing

interests. One such is, infra.

Early on A Saturday

evening, Flinn [a Title

26 Specialist, who has

13

“ Bi.

since nailed James Robert

Gailey, this District's

Public Defender, for an

out of state Grand Jury

indictment for defrauding

the Atlanta IRS, and _ the

Administrative Offices

of the U. S. Courts grounded

upon a United States vy.

Busher, 817 F.2d 1409,

1412 .. (9th Cir. 1987)

conducted field probe],

was in attendance at a

meeting in the Depository

Room located in the _ U.

s. Attorney's Office

(Stanley Marcus/Leon Kelner)

at 155 South Miami Avenue.

Petitioner is shown documents

and thereupon began reviewing

evidence with CID agents

in the 36 Million Dollar

14

tax fraud case which trial

was to begin the following

week. Flinn was assigned

to seek out defense attorney

Barry Garber (now aU.

Ss. Magistrate Judge),

whom he finally locates

seated in a restaurant

on the corner of WNorth

Kendall Drive and SW /78

Avenue. He interrupts

his former residential

neighbor's dinner to extol

the strong Government case.

The Defendant shortly

thereafter ‘cops a plea’

sparing District Judge

Lenore Nesbitt and the

AUSA Team a six (6) week

long trial. Because of

Petitioner, et al., closing

the deal, the U. Ss.

15

Taxpayers were benefited

through a recoupment’. of

millions in found funds,

fines, and forfeitures.

Upon closing with Respondent's

mission completed, another member

of the [18 U.S.C.] Section 1962(c)

and (d) Enterprise takes up the matter

with the Chief Judge, who, without

a further hearing, disbars Petitioner

on October 24, 1994. Consequently,

the targeted Cali (cartels), the

targeted Foreign based/trained

terrorists and the (probed)

subject/targeted Tax Cheats. prevail

in the second round through a

perpetrated ‘reverse targeting’ of

Petitioner/Unit.

WHEREFORE, the case and all

orders accompanying, including denials

of subpoenas and for disbarment should

be reversed, and remanded with

16

instructions directed to fees and

costs entitlements and, further,

to reinstate Petitioner for legal

practice retroactively.

It submittgd this DY

tember, 95.

Le

NE FLINN, Lead Petitioner

100 SW 87 Avenue (Galloway Road)

Miami, Florida 33165

(305) 274-0033

(305) 852-8100

17

18

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

United States Court of Appeals

Eleventh Circuit

Docket NO. 94-5101

D.C. No. 91-00868-CIV-CCA

IN RE:

GENE FLINN,

Petitioner.

On Appeal from the Umited

States District Court for

the Southern District of Florida

Order Entered

August 7, 1995

BEFORE: TJOFLAT, Chief Judge, BIRCH

and DUBINA, Circuit Judges.

BY THE COURT:

Movant's motion for attorneys

19

fees is granted as to entitlement.

This matter is REMANDED to the district

court for a hearing on the amount

of fees to be awarded to Movant.

20

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

Miguel J. Cortez In Replying

Clerk Give Number of

Case And Names

of Parties

AUGUST 14, 1995

MEMORANDUM TO ADDRESSEES:

RE: 94-5101 Flinn, Gene, IN Re:

DC DKT NO.: 91-00868 CIV-CCA

The following action has been taken

in the referenced case:

Sincerely,

/s/ Miguel J. Cortez

MIGUEL J. CORTEZ,

Clerk

Reply To: Cecelia Williams (404)

331-3833

*The attached briefs are being returned

21

to you unfiled by this court. Please

note that case number 94-5101 was

closed on 5/25/95.

22