Opposition Brief — Anderson v. Mississippi

Supreme Court, U.S

eee ae ee

"ge OCT SO 1996

\o)

Case Number: 96-21 —

SUPREME COURT OF THE UNITED STATES

October, 1996-1997 Term

Franklin V. Anderson, Petitioner, Pro Se

Vv.

State of Mississippi, The Mississippi Bar

a.k.a. The Mississippi State Bar

and South Mississippi Electric Power

Association, a federally financed

electric cooperative,

Respondents

Petition for Writ of Certiorari to the

Supreme Court of Mississippi

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

James N. Compton

Attorney for South Mississippi

Electric Power Association

COMPTON, CROWELL & HEWITT, P.L.L.C.

Post Office Drawer 1937

Biloxi, MS 39533-1937

(601) 374-4940

QUESTIONS PRESENTED

(1) Is there jurisdiction for this

Court's intervention in Mississippi's

attorney disciplinary process regarding

suits against complaining parties?

(2) Is Petitioner a "federal

witness", “officer" or "juror" subject to

the protection of 18 U.S.C. Section 1503?

TABLE OF CONTENTS

Table of Authorities

ConstetueszOnak Ss 28 eee N Ses

Statutory 2 >. >. _ 7 o > . * 7 > 7 *

ROGULECOEY as ae we hae ee

Cases 7 7 7. . 7 . . ” . . . . o . .

Reference to Published Opinions ...

Statement of JuriseGiction.« as <« 6%

Full Relevant Text

Statutory Provisions ...«es+s «se.

Reply to Petitioner's Statement

of Facts and Procedural Background .

Argument as to Jurisdiction .....

COnGLUBLOR <2 ees kee ee ate a

Appendix

Verified Complaint in U.S. District

Court for Northern District of

Alabama, file stamped 1-11-93 ...

Order, U.S. District Court,

Northern District of Alabama,

entered 3-11-93 - . . . . . . * . .

Excerpts from Deposition of

Franklin V. Anderson on 6-15-93 ..

TABLE OF AUTHORITIES

CONSTITUTIONAL AUTHORITIES

Mississippi Constitution

B@Ction 45 «se evuves

Mississippi Constitution

hection 19] ’ ‘ ‘ ‘ ; ;

U,8&, Constitution, Amendment

U.,8&. Constitution, Amendment

U.&. Constitution, Amendment

U.S. Constitution, Amendment

STATUTORY AUTHORITIES

43 U.S.C. § 1. 2. 2 ec c

18 U.8.C. § 1001 . ,

16 U.8.C. © 134d 1

18 U.8.C, 4 1343 . ; ‘

Conetitut Lon, Amendment

4

(1890)

App 26

(LH90)

» App ii

App

App 44

App 4

App 5

App 23

14. App 23

« « App il

App 28

App 33

App ij4

» App 8-9

» « ADD 2

App 11

App 22

App 23

App 24

App 27

App 28

App 33

» App 2

18

18

18

18

18

18

18

28

28

28

28

26

42

U.S.C.

U,8.€,

U,.&.C,

U.8.C.

U.S.C.

U.S.C,

U.8.C,

U.8.c,

U.8.c,

U.8.C,

U.8.C,

U.8.C,

U.8.C,

sa @ &s & S&S S&F BD GD WG

hOGOH 2) ae ea

1503 ’ ‘ ‘ ‘ *

1505 , ’ , ’ *

1951 . * * * * *

Svea. *e- 60.6: 6

1964 .. 2 2

1964(c) . wo

1257(3) . so

L33k(a) wwe

L343 (a) (1) (4)

L391L(e) . wo

1404(a) . « os

Beee. 66 be 4

id

G4 026.0... §. 286548) vce ss 0 so ee ADD 3

App 34

42 U.6.C. @ 19606 ..«.« « « « « App 36

Miss, Code Anfis § 79189 , « « App

App

=

KEGULATONY AUTHORT TIES

Alabama Rules of Civil Proeedure

Rule 4,2 TEE eg! Bay fee! Sav Ae, cee pe Oe fee laa App 4

Alabama Rules of Civil Procedure

Rule 4,.2(aj (2) (A)(B) . « «© «© « « App 3

Alabama Rules of Civil Procedure

Rule 4,2(a)(2)(A)(B)(D) ... . . App 3

Alabama Rules of Civil Procedure

Rule 4.2(a)(2)(D) ...... . App 3-4

Alabama Rules of Civil Procedure

WAG 4 ce UE). UEP: 2 a: os fe fe cei wie ce 6 AD 3

DR 1-103, Miss. Code of

Prof, Reap, . . . . . . . a . . App 19

DR 58107, Miaa, Code of

PYOE. R@SP. »« + «© » © » 8 0 6 ob) = 6ADp 10

DR 7el02, Miee, Code of

Prof. ROSP. « » » +» © © © © © ob) «App 10

DR 7el02(b) (1) (2), Mieea, Code

Of Prof. ReOp . « « © 8 ot App 1011]

DR 7-109, Mise, Code of

Prot. ROSpP. ». « » « «© © © © © «© App 10

144

BG. 5-18 (MNiss.} 2. ss se © ss) RO FG

Federal Rules of Civil Procedure,

Rule 416) (13) « 6 6's el toe. Sees

Miss. Rules of Evidence

Rules. $01, 502 .'s «0 «0 « «0 6 » ABD 49

Supreme Court Rules of

the United States, Rule 15... . 1

CASES

Ke ity v. Mississippi Valley Gas Co.

3 oO. (Miss. 1981)... App 14

Layne & Bowler Corp. v. Western

Well Works, Inc., (1923), 43

S. Ct. 422, 423-424, 261 U.S.

387, 392- -393, 67 L.Ed. Cee we Ne OTE 6.7

Mainelli v. Providence Journal Co.,

207 F. Supp. ial i cigtaterecdoiae MS asda

2 t.a8 3 ; asia ‘an

O'Dell v. Humble Oil & Refining Co.,

301 FodG C43 CLC ChEs LPOS) 36 tere eS

Sandy Fork v. SMEPA, Civil Action

No. S6=138 ee eee ee Co} ee ee

App 20

App 23

United States v. Griffin,

, CA 10 Kan.), 463 F.2d 177,

cert.den. (1972), 409 U.S. 988,

94°3.86.28 296; ‘63 3 .0e0 S46. GPE ES

REFERENCE TO PUBLISHED OPINIONS

To the Respondent's knowledge,

information and belief there have been no

published opinions in this case. The

Clerk of the Mississippi Supreme Court

has stated to Petitioner there will be no

publication in the Southern 2d Reporter,

which is the official reporter, for the

opinion included herein.

STATEMENT OF JURISDICTION

There is no jurisdiction in this

Court to review the decision of the

Mississippi Supreme Court that, under the

facts in this case, Petitioner may not

bring a tort claim against a party who

made a bar complaint against him.

STATUTORY PROVISIONS

18 U.S.C. § 1503 (as amended 9-13-94).

Influencing or injuring officer or

uror genera °

(set out in Petitioner's Petition for

Writ of Certiorari)

28 U.S.C. § 1257(3) (as amended 6-27-88).

State courts; appeal; certiorari.

Final judgments or decrees rendered

by the highest court of a State in which

a decision could be had, may be reviewed

by the Supreme Court as follows:

(3) By writ of certiorari, where the

validity of a treaty or statute of the

United States is drawn in question or

where the validity of a State statute is

drawn in question on the ground of its

being repugnant to the Constitution,

treaties or laws of the United States, or

where any title, right, privilege or

immunity is specially set up or claimed

under the Constitution, treaties or

statutes of, or commission held or

authority exercised under, the United

States.

vi

Reply to Petitioner's Statement of Facts

and Procedural Background

Respondent, South Mississippi

Electric Power Association (hereinafter

referred to as "SMEPA"), pursuant to Rule

15 of the Rules of the Supreme Court of

the United States, identifies the

following factual misstatements or

omissions of material facts. Petitioner,

while employed as an attorney at SMEPA,

had no responsibility for negotiating or

supervision of SMEPA's fuel purchases,

including the contract with Sandy Fork

Mining. Nonetheless, Petitioner and

internal auditor Dennis Johnson widely

dispensed their interpretations as to the

legality and fairness of the coal

contract. To address the issues raised

by Petitioner and Johnson, SMEPA's board

of directors hired an audit firm in

Lexington, Kentucky, with experience in

coal contracts. Later, counsel for

Respondent SMEPA was hired to review the

legal issues. General Manager George

Taylor retired; Henry Thomas replaced him.

It was the opinion of the Kentucky

auditing firm, and special counsel for

SMEPA, that the issues raised by

Petitioner and Johnson were not legally

or factually valid. The audit firm did

discover other issues relating to Sandy

Fork's mining of SMEPA's coal property,

and contract overcharges, not identified

by Anderson or Johnson. Unhappy that his

allegations were not given the attention

he felt they merited, Johnson requested a

meeting with a committee of the board of

directors. After reviewing Johnson's

allegations, the auditor's findings, and

the contract, SMEPA's board approved

filing suit based on the auditor's

findings, but not Johnson's allegations.

Johnson resigned and found other work.

Anderson began a series of suits against

SMEPA and other entities. Despite his

Claims having been twice dismissed on the

merits, and long since time barred, he

now seeks authority to file suit for

SMEPA's general manager testifying under

subpoena, at a bar investigatory hearing.

SMEPA's suit against Sandy Fork

Mining was filed in the United States

District Court for the Southern District

of Mississippi. In response to a motion

to transfer, SMEPA listed the names of

all possible witnesses, including

Anderson and Johnson. Neither was called

as a witness at the trial or even deposed

during discovery. This affidavit is the

basis for Anderson claiming the

protection of a "federal witness".

Anderson misunderstands or misstates his

importance. Attorneys for Sandy Fork

Mining were aware of his existence but

never indicated any inclination to call

him as a witness, or even interview

him.?

Anderson's first suit was filed in

the Circuit Court of Forrest County,

Mississippi. Though he had no

responsibility for fuel contracts, he

related his termination to matters

lwithin the meaning of 18 U.S.C. §

1503 a witness is one who knows, or is

supposed to know, material facts and is

expected to testify to them or to be

called as a witness to so testify.

United States v. Griffin, (1972, CA 10

Kan.), 463 F. , cert. den. (1972),

409 U.S. 988, 34 L.Ed.2d 254, 93 S.Ct.

344,

“18 0.8.C.. § 1503 was enacted for

protection of the public and created no

cause of action in favor of an individual

who claims to be damaged by its

violation. Mainelli v. Providence

Journal Co., 207 F. Supp. 453 (1962 p.c. |

R.I.), affirmed in part and vacated in

part on other grounds, 2 F.2d 3. See

also O'Dell v. Humble Oil & Refinin

Co., 201 F.2d 123 (10 Cir. 1953).

dealing with the coal contract, and

attached as exhibits various memos and

documents he had copied and taken with

him, without permission, when he left his

employment. This suit was the first

knowledge SMEPA had of Petitioner's

possession of these documents>. SMEPA

sought and received an injunction sealing

the documents, and filed a bar

complaint. Anderson eventually decided

to drop his suit, and it was dismissed

with prejudice. Anderson requested that

SMEPA withdraw the bar complaint, but

SMEPA advised it had no authority over

the disciplinary process. Anderson then

signed a covenant not to sue as to all

claims against SMEPA. During the time

the Formal Complaint was pending,

Anderson filed a Motion for Writ of

Prohibition in the Mississippi Supreme

Court. That was overruled on April 29,

1987, without entry of an opinion.

3sustice C. R. McRae's Statement

on Order (Appendix 3 to Petition) is in

error as to SMEPA waiting three years

after knowledge of the theft to file the

bar Complaint. As SMEPA was not a party

to Petition of Attorney GG for Right to

File a Civil Suit, it could not respond

in that action to Anderson's factual

misstatements.

Anderson also sent an ex parte injunction

order to Judge Siler, the federal judge

handling the Sandy Fork litigation in

Kentucky. Without notice or a hearing,

Judge Siler entered the injunction

against the Mississippi Bar. The Sandy

Fork case was ultimately settled on

terms favorable to SMEPA, and the order

regarding Anderson dissolved.

The Committee on Complaints

determined there was probable cause to

believe Anderson was guilty of such

conduct which, if proven, would warrant

the imposition of discipline, and

directed the general counsel of the

Mississippi State Bar to file a Formal

Complaint against Anderson. That

Complaint was ultimately dismissed by the

Complaint Tribunal (Appendix 39 to

Petition).

Despite the earlier voluntary

dismissal of his case, and covenant not

to sue, Anderson again filed suit against

SMEPA and others in the United States

District Court for the Northern District

of Alabama. His Complaint is attached as

Appendix 1. The Alabama court dismissed

one defendant, and transferred the rest

of the case to the Southern District of

Mississippi. ‘ Following discovery,

Anderson's suit was again dismissed with

5 The Court ruled that the

only action by SMEPA which was not barred

prejudice.

by Res Judicata was SMEPA's general

manager testifying, under subpoena, at

the investigatory hearing in 1987.

Anderson did not appeal the dismissal.

SMEPA took no further action in the State

Bar disciplinary proceeding.

ARGUMENT AS TO JURISDICTION

Petitioner Anderson has taken his

allegations concerning wrongdoing to the

United States Attorney for the Southern

District of Mississippi, the F.B.I., the

Rural Electrification Administration®,

and the United States Attorney for the

Northern District of Alabama (deposition

excerpts of Anderson deposition attached

as Appendix 38). No one has deemed the

complaints of sufficient credibility to

take any action regarding SMEPA or any of

the individuals named in Anderson's many

complaints. Anderson is not, and never

{order attached as Appendix 37.

>appendix 42 to Petition.

ONow the Rural Utilities Service.

has been, a federal witness or officer as

contemplated by 18 U.S.C. Section 1503,

and has no more protection than any other

Mississippi employee terminated in 1983.

This action by Anderson is to enable

him to pursue a state cause of action

against a client who filed a bar

complaint and was subpoenaed to appear at

its investigatory hearing. The

Mississippi Bar disciplinary procedures

and immunities are creatures of the

Mississippi Supreme Court, acting as

ultimate arbiter over the conduct of the

members of the Mississippi bar. There

are no issues giving rise to this Court's

jurisdiction’ to intervene in this

‘tn Layne & Bowler Corp. v.

Western Well Works, Inc., (1923), 43 Ss.

Ct. 422, 423-424, 261 U.S. 387, 392-393,

67 L.Ed. 712; the U.S. Supreme Court,

rather than decide the merits of the

case, dismissed the writ of certiorari.

Chief Justice Taft explained, "It is very

important that we be consistent in not

granting the writ of certiorari except in

cases involving principles the settlement

of which is of importance to the public

as distinguished from that of the

parties, and in cases where there is a

real and embarrassing conflict of opinion

and authority between the circuit courts

of appeal."

dispute. The Mississippi Supreme Court's

decision should be final, and not subject

to review by this Court absent some

provable constitutional violation, and

none exists.

CONCLUSION

The Petitioner cannot show

jurisdiction under 28 U.S.C. Section

1257(3) for not being allowed to sue

someone who testified at his state bar

investigatory hearing ten years ago.

The Petition should be denied.

Dated, this the $0~day of October, 1996.

Respectfully submitted,

SOUTH MISSISSIPPI ELECTRIC

POWER ASSOCIATION

BY: Its Attorneys

COMPTON, CROWELL AND HEWITT,

P.L.L.C.

JAMES N. COMPTON

oo Re Een Ree

IN THE UNITED STATES DISTRICT COURT FOR |

THE NORTHERN DISTRICT OF ALABAMA |

SOUTHERN DIVISION |

Civil Action No, CV<93<P-0093<8 |

Franklin V. Anderson,

an individual,

Plaintiff,

va.

AETNA In@urance Company, a

corporation; South Mississippi

Electric Power Association, a

corporation; Dixie Electric

Power Association, a

corporation; and The

Mississippi Bar, a

quasi-agency of the Supreme

Court of the State of

Mississippi;

Defendants.

me ee eee ee” eee” ee” ee” ee” ee”

VERIFIED COMPLAINT

JURY TRIAL DEMANDED

COMES NOW THE PLAINTIFF, Franklin V.

Anderson, pro se, who seeks relief

against the defendants jointly and

severally for violation of the following

statutes:

a. 42 U.S.C. section 1983, Violation

of Civil Rights Under Color of

State Law.

b. 42 U.S.C. section 1985(3)

Conspiracy to Violate Civil Rights.

c. 15 U.S.C. section 1, Sherman

Anti-Trust Act Conspiracy in

Restraint of Trade,

ad. 18 0.8.C,. section 1964 Civil

Relief from a Racketeer Influenced

Corrupt Organization (RICO) based

on the following predicate acts

committed by the Defendante:

Appendix 1

i. 18 U.S.C. section 1341 Mail

Fraud;

ii, 18 U.S.C. section 1343 Wire

Fraud}

iii. 18 U.S.C. section 1503

Obatruction of Justice;

iv. 18 U.S.C. seetion 1951 Hobbs

Act Extortion Affecting

Interatate Commerce and

Involving Public Officials of

the Mississippi Bar,

Vv. 18 U.S.C. section 1951 Hobbs

Act Conapiracy Affecting

Interstate Commerce and

Involving Public Officials of

the Mississippi Bar.

JURISDICTION

1. Federal Courts have jurisdiction

over these claims under 28 U.S.C. section

133l(a), Federal Question, and 28 U.S.C.

sections 1343(a) (1)-(4) Civil Rights.

VENUE

2. Venue is proper in this Court

under 28 U.S.C. section 1391l(c) and 18

U.S.C. section 1964(c), because of the

presence of both the Plaintiff and

Defendants in Alabama.

PARTIES :

3. Plaintiff Franklin V. Anderson is

an adult resident of Jefferson County,

Alabama, located in the Northern District

of Alabama, Southern Division.

4. Defendant Aetna Insurance Company

is a corporation licensed to do business

and doing business in Alabama which

participated in, and received benefit

from, the conspiracy of the other parties

defendant herein,

5, Defendant South Mississippi

Rlectric Power Association (SMEPA),

headquartered in Hattiesburg, Mississippi

is a corporation engaged in generation

and tranemiasion of electricity, doing

Appendix 2

business in Alabama, and routinely

sending representatives into Alabama,

6. Defendant SMEPA is a “person"

defined by Alabama Rules of Civil

Procedure (ARCP) Rule 4,2(a) (3),

transacting business in Alabama, as

contemplated under ARCP Rule

4.2(a) (2) (A), and which contracts to

deliver goods and services in Alabama,

to-wit: wholesale electric power, as

contemplated under ARCP Rule

4.2(a) (2) (B), and which caused tortious

injury, to the Plaintiff, in Alabama, by

acts of a person who regularly does or

solicits business, or engages in any

other persistent course of conduct or

derives substantial revenue from goods

used or consumed or services rendered in

Alabama as contemplated by ARCP Rule

4.2(a) (2) (D).

7. Defendant Dixie Electric Power

Association (Dixie), headquartered in

Laure], Mississippi, is an electric

distribution cooperative receiving

wholesale electricity from SMEPA and

transmitting the same into Alabama,

serving customers, collecting money,

maintaining facilities and doing business

in Alabama.

8. Defendant Dixie is a "person"

defined by ARCP Rule 4.2(a) (3),

transacting business in Alabama, as

contemplated under ARCP Rule

4.2(a) (2) (A), and which contracts to

deliver goods and services in Alabama,

to-wit: retail electric power, as

contemplated under ARCP Rule

4.2(a) (2) (B), and which caused tortious

injury, to the Plaintiff, in Alabama by

acts of a person who regularly does or

solicits business, or engages in any

other persistent course of conduct or

derives substantial revenue from qooda

Appendix 3

use@ Or consumed or services rendered in

thig Alabama as contemplated by ARCP Rule

4,2(8) (2) (D).

g- Defendant Mississippi Bar, also

known as the Mississippi State Bar, is a

quasi-agency of the Supreme Court of the

State Of Mississippi regularly collecting

duea and exercising disciplinary

authority, in Alabama, over approximately

8? actively licensed lawyers and an

unknewn number of other lawyers,

ineluding the Plaintiff, who are inactive

in Mississippi and reside in Alabama.

Defendant Mississippi Bar officially

participated in a conspiracy to violate

the Plaintiff's civil rights and force

the Plaintiff from the practice of law in

violation of the Sherman Anti-Trust Act.

This Defendant is served under Rule 4 of

the Federal Rules of Civil Procedure and

Rules 4(c) (13) and 4.2 ARCP.

NON-PARTY CO-CONSPIRATORS

10. Bill M. Taylor is a federal agent

who, in that capacity, violated the

Plaintiff's Fourth Amendment Rights by

obtaining information from the Plaintiff

and failing to transmit said information

to his lawful superiors in the Rural

Electrification Administration, (REA) of

the United States Department of

Agriculture, and instead joined and acted

in the conspiracy of the other parties

defendant herein.

ll. James F. Hughes is a former

federal agent who, while he was a federal

agent, violated the Plaintiff's Fourth

Amendment Rights. by obtaining information

and documents from Plaintiff and failing

to transmit said information and

documents to his lawful superiors in REA,

and instead joined and acted in the

conapiracy of the other parties defendant

herein.

Appendix 4

FACTS

12. The Plaintiff was employed as

Staff Attorney, with all rights and

benefits afforded to all employees under

the Policy Manual of South Mississippi

Electric Power Association (SMEPA) from

approximately November 17, 1980 to

December 31, 1983.

13. Said Policy Manual specifically

stated SMEPA's commitment that Plaintiff

would not be terminated in the absence of

“just cause"; and included in the duly

adopted definition of "just cause" was

"the failure of the employee to abide by

applicable law or professional

standards", thus creating a contractual

property right of the Plaintiff protected

under the Fifth Amendment of the United

States Constitution.

14, On or about September 3, 1982, the

Plaintiff was informed by SMEPA's

Internal Auditor, Dennis Johnson, that

Significant audit issues, relating to

excessive payments under a coal supply

contract and the absence of proper

independent controls over SMEPA property,

had been ordered concealed, by the

General Manager, George Taylor, in

violation of the generally accepted

professional standards of the American

Institute of Certified Public Accountants

and the Institute of Internal Auditors.

15. Based on the Plaintiff's nine

years of experience and information

obtained from July 2, 1973 to September

3, 1982, regarding George Taylor, such an

order was consistent with Taylor's

personal habit and SMEPA's routine

managerial practice of improperly

influencing and directing professional

employees in the performance of their

duties.

Appendix 5

16. SMEPA and Dixie are federally

financed electric cooperatives which are

mortgaged to and regulated by the Rural

Electrification Administration, (REA) of

the United States Department of

Agriculture.

17. As part of the routine regulatory

process, all books of account, records

and memoranda of SMEPA are open to

inspection and copying by federal

representatives, and periodic reports are

made, by SMEPA, regarding its financial

condition, operations and obligations to

REA through the United States Mail and

over interstate telephone facilities.

18. As part of the routine regulatory

process, federal agents employed by REA

review SMEPA's internal audit reports and

receive information from numerous

cooperative employees including internal

auditors, such as Dennis Johnson.

19. On or about September 2, 1982,

Dennis Johnson was ordered by George

Taylor, General Manager of SMEPA, to

remove five paragraphs from a memorandum

which described Johnson's initial visit

and observations to the offices and

operations of the Sandy Fork Mining

Company (herein Sandy Fork or SFM). Said

five paragraphs read in their entirety:

"It is believed that SMEPA's position

is not as strong as it should be in

this contract. In essence, we have

agreed to have SFM mine a large

quantity of our coal annually at a

price which escalates with various

inflation factors and other specific

increases. We are now paying 25% more

than the current spot market price of

coal and 10% more than the average

long term contract price for coal. It

is believed that this difference is

more likely to increase than decrease

Appendix 6

—— EEO

over the remaining 15 contract years.

One possible method of reducing the

effects of this price difference would

have been to have included a ceiling

on the price SMEPA pays, such as a

phrase in the contract similar to this:

‘In no event will the price SMEPA

pays SFM exceed 125% of that

quarter's average spot market

price for equivalent quality coal

from this region.'

"Another method would have been to

request a much lower minimum quantity

established annually by SMEPA at least

3 months prior to the beginning of

each year with the option of

increasing this amount 50% during the

year. SFM would staff and equip their

operation to produce in this range.

Once the minimum quantity of coal from

SFM has been received, SMEPA would

have the option of entering the spot

market or requesting additional

quantities from SFM,

"SMF has little risk involved in this

long term contract and is almost

guaranteed high profits. After what

is believed to be good bonuses to top

SFM officers and company contributions

of $470,000 and $325,000 in 1981 and

1980 to an employee profit sharing

plan, income before income taxes

increased 156% in 1980 and 48% in 1981

to $4,109,617. Also SFM pays Garland

Coal a sales commission on coal sold

to SMEPA at a rate determined annually

based on the profit per ton. This

flexible rate is a convenient method

of moving profit from SFM to Garland

Coal and SFM is definitely concerned

about looking too profitable. The

annual report for 1982 should be

published by December, 1982. If SFM

Appendix 7

continues to show significant

increases in profit during this bad

year for coal mining companies, it

will confirm the belief that SMEPA has

given away too much in this contract

and subsequent amendments.

"Allowing SFM to sell SMEPA's deep

mined coal to third parties should be

discontinued. SMEPA doesn't have

on-the-site monitoring capabilities to

determine if such activities are

handled properly and the unnecessary

depletion of SMEPA's reserves is not

in the best interest of SMEPA's long

term needs."

20. At all times relevant to this

action, SMEPA owned or had the mineral

rights to approximately 17,000 acres of

land in Kentucky. Said land and mineral

rights were leased to Sandy Fork which

mined coal from this land and elsewhere

and sold the said coal to SMEPA and

others.

21. All contracts and amendments

thereto, between SMEPA and Sandy Fork,

were presented either by personal

delivery or through the United States

Mail to REA for its review, critique and

approval.

22. A material part of the objectives

included in the regulatory function

performed by REA employees was to provide

some assurance that contract terms were

reasonable and followed during the period

of performance.

23. All representations contained

within those documents constitute

material facts to an agency of the

federal government for the purpose of

performing its statutory duties, and are

thereby made subject to criminal

penalties under 18 U.S.C. section 1001.

Appendix 8

SE eee

24. The five paragraphs ordered

removed from Dennis Johnson's September,

1982, memorandum questioned the

reasonableness and propriety of the

contracts between SMEPA and Sandy Fork.

These questions ultimately resulted in a

December, 1985, lawsuit by SMEPA claiming

$80,000,000 damages from Sandy Fork and

the termination of the contracts between

those parties.

25. On or about September 3, 1982, and

subsequently, the Plaintiff counseled

Johnson to refrain from concealing any

material information in his audit reports.

26. On or about September 3, 1982, and

subsequently, the Plaintiff counseled

SMEPA's General Manager, George Taylor,

to refrain from endeavoring to conceal

any material information from, or to

Supply misleading information to, REA by

influencing Dennis Johnson in the

performance of his professional duties.

27. George Taylor admitted his efforts

to control Johnson's reports and demanded

that the Plaintiff join and participate

in those efforts on or about September 3,

1982, and again on February 16, 1983, and

again on numerous other occasions.

28. Under 18 U.S.C. section 1001, any

endeavor to either conceal material

information or to mislead a federal

agency is unlawful, whether or not

successful.

29. The information which George

Taylor endeavored to conceal was material

because it described conflicts of

interest and lack of control over a

contract of more than 20 years duration

and governing an annual expenditure of

approximately $35,000,000 in 1982.

30. Under 18 U.S.C. section 1505

intimidation of a person who possesses

material information and who either

Appendix 9

intends, desires, does, or is expected to

communicate that information to a federal

regulatory agency, in the normal and

routine conduct of its duties, is an

unlawful obstruction of justice.

31. Dennis Johnson possessed material

information and therefore, was such a

person within the protection of 18 U.S.C.

section 1505.

32. Under Code of Professional

Responsibility DR 7-109, adopted and in

effect in Mississippi while the Plaintiff

was employed as SMEPA's attorney, the

Plaintiff was subject to discipline if he

participated in procuring the silence of

Dennis Johnson as a potential witness in

a federal regulatory process.

33. Under Code of Professional

Responsibility DR 7-102, adopted and in

effect in Mississippi while the Plaintiff

was employed as SMEPA's attorney, the

Plaintiff was subject to discipline if he

aided, in any manner, unlawful conduct.

34. Under Code of Professional

Responsibility DR 5-107, and EC 5-18,

adopted and in effect in Mississippi

while the Plaintiff was employed as

SMEPA's attorney, the Plaintiff was

subject to discipline if he failed to

exercise his independent professional

judgment by aiding and abetting other

corporate employees engaging in

misconduct.

35. Under Code of Professional

Responsibility DR 7-102(b) (1), adopted

and in effect in Mississippi while the

Plaintiff was employed as SMEPA's

attorney, and which section was modified

for adoption in Mississippi, from the

American Bar Association's Model Code of

Professional Responsibility by deleting

the phrase “except when the information

is protected as a privileged

Appendix 10

TN

communication," the Plaintiff was subject

to discipline if he failed to reveal his

client's ongoing, or planned, fraud to

the affected person or tribunal, which

parties in this case were Dennis Johnson,

the affected person, and REA, the

affected tribunal.

36. Under Code of Professional

Responsibility DR 7-102(b) (2), adopted

and in effect in Mississippi while the

Plaintiff was employed as SMEPA's

attorney, the Plaintiff was subject to

discipline if he failed to reveal a

non-client's fraud to the affected

tribunal, said non-client being any

corporate agent acting in hostility to

his corporate duties, and the affected

tribunal being REA.

37. Under 18 U.S.C. section 1341 any

use of the United States Mail in

furtherance of a fraudulent transaction

is unlawful whether or not the

communication itself is fraudulent.

38. The communications made by SMEPA,

to REA, regarding the various contracts

and reports which aided in concealing

information or misleading the oversight

process were unlawful under 18 U.S.C.

section 1341.

39. Under 18 U.S.C. section 1343 any

use of interstate telephone facilities in

furtherance of a fraudulent transaction

is unlawful whether or not the

communication itself is fraudulent.

40. The communications made by SMEPA,

to REA, which occurred routinely as part

of the oversight process and which aided

in concealing information or misleading

the oversight process were unlawful.

41. Under Section 79-1-9 of the

Mississippi Code Annotated and Section

191 of the Mississippi Constitution of

1890, adopted and in effect during the

Appendix 11

term of the Plaintiff's employment with

SMEPA and Dixie, it is unlawful, in

Mississippi, for a corporation to

interfere with the civil, political or

social rights of its employees. .

42. Defendant SMEPA endeavored,

through its agents, officers, directors

and employees to violate Dennis Johnson's

rights of free speech by inhibiting his

reporting of his observations and

professional opinions. SMEPA also

violated Johnson's right to engage in a

lawful profession by interfering with his

independent professional judgment

contrary to the requirements of his

professional license, and his right to

communicate with proper law enforcement

authority regarding his observations,

opinions and experience of improper

intimidation.

43. The Plaintiff had a legal and

ethical duty to refrain from aiding SMEPA

in violating Johnson's rights and

interfering with his duties.

44. The Plaintiff was ordered, by

George Taylor, General Manager of SMEPA,

to procure the silence of Dennis Johnson,

on or about Friday, September 3, 1982,

and again at approximately 5:00 P.M. CST,

February 16, 1983.

45. During the period from September

3, 1982 to January 18, 1983, which ended

the Tuesday before the Wednesday, January

19, 1983, meeting of the SMEPA Board of

Directors, Dennis Johnson reviewed the

available accounting records in

Hattiesburg, MS. He also returned to the

Tennessee and Kentucky offices of Sandy

Fork for the purpose of further review

and preparation of a memorandum dated

January 19, 1983, which the Plaintiff

edited and typed for Johnson.

Appendix 12

46. Said memorandum consists of

approximately 10 pages of text with

another approximately 20 pages of

exhibits which show salary information

for Sandy Fork managers and employees,

and exposing nepotism, excessive

salaries, and conflicts of interest. The

exhibits also contained profit

information illustrating that Sandy

Fork's estimated true profit, based on

generally accepted accounting principals,

increased from $2.76 per ton to $7.71 per

ton from 1980 to 1982.

47. Sandy Fork's profit was

represented to REA, for approval, as a

non-escalating (constant) $2.74 per ton

in Amendment 5 to the Coal Contract,

which was approved by REA in 1980.

48. On January 18, 1983, the Plaintiff

hand delivered a copy of the Dennis

Johnson memorandum "dated January 19,

1983" to Jack Ware, General Manager of

Singing River Electric Power Association,

headquartered in Lucedale, MS, and who

was also a Director of SMEPA.

49. The Plaintiff informed Ware of the

ongoing efforts of George Taylor to

influence Dennis Johnson into concealing

the obvious improprieties regarding the

coal contracts. Ware made copies of said

memorandum and distributed them to REA

representative James F. Hughes and six

other manager/directors of SMEPA.

50. On January 18, 1983, Dennis

Johnson delivered to the office of George

Taylor his memorandum "dated January 19,

1983". Said memorandum was returned to

Johnson, undistributed, with orders to

conceal material information.

51. George Taylor's orders for

concealment resulted in a subsequent

memorandum prepared in defiance of said

orders, dated January 26, 1983, which

Appendix 13

stated substantially the same information

and conclusions.

52. Said memorandum, dated January 26,

was distributed at the February 16, 1983

SMEPA Board meeting, by George Taylor,

who expressed disapproval of the report

and unsuccessfully sought permission from

the Board of Directors to fire Dennis

Johnson.

53. Shortly after 5:00 P.M. CST,

February 16, 1983, George Taylor met with

the Plaintiff in the General Manager's

office and stated: "You're either on my

team, or I don't need you. I'll settle

with Dennis [Johnson] later."

54. In August, 1983, the Plaintiff's

office was relocated, at the direction of

George Taylor, and the Plaintiff's

telephone was “bugged" by connection to

the dictation machine located in the

office of SMEPA's Manager of Finance.

55. Said connection, for the

unauthorized and improper monitoring of

the Plaintiff's telephone, while he

served as a corporate attorney, violated

the Plaintiff's professional independence

and waived any attorney-client

relationship which may have existed at

that time. ;

56. On September 22, 1983, the

Plaintiff explained his views of the

application of Section 79-1-9, of the

Mississippi Code Annotated, Section 191

of the Mississippi Constitution and

Kelly v. Mississippi Valley Gas

Company, 397 So.2d 874 (Miss. 1981),

George Taylor stated, in the presence of

the Plaintiff, Marcus Ware, SMEPA's

Manager of Production, and James

Anderson, Esq., an attorney for AETNA,

that: "I would fire any supervisor who

could not get rid of an employee

Appendix 14

regardless of his civil, political or

social rights!"

57. Subsequent to that September 22,

1983 meeting, the Plaintiff discussed all

of the preceding events with REA auditor

Bill M. Taylor who referred the Plaintiff

to REA representative James F. Hughes.

58. In October, 1983, the Plaintiff

received an increase in salary from

approximately $38,000 per year to

$40,425. On or about the Wednesday

before the first Monday of November,

1983, the Plaintiff was visited by Rex

Kelly, Assistant to the General Manager

of SMEPA, who asked the Plaintiff:

"What's it going to take to get you on

the team; Anything you want, anything at

all!". The Plaintiff declined the offer,

which Kelly made on behalf of George

Taylor. The following [first] Monday,

George Taylor summoned the Plaintiff and

told him he was relieved of legal duties

and fired without specifying a particular

date for departure. A week later, George

Taylor informed the Plaintiff of his

departure date by joyously starting the

conversation with the words: "Let's pick

a time."

59. Upon being informed of the

Plaintiff's termination, in November,

1983, James F. Hughes arranged a meeting

between the Plaintiff and Henry L.

Thomas, General Manager of Coast Electric

Power Association (CEPA), headquartered

in Bay St. Louis, MS., which is also an

owning member of SMEPA. Thomas served as

ex-officio director of SMEPA, and

replaced George Taylor as General Manager

of SMEPA in July, 1985. Said meeting

occurred on a Saturday in late November

or early December, 1983 prior to SMEPA's

December, 1983, board meeting. Said

meeting was held in CEPA's Gulfport

Appendix 15

office and lasted approximately four

hours, during which the Plaintiff

described the sequence of events leading

to the meeting, including the termination

of his position as attorney.

60. Thomas asked the Plaintiff to

obtain copies of certain routine

inter-office memoranda from Dennis

Johnson. Said memoranda were obtained

and transmitted to Thomas and Hughes as

requested. The Plaintiff retained copies

of said memoranda to prevent loss or

destruction of the information contained

therein. Thomas stated his intention, as

Chair of the Wage and Salary Committee,

to seek severance pay for the Plaintiff

and a letter of commendation to assist

the Plaintiff in his search for new

employment.

61. At the December, 1983, SMEPA board

meeting, John Keyes, Esq., General

Counsel of SMEPA, was directed to, and

subsequently did, draft and transmit a

letter of commendation of the Plaintiff,

which directly evidences the bad faith

involved in the Plaintiff's discharge

through failure to state the true reason

therefor, and leaving prospective

employers to ask in effect: "Mr.

Anderson, if SMEPA has all these legal

problems which you have helped to handle,

why is there no place for you on their

staff?"

62. On January 16, 1984, the Plaintiff

was employed as the supervising engineer

for the engineering and technical service

functions of Dixie Electric Power

Association, with the job title of System

Engineer.

63. The Plaintiff was warned, in an

August, 1984 telephone call, in violation

of 18 U.S.C. section 1343, a RICO

predicate act, by Jack Ware, that the

Appendix 16

Plaintiff's continued contact with James

F. Hughes, Bill M. Taylor and Dennis

Johnson would cause the Plaintiff to be

fired in the event REA forced the removal

of George Taylor. Ware stated that Dixie

director L.G. Pierce, who also sat on

SMEPA's board, was a strong friend of

Taylor. Ware indicated that Pierce was

subject to influence by others with the

words: "L.G. Pierce hasn't had an

original thought in his head."

64. In October, 1984, Bill M. Taylor

asked the Plaintiff to meet with him and

describe the problems the Plaintiff was

familiar with at SMEPA. Taylor stated

said information was needed for a

delegation of REA officials who would

attend the meeting of Electric Power

Associations of Mississippi in Biloxi,

MS. and there demand the removal of

George Taylor.

65. According to William E. Davis,

Director of Borrower Accounting, REA,

Washington, D.C., immediate supervisor of

Bill M. Taylor, none of the information

provided to Hughes and Taylor by the

Plaintiff and Dennis Johnson ever reached

Washington officials until the Plaintiff

sent it directly to Davis in April, 1989.

66. According to information given to

the Plaintiff by James F. Hughes, during

several telephone conversations in

October, November and December, 1984, at

a special meeting of the SMEPA board,

certain unknown REA officials called for

removal of George Taylor in October

1984. The Wednesday before Thanksgiving,

at another SMEPA board meeting, an

executive committee, including, among

others, Henry Thomas, was appointed to

remove and replace George Taylor. The

Monday after Thanksgiving, 1984, the

committee met with George Taylor and made

Appendix 17

him caretaker until his replacement was

found ard appreved.

67. The Thursday after Thanksgiving,

1984, the Dixie board ordered J.T.

Dudley, Jr., General Manager of Dixie to

fire the Plaintiff. That afternoon,

after 5:00 P.M. CST, Dudley fired the

Plaintiff with the words: "Let's pick a

time," the exact words used by George

Taylor to fire the Plaintiff a year

earlier.

68. Since that meeting, at which the

Plaintiff was fired, Dudley has given no

less than six different and inconsistent

explanations of the Plaintiff's

termination, thus evidencing Dudley's bad

faith and lack of truthfulness and

veracity.

69. Dixie's General Counsel, Ernest

Graves, Esq., was attending a convention

of the Mississippi State Bar, as its

President, on the date of the Dixie board

meeting at which the Plaintiff's

termination was ordered.

70. Taking Graves' place, at the Dixie

board meeting, was his partner, William

Mullins, Esq. The following Monday, the

Plaintiff requested a meeting with

Graves, for which Graves sought and

received the permission of Dixie's

General Manager. Upon receiving, at 9:00

A.M. CST, Tuesday, in Graves' conference

room, the Plaintiff's account of his

termination, Graves, the sitting

President of the Mississippi State Bar,

stated that:

a. The Plaintiff had not been

employed by Dixie as an attorney

and that no attorney-client

relationship existed;

b. The Plaintiff had made many

positive contributions to Dixie

during his tenure; and

Appendix 18

c. The Plaintiff's termination was

R6E ah aGGiisation of wrongful

conduct which required reporting

to the Mississippi State Bar under

DR1-103.

71. However, at the same meeting,

Graves added: "If you want an investiga-

tion of this matter, I am sure one can be

arranged, but it wouldn't do you any

good." Under the circumstances, and from

the Graves' demeanor, the Plaintiff

understood the comment as a threat to

remain silent and not make any complaint

or otherwise cause any investigation of

his terminations.

72. The Plaintiff was unable to obtain

any employment from the time of his

discharge, by Dixie, until Thursday,

July 31, 1986, due to the adverse effect

of the SMEPA and Dixie terminations on

the Plaintiff's reputation and the

references given prospective employers by

Dixie and SMEPA employees and directors.

Furthermore, through the date of filing

of this cause, the Plaintiff has been

unable to find permanent employment.

73. On June 12, 1986, the Plaintiff

filed suit seeking recovery for violation

of civil rights subsequent to his

termination, stating his case of fraud

and bad faith with particularity, as

required by the Mississippi Rules of

Civil Procedure, and attaching thereto

copies of 13 routine inter-office

documents and memoranda, as evidence, as

permitted by the Mississippi Rules of

Evidence, Rules 501 and 502, whether or

not required by the Mississippi Rules of

Civil Procedure.

74. On June 13, 1986, Henry L. Thomas,

General Manager of SMEPA, executed, and

Leslie Scott Sheffield, Esq., Counsel for

SMEPA, served and caused to be filed, an

Appendix 19

affidavit, before the United States

District Court for the Eastern District

of Kentucky, London Division, which

stated that the Plaintiff was among a

long list of persons who "will need to be

called at the trial of this cause"; "this

cause" being Civil Action 86-138, Sandy

Fork v. SMEPA.

75. By so stating, SMEPA admitted the

presence of ongoing fraud, for which no

attorney-client privilege exists, and

forever waived any attorney-client

privilege if any ever did exist, under

federal law.

76. Said designation is also a direct

and prima facie admission of SMEPA's

knowledge that the Plaintiff was a

federal witness, before a United States

District Court, and SMEPA's subsequent

actions show its fraudulent intent to

influence and control said testimony in

violation of 18 U.S.C. section 1503, a

predicate act for RICO.

77. Further, the same Henry L. Thomas

executed and caused to be filed, in

Hattiesburg, Mississippi, on or about

June 27, 1986, essentially the same

affidavit, before the United States

District Court, Southern District of

Mississippi, Hattiesburg Division,

showing a continuing fraudulent plan and

thereby demonstrating the absence of any

mistake.

78. At approximately 8:00 A.M. CDT,

June 16, 1986, an attorney for SMEPA

called Noel P. Giuffrida, Esq., who was

assisting the Plaintiff as co-counsel,

and informed Mr. Giuffrida that, unless

the Plaintiff withdrew his lawsuit and

exhibits, a bar complaint would be filed

against the Plaintiff.

79. Said telephone call of June 16,

1986, is unlawful as a communication,

Appendix 20

over the interstate telephone system, in

furtherance of a fraudulent purpose under

18 U.S.C. section 1343, and an extortion

affecting interstate commerce under the

Hobbs Act, 18 U.S.C. section 1951 et.

seq., and evidences a conspiracy to

violate the Hobbs Act, 18 U.S.C. section

1951 et. seq., all of which are predicate

acts for RICO claims.

80. On June 16, 1986, one or more

attorneys from the law firm of Bryan,

Nelson, Allen, Schroeder and Randolph, of

Hattiesburg, Mississippi, representing

SMEPA, obtained an "ex parte” temporary

restraining order, approximately four

pages in length, finding that the

Plaintiff had stolen client secrets by

filing a lawsuit against his former

corporate client and certain other

persons.

81. On Tuesday, June 28, 1986, a

hearing was held on SMEPA's motion for a

preliminary injunction against the

Plaintiff. Notice of said hearing was

served by mail, to give the Plaintiff one

working day of notice prior to hearing,

when the Mississippi Rules sf Civil

Procedure require five. The judge

hearing the motion denied the Plaintiff

additional time to prepare for the

hearing or to present a brief. A

preliminary injunction was forthwith

issued, which continued the finding that

the Plaintiff had stolen client secrets

by filing a lawsuit, and further

enjoining Plaintiff from speaking to

virtually every person in the world,

without the Court's permission. Said

injunction was made permanent on or about

July 7, 1986.

82. Specifically included in the list

of prohibited communicants for the

Appendix 21

Plaintiff were “representatives of the

Mississippi State Bar".

83. On or about July 1, 1986, Henry L.

Thomas signed, and transmitted through

the United States Mail, or otherwise

caused to be delivered through channels

of interstate commerce, a complaint

against the Plaintiff to the Mississippi

State Bar, now called the Mississippi Bar.

84. Said complaint accused the

Plaintiff of stealing client secrets by

filing a suit against the Plaintiff's

former employers and agents thereof and

using information at his disposal

therefor.

85. Said complaint was date-stamped in

the office of the Mississippi State Bar

on July 7, 1986.

86. Said communication, if made

through the United States mail, and any

attendant communications over the

interstate telephone wires, in

furtherance of a plan to violate 18

U.S.C. section 1503 by harassing,

oppressing and intimidating a federal

witness, and denying him his civil rights

of free speech, petition of government,

due process and engaging in a lawful

trade, profession or occupation,

constitute communications for a

fraudulent purpose in violation of 18

U.S.C. section 1341 and 18 U.S.C. section

1343, Mail Fraud and Wire Fraud, and

further violate 18 U.S.C. section 1951

et. seq. by extortion and conspiracy

affecting interstate commerce, all of

which are also predicate acts for RICO

claims.

87. On or about July 17, 1986, Michael

B. Martz, Esq., General Counsel of the

Mississippi State Bar caused to be

served, on the Plaintiff, a copy of Henry

Thomas's complaint, by Certified United

Appendix 22

States Mail, which is another violation

of 18 U.S.C. section 1341, Mail Fraud, by

making a communication in furtherance of

a fraudulent purpose, and of the Hobbs

Act both in extortion and conspiracy,

which at this point directly included a

second quasi-state official and agency,

the Mississippi State Bar, and all of

which comprise predicate acts for RICO.

88. On or about the last Friday in

July, 1986, Plaintiff searched the files

of SMEPA v. Sandy Fork, in the office

of United States District Court Clerk, in

Hattiesburg, MS, where he found and

copied Henry Thomas' affidavit of

June 27, 1986.

89. The Plaintiff then made an "ex

parte" motion to the Circuit Court of

Forrest County, Mississippi, for

permission to consult another attorney

for assistance, and for permission to

answer the charges made by Henry Thomas,

against the Plaintiff, before the

Mississippi State Bar. The Plaintiff

informed the court of the federal

affidavit filed in Hattiesburg, MS, which

was the only one he was aware of at the

time, and the pending bar complaint.

90. The Circuit Court denied the

Plaintiff permission to either consult

additional counsel or respond to the

investigation of the Mississippi State

Bar, in direct violation of the

Plaintiff's First Amendment rights of

free speech, association, petition of

government, Sixth Amendment rights of a

speedy and public trial and Fourteenth

Amendment right of due process.

91. In August, 1986, at the direction

of Michael B. Martz, General Counsel of

the Mississippi State Bar, the Plaintiff

called and wrote the Mississippi State

Bar, from San Francisco, California, in

Appendix 23

possible violation of the injunction of

the Circuit Court of Forrest County, to

explain that he was prohibited from

answering Henry Thomas's allegations, by

a fraudulent order which Henry Thomas had

obtained from the Circuit Court of

Forrest County, Mississippi, and that

Henry Thomas had identified, by affidavit

filed in federal court, the Plaintiff as

a federal witness. Said letter included

copies of the injunction and affidavit

and is an exhibit in the files of the

Mississippi State Bar to which the

Plaintiff has been denied access.

92. Those communications between

Michael B. Martz, General Counsel of the

Mississippi State Bar in Jackson,

Mississippi, and the Plaintiff in San

Francisco, California, through the United

States Mail and over the interstate

telephone system, in furtherance of

Defendants’ fraudulent scheme to control

the Plaintiff's testimony and

presentation of evidence in a United

States District Court, comprise further

violations of 18 U.S.C. section 1341 and

18 U.S.C. section 1343 and predicate acts

for RICO, .

93. The last Monday in July, 1986, the

Plaintiff was offered a temporary

position in San Francisco, with the

Pacific Gas and Electric Company, on

condition that Plaintiff report for work

at 8:00 A.M. PDT that Thursday, July 31,

1986.

94. SMEPA's attorneys, representing

all defendants in the Plaintiff's suit

then pending, arranged for the Circuit

Court of Forrest County, MS, to call a

settlement conference in Hattiesburg, MS,

scheduled for the first Tuesday following

September 30, 1986.

Appendix 24

95. Defendants therein attempted to

conceal the existence of and schedule for

said conference.

96. The Plaintiff learned of said

conference in spite of SMEPA's efforts to

conceal it, as indicated by Mike

Randolph's comment to the Plaintiff on

September 30, 1986, at approximately 9:15

A.M. CDT, "Well, how did you even become

aware of it?"

97. The same group of attorneys

subsequently arranged such a hearing or

conference before the Circuit Court of

George County, Mississippi, in a claim

against a prospective buyer, on behalf of

the Singing River Electric Power

Association. The defendant's attorney

therein was not given notice of the

conference and failed to appear;

whereupon Singing River was awarded, on

February 10, 1989, by Circuit Judge

Darwin Maples, a default judgment and

sanctions in the amount of approximately

$100,000. Judge Maples has since been

removed from the bench.

98. On September 30, 1986, the

Plaintiff called Mike Randolph, Esq., who

with Jack Land, Esq., and Vic Smith,

Esq., of the law firm of Bryan, Nelson,

Allen, Schroeder and Randolph in

Hattiesburg, Mississippi, represented all

defendants in the Plaintiff's suit, to

determine the reason and necessity of the

impending settlement conference.

99. The Plaintiff explained to

Randolph that, the judge calling said

conference would not return the

Plaintiff's calls and that no time was

available, on such short notice, to seek

a postponement through other means of

communication. The Plaintiff further

explained that, the cost of attending

said conference could exceed one-thousand

Appendix 25

dollars for air fare and car rental, and

probably would result in loss of the

Plaintiff's first paying job in 20 months.

100. Randolph refused to cooperate in

cancelling or postponing the conference

or making arrangements to allow other

means of communication. Randolph

demonstrated that, while the Plaintiff

could not talk to the judge calling the

conference, Randolph could, contrary to

Section 25 of the Mississippi

Constitution of 1890 which reads:

"No person shall be debarred from

prosecuting or defending any civil

cause for or against him or herself,

before any tribunal of the state, by

him or herself, or counsel or both."

101. In a series of five interstate

telephone calls made on September 30 and

October 1, 1986, in furtherance of the

Defendants' fraudulent scheme to control

the Plaintiff's testimony and

presentation of evidence in a United

States District Court, Randolph extorted,

on behalf of SMEPA and all other

defendants to the Plaintiff's suit, named

and unknown, and particularly including

the Defendant Aetna Insurance Company, a

purported settlement, which Randolph

repeatedly stated, and which the

settlement documents and terms clearly

show, was for the express purpose of

controlling the Plaintiff's testimony

before federal courts in the SMEPA/Sandy

Fork controversy, as well as denying the

Plaintiff his right to present his claims |

to a court of law.

102. Said telephone calls were made in |

furtherance of Defendants' plan to

obstruct justice in violation of 18

U.S.C. section 1503 and constitute a wire

fraud under 18 U.S.C. section 1343, and

because the official power of the State

Appendix 26 ,

ear scr mEn eee

of Mississippi was doubly involved,

through its Circuit Court and State Bar,

said communications were violations of 18

U.S.C. section 1951 et. seq. Hobbs Act

Extortion and further evidence a Hobbs

Act Conspiracy in violation of 18 U.S.C.

et. seq. 1951, all four being predicate

acts for RICO recovery.

103. On or about December 26, 1986,

the Mississippi State Bar notified the

Plaintiff, through the United States

Mail, that it would continue its

persecution of the Plaintiff in spite of

the purported settlement of the original

dispute. This communication violated 18

U.S.C. section 1341 by communication for

a fraudulent purpose through the United

States Mail, and is also a RICO predicate

act.

104. In March, 1987, the Plaintiff

requested a Writ of Prohibition from the

Supreme Court of Mississippi to halt the

ongoing violation of federal law by the

Mississippi State Bar. Said petition

clearly stated and supported the

Plaintiff's status as a federal witness

and the fraud perpetrated by the

complainant Henry Thomas which had been

adopted as official action by the

Mississippi State Bar.

105. The requested relief was denied

and the Plaintiff was formally charged

with theft of client secrets on

November 13, 1987, for:

a. Communicating with Henry Thomas,

the bar complainant;

b. Communicating with Bill M. Taylor,

REA field auditor; and

c. Bringing suit against SMEPA.

106. Said formal charges were

communicated to the Plaintiff through the

United States mail, further violating 18

Appendix 27

U.S.C. section 1341 and adding another

predicate act for RICO.

107. Said charges were made in

violation of the Sherman Anti-Trust Act,

15 U.S.C. section 1 for the express

purpose of disbarring the Plaintiff and

preventing him from engaging in the

practice of law in retaliation for the

Plaintiff's federally protected actions.

108. The Plaintiff sought and received

protective and injunctive relief from the

United States District Court of the

Eastern District of Kentucky, London

Division, on December 29, 1987.

109. The Mississippi State Bar

voluntarily appeared in Kentucky on

December 28, 1987 by filing, through the

United States Mail, a motion "pro hac

vice" and brief, a communication through

the United States Mail in furtherance of

a fraudulent and conspiratorial scheme to

violate 18 U.S.C. section 1503 for the

purpose of harassing, oppressing and

intimidating a federal witness before a

federal court, in violation of 18 U.S.C.

section 1341, a predicate act for RICO.

110. The protective relief, among

other things, ordered the Mississippi

State Bar to withdraw its charges against

Plaintiff because of violation of 18

U.S.C. section 1503, a predicate act for

RICO.

111. In the process of opposing the

Plaintiff's request for protection, James

N. Compton, Esq., attorney for SMEPA from

the law firm of Bryan, Nelson, Allen,

Schroeder and Compton, in Gulfport,

Mississippi, wrote:

"In his latest effort to avoid the

natural and expected consequences of

his actions, Frank Anderson now files

this Motion, seeking to prevent the

Mississippi State Bar from proceeding

Appendix 28

against him. Mr. Anderson's claim to

protection as a federal witness is a

fabrication. At no point have any of

the parties in the instant litigation

ever determined the need to take Mr.

Anderson's deposition, nor is it even

remotely possible that his testimony

would ever be used at any future

proceeding."

112. Said federal court order, dated

December 29, 1987, granting protection to

the Plaintiff is res judicata, and can be

enforced under federal law nationwide

upon anyone who has knowledge of the

order, whether or not that person was a

party to the proceeding from which it was

issued.

113. The Mississippi State Bar never

complied with the order, and instead

contumaciously maintained:

"(T)hat the MSB was [not] a party to

the proceeding before the Kentucky

District Court, nor [had] it had been

brought before that court by legal

process. While we do not doubt the

jurisdiction of the Kentucky court to

protect witnesses in any proceeding

before it from harassment or

intimidation, it had no jurisdiction

to require the MSB, a non-party, to

take affirmative action in

Mississippi..."

114. Within days of the federal court

order protecting the Plaintiff, SMEPA and

Sandy Fork chose to settle their dispute

pending before the federal court.

115. As further evidence of fraud and

collusion between SMEPA and Sandy Fork,

the parties filed an Agreed Order, on

November 10, 1986, wherein both sides

agreed to call only those witnesses who

would agree to be bound by a

Confidentiality Agreement, which

Appendix 29

certainly excluded the Plaintiff, and

further, to return to the opposing

parties all discovered documents and

destroy all evidence with "attorney work

product" which would otherwise be

returned to the producing party at the

end of litigation.

116. In clear coordination with the

General Counsel of the Mississippi State

Bar, the SMEPA/Sandy Fork Mining

settlement was entered and the

Mississippi State Bar moved for

reconsideration of the December 29, 1987,

order, on February 19, 1988.

117. Under federal law, a Motion to

Reconsider is not a substitute for

appeal, and does not upset the finality

of the December 29, 1987, order.

118. As part of his argument to

continue the relentless attack upon the

Plaintiff, Michael B. Martz, Esq.,

General Counsel of the Mississippi State

Bar, wrote in his brief:

"(Mr. Anderson] chides the Bar by

saying that it is ‘fascinating’ that

it does not cite one case to support

its position. The Bar submits that

{[Mr. Anderson's] argument is built on

sand and is so weak that no case need

be cited because of the reasons

already discussed. Notwithstanding

the fact that [Mr. Anderson] has

wrongfully benefited from this Court's

Order of December 29, 1987, he now

submits that if this Court sets aside

its original Order that it would work

a severe injustice upon him. Anderson

does not identify what the injustice

would be. The only injustice that the

Bar can think of involving Anderson

would not be an injustice to Mr.

Anderson but to the other 4700 active

members of the Mississippi State Bar

Appendix 30

who practice law in the State of

Mississippi since if this Court does

not set aside or withdraw its Order of

December 29, 1987, a member of the

Mississippi State Bar will be excused

from answering charges of professional

misconduct. True, an injustice would

have occurred but it would have

happened to the approximately 4700

lawyers licensed in Mississippi who

took an oath to abide by the Rules of

Professional Conduct and are doing

their best to abide by them and, who,

if they overstep the bounds of

professional responsibility are

answerable to such charges."

119. On March 22, 1988, the

December 29, 1987, Order was vacated on

the sole ground that the underlying suit

had been settled and the court exercised

its discretion to rule the need for

prospective injunctive protection moot.

120. On December 14, 1988, the

Complaint Tribunal, sitting by

designation as Special Master of the

Supreme Court of Mississippi, granted

Plaintiff Summary Judgement, ruling that

all charges brought by the Mississippi

State Bar were groundless and incapable

of justifying any disciplinary action

against Plaintiff under any

interpretation of the Rules of

Professional Conduct. An order was

signed dismissing all complaints against

Plaintiff which became final and

non-appealable to the Supreme Court of

Mississippi on February 9, 1989.

121. The Plaintiff would show that his

employment in San Francisco was

terminated at the end of his initial

contract at Thanksgiving, 1986, because

of the continuing harassment of the

Mississippi State Bar.

Appendix 31

122. The Plaintiff thereupon obtained

temporary employment with Louisiana Power

& Light Company from approximately

December 2, 1986, until approximately

December 31, 1987, but was neither

retained nor hired for a permanent

position at least in part because of the

continuing Mississippi Bar harassment

consisting of the knowing prosecution of

fraudulent quasi-criminal charges against

a person known to be a federal witness.

123. The Plaintiff was unemployed and

unable to find work from January 1, 1988,

until July, 1988, at which time he became

a laborer for a construction company.

Said manual employment continued until

February, 1989, when, because of a lack

of work, the Plaintiff was dismissed.

124. The Plaintiff then worked on a

farm, for two months, feeding cows,

fencing pastures and doing other manual

labor until he was offered a position

operating machines and sweeping floors in

a furniture plant which continued until

April, 1990.

125. Because of the economic disaster

suffered by the Plaintiff and his family,

the Plaintiff's mother announced in

April, 1988, that the Plaintiff was born

out of wedlock and adopted, a secret she

had maintained for 38 years, whereupon

she entered a rest home in which she died

June 30, 1989.

126. The Plaintiff's wife, upon

hearing of his birth and adoption,

stated: "You're nothing but a no-named

Iowa bastard who can't get or keep a

decent job." Then she took their son,

and abandoned the Plaintiff, obtaining a

divorce in Jackson, Mississippi,

February 14, 1989.

Appendix 32

COUNT I

127. The Plaintiff adopts and

incorporates paragraphs 1-126 as if set

out fully herein. The Plaintiff would

show that the Defendants violated 18

U.S.C, section 1961 et. seq. by engaging

in a continuing pattern of corrupt

conduct through the predicate acts of

violating 18 U.S.C. section 1341, Mail

Fraud; 18 U.S.C. section 1343, Wire

Fraud; 18 U.S.C. section 1951 et. seq.,

Extortion Affecting Interstate Commerce

and Involving Public Officials; and 18

U.S.C. section 1951 et. seq., Conspiracy

to Affect Interstate Commerce by

Extortion Involving Public Officials; and

18 U.S.C. section 1503, Obstruction of

Justice by Interference with a Witness

before a United States District Court.

WHEREFORE, PREMISES CONSIDERED, the

Plaintiff demands judgment against the

Defendants, jointly and severally, under

18 U.S.C. section 1961, et. seq., (RICO)

in the Compensatory Amount of $10,000,000

(Ten Million United States Dollars) said

amount reflecting the approximate present

value of the Plaintiff's lost earnings

and benefits from the employment and

professional opportunities destroyed by

the Defendants herein, which, under RICO

should be trebled with the additional

award of attorney fees, expenses and

court costs.

COUNT II

128. The Plaintiff adopts and

incorporates paragraphs 1-127 as if set

out fully herein. The Plaintiff would

show that the Defendants conspired to

drive the Plaintiff from the marketplace

for legal services in Mississippi, in

direct violation of 15 U.S.C. section 1,

et. seq., by damaging his personal and

Appendix 33

professional reputation through abuse of

the disciplinary process of the

Mississippi State Bar.

WHEREFORE, PREMISES CONSIDERED, the

Plaintiff demands judgment against the

Defendants, jointly and severally, under

15 U.S.C. section 1, et. seq., (Sherman

Anti-trust Act), in a Compensatory Amount

of $10,000,000 (Ten Million United States

Dollars) reflecting the approximate

present value of the Plaintiff's lost

earnings and benefits from the

professional and employment opportunities

destroyed by the Defendants herein, which

under the Sherman Anti-trust Act should

be trebled with the additional award of

attorney fees, expenses and court costs.

COUNT III

129. The Plaintiff adopts and

incorporates paragraphs 1-128 as if set

out fully herein. The Plaintiff would

show that the Defendants acted to violate

the Plaintiff's federal civil rights, by

a conspiracy of two or more persons, in

their coordinated efforts to prevent the

Plaintiff from presenting his testimony

and seeking relief in any court.

WHEREFORE, PREMISES CONSIDERED, the

Plaintiff demands judgment against the

Defendants, jointly and severally, ina

Compensatory Amount of $10,000,000 (Ten

Million United States Dollars) reflecting

the approximate present value of the

Plaintiff's lost earnings and benefits

from the professional and employment

opportunities destroyed by Defendants

herein, and Punitive Damages in an

unspecified and unlimited amount against

the Defendants under 42 U.S.C. section

1985(3) for the conspiracy of each and

all of the Defendants to violate the

Plaintiff's civil rights of free speech,

petition of government, due process,

Appendix 34

association, practice of a lawful trade,

profession and occupation, providing

information to law enforcement authority,

and life, liberty and property, with

additional award of attorney fees,

expenses and court costs under 42 U.S.C.

section 1988.

COUNT IV

130. The Plaintiff adopts and

incorporates paragraphs i-129 as if set

out fully herein. The Plaintiff would

show that the Defendants violated his

civil rights under color of state law by

fraudulently causing and promoting his

prosecution by the State of Mississippi,

for exercise of the constitutional rights

of aiding law enforcement authority, free

speech, petition of government, due

process, practice of a lawful trade,

profession or occupation, and enjoyment

life, liberty and property.

WHEREFORE, PREMISES CONSIDERED, the

Plaintiff demands judgment against the

Defendants, jointly and severally, ina

Compensatory Amount of $10,000,000 (ten

Million United States Dollars) reflecting

the approximate present value of the

Plaintiff's lost earnings and benefits

from the professional and employment

opportunities destroyed by the Defendants

herein, and Punitive Damages in an

unspecified and unlimited amount against

the Defendants under 42 U.S.C. section

1983 for violating Plaintiff's civil

rights of free speech, petition of

government, due process, association,

practice of a lawful trade, profession

and occupation, providing information to

law enforcement authority and life,

liberty and property, under color of the

law of the State of Mississippi, with the

additional award of attorney fees,

Appendix 35

expenses and court costs under 42 U.S.C.

section 1988.

ADDITIONALLY, the Plaintiff prays for

such other and further relief as this

Court may deem appropriate and may award,

in equity or at law, in its discretion.

RESPECTFULLY SUBMITTED:

(not executed)

Franklin V. Anderson, Pro Se

3420-19 Clairmont Avenue

Birmingliam, Alabama 35222

(205) 251-9831

State of Alabama )

)

Jefferson County )

I, the undersigned, a Notary Public in

and for said County and State hereby

certify that Franklin V. Anderson,

personally appeared before me, and who

being first identified and placed under

oath, states and declares the above

statements to be the truth to the best of

his knowledge, information and belief and

that he executed the same voluntarily on

the day the same bears date.

Given under my hand and official seal

this the day of tern wre 1993.

(not executed)

Notary Public

(file stamped copy dated 1-11-93)

Appendix 36

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

Southern Division

Case No. 93-P-00093-S

FRANKLIN V. ANDERSON,

)

Plaintiff; )

-VsS.>- )

AETNA INSURANCE CO., et al., )

Defendants. )

ORDER

This case is before the court on

motions to dismiss brought by all

defendants. Defendants Southern

Mississippi Electric Power Association

and Dixie Electric Power Association move

in the alternative to transfer this case

to the Southern District of Mississippi.

To the extent the plaintiff's

complaint states any claims against

Defendant Aetna Insurance Company, they

are barred by the applicable statutes of

limitations. Accordingly, Defendant

Aetna Insurance Company's motion to

dismiss is hereby GRANTED and Aetna

Insurance Company is DISMISSED with

prejudice.

As to the remaining defendants, venue

is proper in the Southern District of

Mississippi. Accordingly, this court

declines to rule on the motions to

dismiss brought by the remaining

defendants and pursuant to 28 U.S.C.

section 1404(a), this case is hereby

TRANSFERRED to the Southern District of

Mississippi, Jackson Division.

This the 10th day of March, 1993.

/s/SAM C. POINTER, JR.

United States District Judge

(Entered 3-11-93)

Appendix 37

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

Case No. 3:93CV-124(W) (N)

Franklin V. Anderson, an individual,

Plaintiff,

vs.

South Mississippi Electric Power

Association, a corporation; Dixie

Electric Power Association, a

corporation; and The Mississippi Bar, a

quasi-agency of the Supreme Court of the

State of Mississippi,

Defendants.

DEPOSITION OF FRANKLIN V. ANDERSON,

PRO SE

Taken at the Mississippi Bar Center, 643

North State Street, Jackson, Mississippi,

beginning at 10:00 a.m. on June 15, 1993.

Reported by: Peggy Roberts

Shorthand Reporter

Notary Public

Appendix 38

Excerpts from the Deposition of Franklin

V. Anderson taken on June 15, 1993.

p. 12, lns. 9-25 to p. 13, lns. 1-13:

"Q. Mr. Anderson, have you presented your

evidence or allegations of alleged

blackmail to any other prosecutor

besides to someone in Birmingham?

A. I originally discussed the matter

with the United States Attorney and

the FBI here in Jackson. The Federal

Bureau of Investigation told me,

approximately, September 29, 1986,

‘Mr. Anderson, I don't care how many

Federal agencies you've assisted. I

don't care that you are a Federal

witness. I don't care what

information you have given to any

Federal agent. I don't care that

your life has been threatened. I

don't care that your wife has been

threatened. I don't care that you

are on the verge of losing everything

that you own. You are not my Federal

witness. I did not call you. I did

not select you. I have no duty,

whatsoever, to protect you,'

Q. Who was speaking on behalf of the

U.S. Attorney?

A. This was the special agent in charge

of the FBI office here in Jackson,

Mississippi. I believe his name was

J.E. Murphy.

Q. So, to the best of your knowledge,

the special agent who received the

information you have used as the

basis of this complaint decided not

to prosecute?

A. Special agent, in concert with George

Phillips, the United States Attorney."

Appendix 39

151, ins. 22 to p. 152, in. 21:3

The extent of your allegation of

coercion by them is the telephone

conversation that you had with

Michael Randolph?

No, sir. The orders of the Circuit

Court of Forrest County, which have

been concealed so far in this case,

prohibited me from speaking to a

United States Federal Court. Those

orders prohibited me from speaking to

the Mississippi Bar. They prohibited

me from speaking to the Federal

Bureau of Investigation.

But you have done ail of those things.

I certainly have, and I dare anybody

to try anything because I have done

it.

So the order in and of itself as far

as you were concerned really had no

effect. You have done everything

that you were prohibited from doing.

Yes, sir, including writing the

President of the United States.

You wrote the President, and you

wrote the Attorney General, and you

wrote to the REA manager and the

administer. You've told them all,

right?

Yes, sir."

Appendix 40