Appendix — Johnson v. District of Columbia (No. 06-897)
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Supreme Court U8
06-897 55° 27 2006
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6 Che ‘eS i dew § wi,
IN THE
Supreme Court of the United States
KENNETH W. JOHNSON,
Petitioner.
MARRION BARRY JR. MAYOR OF THE
DISTRICT OF COLUMBIA. e7 al..
Respondents.
On Petition For Writ Of Certiorari ,
To The District Of Columbia Court Of Appeals
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
Kenneth W. Johnson
Pro se litigant of Record
Y803 Allentord Circle, Apt. 203
North Potomac. Md. 20850
Telephone: (240) 314-7188
TABLE OF CONTENTS
Appendix A
District of Columbia Court of Appeals
Memorandum Opinion and Judgment
Kenneth W. Johnson vy. District of Columbia,
04-CV-115 & 04-CV-442 (November 21, 2006)...... 1A
District of Columbia Court of Appeals
Memorandum Opinion and Judgment
Kenneth W. Johnson vy. District of Columbia,
04-CV-115 & 04-CV-442
CHOCIDUE DB, GN ss kactidecincksecsasescncaaaven 2A-5A
Appendix B
Superior Court of the District of Columbia
Order denying Plaintiff's Request
For Oral Argument and Motion to Vacate Prior
Judgment Under Rule 60(b)
CRamaty Ua, Beis siesccassscansyaxenvanadeiesseazenl 6A-8A
Appendix C
Superior Court of the District of Columbia
Order denying Plaintiff's Motion
for Reconsideration and Motion to Admit
Videotape Evidence (March 24, 2004)................. 2A
Appendix D
Superior Court of the District of Columbia
Order Granting Motion to Dismiss
Plaintiffs Complaint (July 15, 1998).................. LOA
Appendix E
Superior Court of the District of Columbia
Complaint in Civil Action 3837-98
Kenneth W. Johnson v. District of Columbia
(TH[E] COMPLAINT) (May 21, 1998) ........ 1LA-24A
Appendix F
Affidavit of Service served Marion Barry, Jr.,
Mayor or the District of Columbia..................... 25A
Appendix G
Affidavit of Service served
Corporation Council of the
i a OD . cocecccccvevceseesscecooeess 27A
Appendix H
Affidavit of Service served
DC Metropolitan Police Department .................. 29A
Appendix |
Defendant District of Columbia’s Motion
to Dismiss Plaintiff's Complaint, or in the
Alternative, for Summary Judgment............. 31A-32A
Appendix J
Memorandum of Points and Authorities in
Support of Defendant’s Motion to Dismiss,
or, in the Alternative, for
INL, .cvcccscecosceversecoveveses 33A-36A
Appendix K
Superior Court for the District of Columbia
Acquittal and findings of fact,
United States of America vs.
Kenneth W. Johnson
Ne Bila OO iicietdtnscancbcncivecescaen 37A-43A
Appendix L
Superior Court for the District of Columbia
Complaint in Civil Action 3875-98
Kenneth W. Johnson v. James O’ Boyle
(Temporary Restraining Order)
SN dlc: We innccecusdcankidaiaviageatnonaunciren ta 44A-47A
Appendix M
Superior Court Rules — Civil (SCR-Civil) Rules,
Introductory Note: Rules 1-86 hereof are
derived directly from the correspondingly
numbered Federal Rules and are in many
GHG SEIT Civic cd cccnvsccncanvicctevecsuactasans 48A
Appendix N
Superior Court Rule of Civil Procedure 60(b)
(which is identical to Federal Rule of
Civil Procedure GOCD)). ........cccccsccccccscccccss 49A-50A
Appendix O
Federal Rule of Civil Procedure 60(b).......... S1A-52A
Appendix P
FECA Se WS Bec vccncsecssvnresccascens eae
Appendix Q
14" Amendment to the
United States Constitution..................cceceeeeeees 55A
Appendix R
Se eS Ee Ot ic cbicvvccovsnasevesbeneuscgssvineaes S6A
Appendix S
HAZEL-ATLAS GLASS CoO. v.
HARTFORD-EMPIRE CO.
De Wile FAs Oe Rs COB siacsccciensbexseseess 57A-78A
Appendix T
JOHN DEMJANJUK, v.
JOSEPH PETROVSKY, et al.,
F.3d 338; 1993 U.S. App. LEXIS 29694;
27 Fed. R. Serv. 3d (Callaghan) 437............... T9A-116A
Appendix U
En Banc decision of the United States Court of
. Appeals for the District of Columbia held:
“We hold that appellant’s noncompliance
with 12 D.C. Code § 309 cannot bar his
federal claims.”--Brown v. United States,
239 U.S.App.D.C. 345, 356-357............. 117A-143A
Appendix V
Attorney James A. DeVita: The former attorney
for the District of Columbia is now in private
practice specializing in, “Fraud-individuals
injured due to misrepresentations of facts by
SNE uadissavaveewesstbasinvasennaeeunteoane 144A-146A
Appendix X
Pertinent parts of the October 24, 2003
Memorandum that was filed in the Superior
Court of the District of Columbia in support
of Plaintiffs Rule 60(b) motion to vacate
prior judgment on the basis of
“fraud upon the court”. The memorandum
was titled: “MOTION UNDER RULE
60(b) TO VACATE PRIOR JUDGMENT
UNDER RULE GROUNDS OF
“FRAUD UPON THE COURT”
AS HEREIN SET OUT BY THIS
MOTION AND MEMORANDUM
OF LAW AND POINTS AND
Fees SE sicsatcnccsiacestencseaces 147A-152A
1A
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 04-CV-115 Pte
04-CV-442 IT Nov 21 2006
DISTRICT OF COLUMBIA
COURT OF APPEALS
KENNETH W. JOHNSON, APPELLANT,
V. CA-3837-98
DISTRICT OF COLUMBIA, et al., APPELLEES.
BEFORE: Washington, Chief Judge; Farrell, Ruiz, Reid,
Glickman, Kramer, Fisher, Blackburne-Rigsby, and
Thompson, Associated Judges.
ORDER
On consideration of appellant’s pro se petition for
rehearing en banc; and it appearing that no judge of this
court has called for a vote on the petition for rehearing en
banc, it is
ORDERED that the petition for rehearing en banc is
denied.
PER CURIAM
Copies to:
Honorable Michael L. Rankin
Clerk, Superior Court
Kenneth W. Johnson
9803 Allenford Circle
Apartment 203
North Potomac, MD 20850
Todd Kim
D.C. Solicitor General
2A
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 04-CV-1L15/8
04-CV-442
DISTRICT OF COLUMBIA
COURT OF APPEALS
KENNETH W. JOHNSON, APPELLANT,
vi. CA-3837-98
DISTRICT OF COLUMBIA, et al., APPELLEES.
Appeals from the Superior Court of the
District of Columbia
Civil Division
(Hon. Michael L. Rankin, Trial Judge)
(Submitted September 27, 2006 Decided September 28,
2006)
Before FARRELL and KRAMER, Associate Judges, and
NEBEKER, Senior Judge.
MEMORANDUM OPINION AND JUDGMENT
PERCURIAM: These appeals are from the denial of
appellant’s motion under Super. Ct. Civ. R. 60(b) filed over
five years after his case had been dismissed, and from the
denial of his successive motions to reconsider the denial of
the Rule 60(b) motion. The crux of appellant’: argument,
aside from his numerous assertions regarding the merits of
the underlying action, ' is that the District of Columbia
' Appellant sued the Metropolitan Police Department (MPD) — and
arguably the District of Columbia —- in May 1998 alleging false arrest
or malicious prosecution. The Superior Court dismissed the suit
without stating reasons, and appellant took no appeal from the
dismissal.
3A
committed fraud upon the court by making a number of
allegedly fraudulent statements in its June 1998 motion to
dismiss his complaint. The trial court found no merit to the
claims of fraud, and neither do we. We accordingly affirm.
Rule 60 (b) allows fraud to be asserted as a basis for
relief from a judgment in two ways: by motion under Rule
60(b)(3) asserting fraud or other misconduct of an adverse
party; and by “an independent action... to set aside a
judgment for fraud upon the court.” A motion under Rule
60(b), however, must be made no more than one year after
the judgment. See Rule 60(b); Clivarius v. Stanley J.
Sarnoff Endowment for Cardiovascular Science, Inc.,858
A.2d 457, 464 (D.C. 2004). Appellant’s belated motion
plainly does not qualify for relief under that provision. Nor,
as will appear, does it meet the substantive requirements for
an independent action for fraud —- assuming, solely for the
sake of argument, that it was filed “within a reasonable
time” after the 1998 dismissal, as Rule 60(b) demands for
such an action.
Appellant contends that the District, in moving to
dismiss his 1998 suit, made three misstatements amounting
to fraud on the court: one, that he had sued only the MPD,
which is not sui juris, when in fact he also sued the Mayor
and the District of Columbia generally; two, that an earlier
complaint he had filed in Superior Court, also dismissed,
barred the present suit on res judicata grounds; and three,
that his suit was barred for failure to give the District prior
notice under D.C. Code § 12-309, when (he alleged) he
raised federal civil rights claims to which that statute does
not apply. Our decisions make clear, however, that none of
these assertions make out a claim of fraud upon the court
sufficient to meet the requirements of an independent
action.
4A
The concept of fraud upon the court, we have said,
“should be narrowly construed and ‘confined to the most
egregious cases, such as bribery of a judge or juror, or
improper influence exerted on the court by attorney, in
which the integrity of the court and its ability to function
impartially is directly impinged.’” Partnership Placements,
Inc., v. Landmark Ins. Co., 722 A.2d 837, 844 (D.C. 1998)
(citation omitted). Moreover, “[f]raud on the court... is
fraud which is directed to the judicial machinery itself and
is not fraud between the parties or fraudulent documents,
false statements or perjury. The concept refers only to very
unusual cases involving far more than an injury to a single
litigant.” Olivarius, 858 A.2d at 465 (internal quotation
marks and citation omitted). Finally, we have held that an
independent action under Rule 60 (b) is an equitable one of
last resort carrying with it stringent requirements. See, e.g.
Threat v. Winston, No. 04-CV-191, 2006 D.C. App. LEXIS
511, at *13-14 (D.C. September 21, 2006). Relief in equity
is available “only to prevent a grave miscarriage of justice”
and “equitable relief will not be granted where the plaintiff
has a complete and adequate remedy at law.” /d. at *16
(internal quotation marks and citations omitted). “[I]f a
Rule 60(b) motion is available, there is an adequate remedy
and the independent action may be dismissed.” /d. (internal
quotation marks and citation omitted).
Appellant’s claims of fraud fall well short of
meeting these standards. He alleged no bribery or improper
influence exerted on the court, and at most claimed that the
District had made questionable legal arguments or
misstatements about his complaint — matters that did not
“involv[e] more than an injury to a single litigant” and
certainly did not portend “a grave miscarriage of justice”
(indeed, the adversary process is designed to allow for
correction of such statements by an opposing litigant).
Moreover, Rule 60(b)(3) furnished appellant with an
“adequate remedy of law’, one he failed to pursue within
SA
the time permitted. Lastly, as the District points out,
appellant never opposed its 1998 motion to dismiss, nor
took an appeal from the dismissal, thus foreclosing his
claims under the principle that “an independent action for
fraud may not be entertained if there was an opportunity to
have the ground now relied upon to set aside the judgment
fully litigated in the original action.” Olivarius, 858 A.2d at
468 (internal quotation marks and citation omitted); see
also Fleming v. District of Columbia, 633 A.2d 846, 849
(D.C. 1993).
Affirmed.
ENTERED BY DIRECTION
OF THE COURT:
**s/Garland Pinkston, Jr’’
GARLAND PINKSTON, JR
Clerk of the Court
Copies to: ;
Hon. Michael L. Rankin
Clerk, Superior Court
Kenneth W. Johnson, pro se
9803 Allenford Circle, #203
North Potomac, MD 20850
Edward E. Schwab, Esq.
AGDCO
* Because appellant’s arguments in support of his motions to reconsider
are the same as those made in his Rule 60(b) motion, the trial court did
not abuse its discretion in denying those motions: See, e.g., Wallace v.
Warehouse Employees Union #730, 482 A.2d 801, 810 (D.C. 1984).
6A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
KENNETH JOHNSON,
Plaintiff, : Civil Action No. 98-3837
: Calendar 2
v. : Judge Michael L. Rankin
FILED
DISTRICT OF COLUMBIA : CIVIL ACTION BRANCH
et al : Jan 15 2004
. Pe . Supenor Coart
Defendants. : a ~~
ORDER DENYING PLAINTIFF’S REQUEST FOR
ORAL ARGUMENT AND MOTION TO VACATE
PRIOR JUDGMENT UNDER RULE 60(b)
This matter is before the court on plaintiff's motion
to vacate prior judgment and request for oral argument on
such motion. Upon consideration of the motion, District of
Columbia’s opposition, plaintiff's follow-up request, and
the record herein, both of plaintiff's motions are, this 12"
of January 2004, hereby DENIED.
Plaintiff first filed suit against the District of
Columbia, the Metropolitan Police Department, and its
officers in May of 1998, claiming that defendants had
maliciously prosecuted him in criminal court. On July 15,
1998, the court dismissed the lawsuit for plaintiffs failure
to comply with the mandatory notice requirements, as
stipulated in D.C. Code § 12-309. Plaintiff now moves this
court to vacate the judgment under Superior Court Civil
Procedure Rule 60(b) on grounds that defendant District
had defrauded the court in its opposition to plaintiff's
earlier motion.
Although Rule 60(b) permits the vacating of a
judgment when so warranted, it was specifically designed
to safeguard the finality of judgments; therefore, only in
exceptional circumstances will the court grant post-
TA
judgment relief. Lynch v. Meridian Hill Studio Apts., Inc.,
App. D.C., 491 A.515 (1985). The court, moreover, has
broad discretion with which to decide a motion to vacate a
default judgment. See Watkins v. Carty’s Automotive Elec.
Ctr., Inc., App. D.C., 632 A.2d 109 (1993).
Where, as here, the plaintiff asks the court to vacate
judgment due to fraud, he must show the following
elements with respect to defendants’ behavior: (1) a false
representation, (2) in reference to a material fact, (3) made
with knowledge of its falsity, (4) with the intent to deceive,
anid (5) action taken in reliance upon the representation.
Cobb v. Cobb, 116 WLR 1993 (Super. Ct. 1988).
Assuming the plaintiff proves all five of the above
elements, the court may then set aside the earlier decree,
even if the present case was filed well after the general
year-long limitation. Yet ii is only in “unusual and
extraordinary” or egregious circumstances, which justify
overriding the policy of finality, that the court will reverse
judgment. See Starling v. Jephunneh Lawrence & Assocs.,
App.D.C., 495 A.2d 1157 (1985). In such instances, the
court will vacate the improper judgment so long as the
plaintiff has filed his Rule 60 motion within a reasonable
amount of time —-"reasonable", here, being defined
according to the facts of the case.
In this case, plaintiff alleges that defendant District
of Columbia, and its agents, has committed fraud upon the
court by making false representations. Plaintiff, however,
offers no proof to substantiate this claim. Further, he offers
no solid argument showing that he should have been
granted judgment the first time around. As the District
points out, the plaintiff failed to meet the statutory
requirements of D.C. Code § 12-309, in that he neglected to
properly notify the mayor of his suit. Notwithstanding the
dismissal based on this statutory preclusion, plaintiff
thereafter filed a similar suit in District Court. This too was
dismissed, although its cause was failure to file within the
proper statute of limitations.
8A
In its opposition to plaintiff's Rule 60 motion to set
aside the judgment, defendant states that the motion, having
been filed much longer than a year after judgment, is out of
time and, for that reason alone, should be denied. ‘True, in
most instances the court will observe a one-year time limit
by which parties must file their motions to reverse
judgment. But, as noted above, that rule is not hard-lined,
and under extenuating circumstances the court will waive
this otherwise enforced deadline. Here, though, plaintiff has
not shown that the District has committed any fraud
whatsoever and, so, regardless of any time limitation he is
not entitled to the requested relief. *
It is so ORDERED.
**s/Michael L. Rankin’’
MICHAEL L. RANKIN
Judge
(Signed in Chambers)
January 12, 2004
Copies to:
Keiuneth Johnson
11103 Knights Court
Germantown, Maryland 20874
Holly M. Johnson
Assistant Corporation Counsel
441 4" Street, NW, 6" Floor South
Washington, DC 20001
* tn his motion, plaintiff claims that he had, in keeping with 12-309
statutory requirements, notified the Mayor of F< suit by naming him in
the complaint. Yet, as the law stipulates, mere mc. ion of the Mayor’s
name does not satisfy the statutory obligation; rather, submission of a
letter does.
9A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
KENNETH JOHNSON, :
Plaintiff, : Civil Action No. 98-3837
: Calendar 2
v. : Judge Michael L. Rankin
DISTRICT OF COLUMBIA : FIL ED
s et al., CIVIL ACTION BRANCH
Defendants. : Mas £3 2004
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION, SECOND MOTION FOR
RECONSIDERATION, THIRD MOTION FOR
RECONSIDERATION, AND MOTION TO ADMIT
VIDEO TAPE EVIDENCE
The court hereby, this 24" day of March, 2004
DENIES the following motions filed bu plaintiff in the
above-captioned case:
Plaintiff's motion for reconsideration
Plaintiffs second motion for reconsideration
Plaintiff's third motion for reconsideration
Plaintiff's motion to admit videotape evidence
Further, the plaintiff is prohibited from filing any
additional motions until further order of this court.
It is so ORDERED.
**s/Michael L. Rankin’’
MICHAEL L. RANKIN
Judge
(Signed in Chambers)
10A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
KENNETH W. JOHNSON, : ‘
Plaintiff : Civil Action No. 98-3837
: Cal. #2 J. Gardner
v. : Next Event Sched. Conf.
; : 8/21/98
"D.C. METROPOLITAN
POLICE DEPARTMENT" Toa 6 ero
(SIC) AIS
: Jul 15 1998
Defendants’ : of The Dow of Columbia
; Washington, DC
ORDER
Upon consideration of defendant District of
Columbia’s unopposed motion to dismiss plaintiffs
complaint, the record herein, it is ORDERED, that the
defendant’s motion is GRANTED, this 15" day of July
1998.
‘*s/Wendell P. Gardner’”’
WENDELL P. GARDNER
Judge
Copies To:
James A. DeVita
Assistant Corporation Counsel, D.C.
1 Judiciary Square, Room S-86
441 4" Street, N.W., 6" Floor
Washington, D.C. 20001
Kenneth W. Johnson
2122 24" Place, N.E.
Unit B
Washington, D. C. 20018
11A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
Kenneth W. Johnson
2122 24" Place Unit B NE Washington DC 20018
Plaintiff
CAL 2
v. Civil Action No. 0003837-98
D. C. Metropolitan Police Department.
300 Indiana Ave NW Washington DC 20001
(General Counsel Office) rm 4125
Marrion Barry Jr. Mayor of the District of Columbia
(or designee rm 10-S-04) and
Corporation Council of the District of Columbia (Janes
Stokes
441 4° Street. N.W., 6" Floor South, Washington, D.C.
20001
Defendants F ILED
CIVIL. ACTION BRANCH
May 21 1998
Supenor Coun
of The District of Colca
Washington, D.C
1. Jurisdiction of this Court is founded on D.C. Code
Annotated, 1973 edition, as amended, Sec. 11-921.
COMPLAINT
See Attachment
Wherefore, Plaintiff demands judgment against
Defendant in the sum of $ 100,000,000.00 with interest and
costs.
301 497-4428
Phone
DISTRICT OF COLUMBIA, SS
Kenneth W Johnson, being first duly sworn on oath
deposes and says that the forgoing is a ‘ust and true
statement of the amount owing by defendant to the
12A
plaintiff, exclusive of all set-offs and just grounds of
defense.
‘**s/Kenneth W Johnson’’
(Plaintiff — Agent)
Subscribed and sworn to before me this 21‘ day of May
1998
**s/Debra A. Cheek”’
(Notary Public/Deputy Clerk)
Debra A. Cheek
- Notary Public
District of Columbia
My Commission Expires
August 14, 2001
K.W.J. ENTERPRISES, Inc.
2122 24” Place NE
Washington, DC 20018
May 18, 1998
Dear Chief Ramsey,
This is a formal complaint of misconduct by Police
Officers and Officials working on your Department. |
would first like to inform you that a 5" District Officer with
the last name Rodrigez, I believe if this is not his correct
name I would recognize him on sight. This officer
attempted on numerous occasions to extort money from me
by threating to close down my nightclub, if I did not
comply with his demands. Secondly, my nightclub has been
frequented a numerous amount of times by an MPD Sgt.
His name is Boyle or Doyle, again if I have it wrong I
would recognize him on sight. This sergeant along with
some Officers have been harassing myself, club employees,
13A
and other people, and have in several instances created a
malicious interference to my business and that of other
businesses involved. There are several companies who
make money from these events taking place and there
employees as well as me and my employees, adding up to
lots of people job’s are being affected as well as companies
income. Note: in all the years that I have been in business
there has only been to date one arrest of any customer of
mine which was in the bathroom. I have done everything I
could think of to combat any illegal activity. | have wrote
the Chief of Police Office requesting them to allow me to
have off duty police. I have submitted names of police
officers, Lieutenenants, Sergeants, who want to work for
me in there spare time. I have purchase $2,400.00 in
insurance to cover the DC Metropolitan Police Department
against lawsuits as they require to hire there police. | have
hired armed SPO companies, I have hired Club Security
Personnel. I have posted flyers at Police Stations to hire off
duty police and I have personally encouraged police
officers countless times to do there jobs and arrest any
person they see in or about my club doing anything illegal.
On one occasion for example, this past Friday, which was
May 15, 1998, the Sergeant Boyle came into my nightclub
ordered me out of my ticket booth as I monitored the
band’s cashier collecting money, of which % is paid to me.
He then told me that he smelled marijuana in the air in my
club. I told him then he needs to arrest anybody he see with
any drug or doing anything illegal, after all he is a police
officer and has that responsibility. He states to me that if he
smells it again he is going to throw my customers into the
street, keep in mind we’re talking about hundreds and
hundreds of people at one time and shut my club down
causing thousands and thousands of dollars to be lost at one
time that evening alone, not to mention the long term
damage it will cause in these people not returning to my
business to patronize it, were talking liquid damages in the
hundreds of thousands of dollars and even millions if
14A
sustained long enough. Also, out of all these people and the
Sgt. Boyle and his officers probing throughout my
nightclub on every visit they did not lock up not one
person, there are as many as 300 people in my place at one
time and through the course of a night there can be as many
as 500 hundred coming in and out. To spite my efforts, I
have been harassed and my business maliciously interfered
with, band members, myself, customers have been forced
to give there names to the same people over and over again.
This Sgt. Boyle has made a habit of threating me even
though he himself has not caught anyone doing anything
that he can arrest then for, | don’t have a gun or a badge or
a police radio, nor do | have his authority to handcuff an
arrest people. I cannot take any more threats from this man
nor can | allow people jobs to be destroyed because of this
Sergeant and other officers: This Sergeant has me terrified
to leave my business at 3:00am or 4:00am when it closes,
given the history of this and other experiences. | am
concerned that in an act of retaliation this man might try to
plant some drugs on me or at my business. I should not
have to live with these fears. | have a business that is not
only legal but is licensed by the DC Government and | have
all of the Licenses and Occupancy permits needed to
Lawfully operate my business. My right to do so is being
breached by your employees, please do something about it
before more damage is caused.*‘s/Kenneth W_Johnson’’
Kenneth W. Johnson CEO/President
As of May of 1997 I was falsely arrested. | was charged
with Operating a Disorderly House, I was later acquitted of
the only charge which again was operating a disorderly
house. I had the same judge for trial as the one who signed
off on my arrest warrant and even though I had no jury he
even said no way not guilty. He found that in the three
elements necessary to charge me with this crime, two of
them did not exist the only one that existed is the
government having to prove that the business belong to me
ISA
and certainly we do not dispute that | am the owner of the
nightclub through my corporation (Corporate President).
The judge told the prosecution that in so many words that
he struggled not to acquit me base on the prosecutor’s case
alone. The prosecutor tried to convince the judge they had
the right to prosecute me, there is a lot of evidence of
wrong doing on the part of the police department in my
trial and should be in my transcripts, I will order them
soon, I have been told it could take up to six months
especially since my trial was tape recorded with no court
reporter present. I hope the government won’t try to destroy
or alter these transcripts in an attempt to limit the
consequences of there actions. In addition, to being
humiliated by being arrested in front of my nightclub, all of
my customers hundreds and hundreds of them were treated
unfairly, the police were ordering everybody out as they
raided my place. They were all over the street and all over
the inside of my club. Prior to this the police department
call my Landlord in Virginia Beach, VA and asked for a
copy of my lease, which is none of there business and
clearly an invasion of my privacy, then told him I was a
drug dealer and that | was using his place for illegal
activity, think how this made me feel here I have never
done anything illegal in my life. I don’t even smoke or
drink at all. Furthermore, I am licensed by the DC
Government to operate my business and | have all the
permits and licenses to conduct my business. I had to here
all these false accusations from my Landlord’s son and be
threaten to have my lease terminated as this was my only
source of income, you can imagine the fear and stress I
went through, being threaten for lies that had been told by
the police. The police came in and took all my business
records and has yet to return them almost 6 months to date
after | won my case. They took $1,700.00 dollars out of my
pocket the night they arrested me some of the meney |
made that night, that I needed to pay my rent creating
another hardship for me, it took a court order from a judge
several months after I won my case to get that money back,
they knew I had a legal business that the money was earned
legally, but took it anyway. The prosecutor never tried to
use it against me in court, they just felt they had an excuse
to rob me of my money and could get away with it. My
defense was based on that what the government is
describing to the judge is not even a crime our defense was
that even by the government’s position if you take
everything there saying happened they way they said its
still not a crime on my behalf. The government was saying
stuff like, if there is a homicide a block away from my
nightclub that nobody knows is going to happen that has
nothing to do with my own personal actions that I am not
even aware of, that know I’m a criminal because 1 own a
business up the street. | never heard of something so
ridiculous and neither did the judge as he acquitted me,
scolded the police department saying if they spent half the
time trying to stop these crimes as they did trying to
shutdown my nightclub, we wouldn’t have these problems.
They set up cameras’s ouside my club, video tape my club,
ran undercover in and out of the 500 people approximately
a night overall those months of doing these things the
police caught and locked up one person smoking in the
bathroom in fact in all the years I have been in business this
is the only arrest of a customer. I have done everything
from spending $1,200.00 a year on a issurance policy that
insures the police department against lawsuits, so I can hire
off duty police as the police department requires to hire
there police. { have wrote a lot of letters to the chief of
police requesting police assistances. I have passed out fliers
at police stations but the officers who want to work for me
get turned down by the department. [ have hire private
security company and club security, which the police
admitted. We have very thorough security at my club. We
even make people take off there shoes and empty there
pockets to get in, we can strip search people so it is not an
invincible system, if a girl puts something in her bra or a
17A
guy in his pants we are not going to violate our customers
tights, to satisfy the police but we do all we can. The police
want to seek revenge against me and this is how they are
trying to do it. [ am so scared that they are going to try to
plant something on me or my business that I am afraid to
go to and leave my business. I should not have to live like
that when I am doing nothing wrong, nothing they have
done has worked so they can’t stop me from making legal
money so the next thing is to frame me, which | am
thankful that they have not done yet. I can remember Det.
Hagerdy telling me as we drove to the station after my
arrest you know you don’t get know jury for this and then
laughing as though my life was some cat and mouse game
the police were playing. After this devastating experience
my customer base collapsed, all my income stopped from
this incident from my nightclub. I lost a deal on a car
dealership that was in the works as I struggle to save and
rebuild my nightclub. The police have harassed me by
constantly asking me and the band how much money we
make. I was maliciously prosecuted. I had to go out and
pay for a lawyer. After winning my case in December
1997, I am still being harassed by the police department in
the same ways pursuant to my acquittal as outlined in my
complaint against Officer Rodrigez and Sgt. Boyle and
other MPD Officers dated May 18, 1998. I have suffered
economic harm, and emotional distress.
On October 7, 1994, I had left my vehicle directly in front
of 2122 24" Place, N.E., Washington, DC, which is a
building being leased by my corporation. The vehicle was a
1990 Mercedes 300E. Sometime that night I road home
with my girlfriend Catrina, I was to tired to drive myself
home. Then next morning at about 12:00 or 1:00 p.m., I
had returned with Catrina and a building inspector, as |
approached my car in Catrina’s car I observed two police
lieutenants in which I do not know standing outside my car,
both were tall white males approximately 220lbs. I would
I8A
recognized them by sight. At any rate one of these two Lt.
order me to pull over and step outside Catrina’s car in
which | did, he approached and stopped me at Catrina’s
driver side door, just after I stepped out of the vehicle. He
stated that they had searched my vehicle prior to my
arrival. I stated to him what is the problem and why did you
search my vehicle while I was gone. He stated to me that he
found a lot of receipts in my car and demanded to know
what I was doing with a lot of receipts in my car, he further
more stated that he knows I was suspended for a year
without pay and demanded to know where | got the money
to be buying a lot of things. . I stated to him that did he
know that I my car in court and was found not guilty by
virtue of self defense and that I had a police trial board
hearing in which two police captains (Wisemen, and
Brown) and a police inspector (Lingerfelt), who concurred
with the courts after hearing the evidence and concluded
that no disciplinary action what so ever would be taken
against me. I went on to state that did he know that a few
months ago the department back paid me for tine on
suspension in one lump sum of about $26,000-$27,000. He
demanded over and over again an answer as to why I had
receipts in my car. I said to him Lieutenant is there
semething illegal about having receipts in my car. He stated
that I look suspicious and that he might impound my car for
an administrative investigation, which I thought to myself
how can you take someone’s car because you employee
them and for no other reason than an administrative
investigation. I stated to the Lt. that I have done nothing
wrong. He stated to me that he found a stack of credit cards
and we might have a possible credit card fraud. | stated to
him that well Lt. aren’t all the credit cards in my name, he
paused and thought about it and said well maybe you
reported them stolen and charged on them afterwards, I said
well if | had reported them stolen the first thing the banks
would do is cancel them rendering them useless, so that
dosen’t make sense. Also, | told him that they were already
19A
canceled because I couldn’t make payments on them
because of my one year suspension and attorney fees. He
was fishing and trying to come up with anything. | asked if
I could see these receipts and see how old each was and
how much they were for, I explained that I have a lot of old
receipts in my car, nevertheless, he would not let me go to
my car after | had requested to be allowed to retrieve and
look for in an effort to retrieve these receipts. He denied me
this. I then reached in my girlfriend Catrina’s car and took
out my keys and stated to the Lt. that I am going to let the
building inspector in to my building, in which he didn’t
object so I went to my front door and unlocked it, the
building inspector was so alarmed at my interrogation by
the Lt., that he though I had done something wrong. He
said he was not going in, I said to Lt. look what you have
done you have me all upset and the building inspector ail
upset, he thinks | have done something wrong, and all
because I’ve got receipts in my car and because I have a lot
of credit cards. The building inspector spoke up and said
I’m not scared anymore, I see whats going on now, what
they are doing to you is wrong, you should take legal action
against them. | stated that its know way all this could be
because of no receipts, I said to him is it because you all
don’t want me to open a business and make a lot of money.
I’m under the strong impression that this is being prompted
By jealously, the fact that here the low man on the totum
poll just an officer, is trying to open his on business and
brighten his financial future and spiritual future, and a
black man at that. At least in my eyes this seems like a
much more logical reason all though equally as wrong for
what happened to me that my privacy was being violated
by non consential searches and falsely accused of erroneous
and ludicrious accusations. Non-consential searches of my
car as weil as my building, or rather the building of the
corporation to which I am a stockholder and formally
represent. Which brings me to the building shortly after I
unlocked the door for the building inspector and him only
20A
and after argument in sued between myself and Lt. he and
an officer took it upon themselves to rush inti my building
and conduct a search while I was to stand out on the front
with another Lt. who advised me that the inspector was on
his way. When the inspector got on the scene he at some
point approached me and the two Lts. By this time the one
who did the search with the other officer had come back
out just prior to inspector Behilia’s arrival I began to
explain the inspector in so many words stated that he was
not concerned about the past things that the Lt. brought up
about my back pay and all that. He asked the Lt. had I done
anything criminal and the Lt. said no, so then the inspector
said well then let him go, let him go. Also, they had called
Lt. Metillo from the second district, which is wgere I am
employed as a police officer, to respond to the scene. He
apparently was briefed by the other Lt. because he ordered
me to hand over my credit cards, in which I complied he
then returned them to me after about 15 minutes. | would
also like to add that | remember distinctly locking my car
door as | always do and my girlfriend remembers me doing
it before I left. | never leave my car unlocked not only did I
lock my doors, but I secured by steering wheel and brake
with a device similar to the club people use in there car,
this device locks the steering wheel to the brake, this device
was still placed and locked to my brake and sterring wheel.
All of my personal papers were all over the floor from the
search of my glove compartment, nothing was stolen and
no windows were broke or any other physical damage other
than the driver side lock cylinder being missing, which still
locks automatically with the other locks and this damage
was already present prior to me parking my car. This makes
it hard for me to believe someone else other than the police
broke into my car prior to there search, just to take nothing
not even one of the ten credit cards the Lt. was so
concerned about. Also, my glove compartment was still
open with ail the prior contents of it displayed all over the
floor of my car. It had been ramsaked, it was not left in this
21A
order. I stated to the Lt. prior to me seeing the inside of the
car that sometimes I know I might have some receipts lying
around in the car in somewhat of a fashion. This was far
beyond that I also would like to state that the Lt. told me
and the building inspector that the reason he was at my
building was that a burglar alarm was going off in the
building. The building inspector and I said him well how
come we didn’t here it. He certainly doesn’t have a code to
turn it off. | went back to the second district and with some
help did a computer check which revealed that no call for a
burglar alarm was ever received by the police department
or assignment dispatched to 2122 24" Place, N.E.,
Washington, D. C. or even one in 2100 block of 24" Place
on that day being October 8, 1994. I also explained to the
Lt. that legally this building is not being leased by me the
lease is between the landlord and a corporation in which I
own stock and at such time that it is converted in to a
business it will be a business owned by that corporation and
not and individual since by law a corporation is view as a
separate entity and stockholders do not own the assets and
the stockholders own stock. Nevertheless, I believe it says
in the 14" Amendment that all U.S. citizens are entitled by
right to the right of free enterprise and it also addressed that
corporations have the right under the U. S. constitution to
free enterprise and to own and operate a business | will
make it a point in the near future to obtain a copy of the
14" Amendment and read it thoroughly so that I maybe
able to speak on this subject with more precisiveness and
will have a clearer focused understanding of this right as set
forth and how they may apply to me by the 14 amendment
and alleviate any misconceptions that | might have, If |
have any. I would also like to say that the inspector Behila
told me that he had been hearing in community meetings
about the business I had proposed at 2122 24" Place, N.E.,
and that he though it was a good idea. With exception of
this last comment by inspector Behila. This experience has
depressed me and made me feel violated. It makes me
22A
wonder how far individuals on the police department
primarily officials will go. It makes me think that the next
time an official might try to plant something illegal on my
property, or something out of spite or jealously or racial
prejudice just to try to bring me down or as a retaliation to
me taking a stand against what happened any future
occurrences. Without a doubt I feel my civil rights were
violated. | was restricted from movement from the scene
and was not allowed to enter my building or my vehicle I
was deprived of my right to go about my way, my freedom
was taken away until the inspector Behila order that Lt. let
me go and even after the inspector left or disappear from
my sight or my awareness of his presents, I was still made
to remain. My freedom was further taken from me as I was
ordered to give up my credit cards and remain on the scene
which I felt | had been arrested, my right to leave under my
own will had been taken from me all though I was not
handcuffed. | was order to remain on the scene, | was
ordered not to go into my building, | was ordered not to go
to my car or near it. | was told I was a suspect for
something I did not do, I was threaten that my car would be
impounded for an administrative investigation and not
aloud the return of my right to freedom and free to move on
until shortky after the inspector Behila order that | be let go
twice (Let him go, Let him go), I quote the inspector, and
further interrogation, as | was interrogated throughout this.
_ In addition, tre Lt. that | do not know him or his name, who
I have been speaking of also questioned me at the end
about how much money is my car note, I told him | pay
$1,900.00 a month after taxes. This has compromised my
piece of mind, I feel like I have been targeted by police
officials and eventually they are going to railroad me even
if they have to break the Law to do it. I can’t even function
on my job correctly wondering constantly if my job will be
sabotage or some officials will constantly do me on the job
for anything possible or have someone do it because of
what I am trying to accomplish. I definitely know | have
23A
been targeted. I feel my job is an unsafe place to work, a
place of treachery and dishonest and contempt against me. |
wish to make a formal complaint of unlawful search and
seizure of my car and my building and unlawful arrest,
violation of my civil rights, harassment, and defamation of
character along with mental anguish, pain and suffering,
and racial discrimination. I would like to say that the onr
Lt. who’s name I do not know of I think I saw the name
smith the on his name tag, although I’m not sure but I
definitely know him if I saw him.
1.
>
3.
_
It.
I cannot sleep
I want to request stress leave but to scared to.
I cannot function on my job properly because of
flashbacks constantly wondering where or rather
when I will finally be railroad.
How long I can survive before being set up or frame
because of hate prompted by racial injustice and
jealously
I cannot sleep at night wondering what will happen
next, my nerves are shot because of my job and
existence threatened.
My driving is effected when flashbacks of what
happen occurs such as driving around the same
block 7 to 10 times.
I mentally blanking out while driving.
I notice myself trembling, it is hard to keep my
hands still when I’m thinking or having flash backs
about what happen and that maybe in store for me.
Even my breathing is effected during the stressful
periods brought on by this.
. | blankout when walking through stores, I worry
about when they finally railroad me what effect it
will have on me and my family, and how will they
survive without me and how will I survive after this.
| am afraid to come to work.
12.
13.
24A
I am afraid and terrified togo to my building that my
corporation is leasing and that I am the president of
at 2122 24" Place, N.E.
I feel unsafe and terrified there if I don’t have
someone with me as a witness if the police officials
come back and do something to me. I am terrified to
leave my car unattended for fear that they will break
in or jimmy the locks and invade my privacy, try to
plant drugs or damage my car or do the same to my
building.
25A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
Kenneth W. Johnson )
)
VS. ) No. 98CA003837
) FILED
DC Metropolitan Police Department, ) | ova HL ED
et al. ) |May 27 1998
) of tote ota ruta
Washington, oc
AFFIDAVIT OF SERVICE
to wit: Washington, DC )
I, RONALD A. MURDOCK, II, having been duly
authorized to make service of the Summons, Complaint,
Initial Order, Memorandum dated May 18, 1998 direct to
Chief Ramsey, General Order Concerning motions
Procedure Effective January 1, 1998 and Notice of Hearing
in the above entitled case, hereby depose and say:
That my date of birth is 12-27-72.
That my place of business is 1827 18" Street, N.W.,
Washington D.C. 20009-5526.
That at 10:27 am on May 22, 1998, I served Marion
Barry, Jr., Mayor or the District of Columbia at 441 - 4"
Street, N.W., 6" Floor, Washington, D.C. 20001 by serving
Herman Bunch, Staff Assistant in Mayor’s office,
authorized to accept. Described
SEX- MALE
AGE- 30
HEIGHT- 5°10”
HAIR- BLACK
WEIGHT- 160
COLOR- BLACK
26A
I do solemnly declare and affirm under the penalty
of perjury that the matters and facts set forth herein are true
to the best of my knowledge, information and belief.
**s/Ronald A. Murdock, II’’
RONALD A. MURDOCK, II
Our File#- 34376-01
SUBSCRIBED and SWORN to before me this 26" day of
May, 1998.
**s/Denise L Daldm’’
NOTARY PUBLIC
My commission expires: 11-30-01
27A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
Kenneth W. Johnson )
)
vs. ) No. 98CA003837
)
DC Metropolitan Police Department, ) FILED
CIVIL ACTION BRANCH
et al. ) May 27 1998
) | eee
Washingion. D.C
AFFIDAVIT OF SERVICE
to wit: Washington, DC )
)
I, RONALD A. MURDOCK, II, having been duly
authorized to make service of the Summons, Complaint,
Initial Order, Memorandum dated May 18, 1998 direct to
Chief Ramsey, General Order Concerning motions
Procedure Effective January 1, 1998 and.Notice of Hearing
in the above entitled case, hereby depose and say:
That my date of birth is 12-27-72.
That my place of business is 1827 18'" Street, N.W..,
Washington D.C. 20009-5526.
That at 10: 30 am on May 22, 1998, I served
Corporation Council of the District of Columbia c/o Janice
Stokes at 441 — 4" Street, N.W., 6" Floor, Washington,
D.C. 20001 by serving Donice Hancock, Receptionist to
Corporation Counsel, authorized to accept. Described
herein: E
SEX- FEMALE
AGE- 32
HEIGHT- 5°10”
HAIR- BLACK
WEIGHT- 140
28A
COLOR- BLACK
I do solemnly declare and affirm under the penalty
of perjury that the matters and facts set forth herein are true
to the best of my knowledge, information and belief.
**s/Ronald A. Murdock, II’’
RONALD A. MURDOCK, II
Our File#- 34376
SUBSCRIBED and SWORN to before me this 26" day of
May, 1998.
**s/Denise L Daldm’’
NOTARY PUBLIC
My commission expires: 11-30-01 .
29A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
Kenneth W. Johnson )
)
vs. ) No. 98CA003837
)
DC Metropolitan Police Department, ) € i L F D
et al. ; May 27 1998
att
AFFIDAVIT OF SERVICE
to wit: Washington, DC )
)
I, MARTIN CARROL, JR., having been duly
authorized to make service of the Summons, Complaint,
Initial Order, Memorandum dated May 18, 1998 direct to
Chief Ramsey, General Order Concerning motions
Procedure Effective January 1, 1998 and Notice of Hearing
in the above entitled case, hereby depose and say:
That my date of birth is 01-16-59.
That my place of business is 1827 18" Street, N.W.,
Washington D.C. 20009-5526.
That at 12:29 pm on May 26, 1998, I served DC
Metropolitan Police Department at 300 Indiana Avenue,
N.W. Washington, D.C. 20001 by serving Ms. Clark,
Subpoena/Warrents Clerk, authorized to accept. Described
herein:
SEX- FEMALE
AGE- 35
HEIGHT- 5°10”
HAIR- BLACK
WEIGHT-_ 145
30A
COLOR- BLACK
| do solemnly declare and affirm under the penalty
of perjury that the matters and facts set forth herein are true
to the best of my knowledge, information and belief.
**s/MARTIN CARROL, JR.”’
MARTIN CARROL, JR.
Our File#- 34376-02
SUBSCRIBED and SWORN to before me this 26" day of
May, i998.
a
**s/Denise L Daldm’”’
NOTARY PUBLIC
My commission expires: 11-30-01
31A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
KENNETH W. JOHNSON, :
Plaintiff : Civil Action No. 98-3837
: Cal. #2 J. Gardner
Vv. : Next Event Sched. Conf.
: 8/21/98
"D.C. METROPOLITAN
POLICE DEPARTMENT 3 ILED
(SIC) . CIVIL ACTION BRANCH
Jun 22 1998
Defendants =: of The Disuict of Colemsbia
; Washmgion, D.C
DEFENDANT DISTRICT OF COLUMBIA’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT,
OR IN THE ALTERNATIVE, FOR SUMMARY
JUDGMENT
Pursuant to Superior Court Rule of Civil Procedure
12(b)(6) and 56, defendant District of Columbia moves this
Honorable Court to dismiss plaintiff's complaint, or in the
alternative, grant summary judgment in defendant’s favor.
Defendant is entitled to dismissal or summary judgment
because: 1) the District of Columbia Metropolitan Police
Department is not a sui juris entity; 2) this claim is barred
by issue preclusion, collateral estoppel and res judicata; and
3) plaintiff has failed to satisfy D.C. Code Section 12-309.
In further support of this motion, defendant refers
this Court to the memorandum of points and authorities
attached.
Respectfully Submitted,
32A
John Ferren
Corporation Counsel, D.C.
Martin Grossman
Deputy Corporation Counsel, D.C.
Civil Division
Arabella W. Teal
Chief, General Litigation Section I
By: ‘‘s/James A. DeVita’’
James A. DeVita #370578
Assistant Corporation Counsel, D.C.
| Judiciary Square, Room S-86
441 4" Street, N.W., 6" floor
Washington, D.C. 20001
202-727-6295, ext. 3409
Certificate of Services
I hereby certify that a copy of the foregoing Notice
of Hearing was mailed, this 19" day of June, 1998, to:
Kenneth W. Johnson
2122 24" PI. N.W., Unit B
Washington, D.C. 20018
‘*s/James A. DeVita’’
James A. DeVita
AssistantCoporation Counsel, D.C.
33A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
KENNETH W. JOHNSON, :
Plaintiff : Civil Action No. 98-3837
: Cal. #2 J. Gardner
v. : Next Event Sched. Conf.
: 8/21/98
"D.C. METROPOLITAN
POLICE DEPARTMENT"
(SIC)
Defendants
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANT’S MOTION TO
DISMISS , OR IN THE ALTERNATIVE, FOR
SUMMARY JUDGMENT
PRELIMINARY STATEMENT
On May 21, 1998, plaintiff filed his complain in the
above-captioned matter alleging, inter alia, that he was
subjected to harassment by the District of Columbia
Metropolitan Police Department. On May 22, 1998,
plaintiff filed a virtually identical complaint in the case of
Johnson v. O’ Boyle C.A. 98-3875, in which he also alleged
that he was the victim of police harassment. (A copy of the
complaint in Johnson v. O’Boyle, C.A. No. 98-3875 is
attached hereto as Exhibit # 1). On May 26, 1998, a hearing
was held on plaintiff's motion for a temporary restraining
order in the O’Boyle case. At that hearing, Judge Zinora
Rankin denied plaintiffs motion for a temporary
restraining order and dismissed plaintiff's complaint with
prejudice.
34A
The only defendant that plaintiff has named in the
instant case is the Metropolitan Police Department. Plaintiff
has failed to provide Mayor of the District of Columbia
with notice of his claim as is required by D.C. Code
Section 12-309. (See the affidavit of Tonia Robinson
attached hereto as Exhibit #2). Defendant’s favor.
As demonstrated below, the District of Columbia is
entitled to dismissal and/or summary judgment because: 1)
the District of Columbia Metropolitan Police Department is
not a sui juris entity; 2) this claim is barred by issue
preclusion, collateral estoppel and res judicata; and 3)
plaintiff has failed to satisfy D.C. Code Section 12-309.
ARGUMENT
1. The District of Columbia Metropolitan Police
department is not sui juris entity.
Plaintiff's complaint must be dismissed, or, in the
alternative, summary judgment must be entered in favor of
defendant because plaintiff has not amed a sui juris entity
as a defendant. Hinton v. Metropolitan Police Department,
726 F. Supp. 875 (D.D.C. 1998). Since the District of
Columbia Metropolitan Police Department is only an
agency of the District of Columbia government, it is not an
entity that can be sued in its own right. Id.
2. This claim is barred by issue preclusion, collateral
estoppel and resjudicata,
Since the instant complaint is virtually identical to
the complaint with was dismissed with prejudice in
Johnson v. O’ Boyle, C.A. 98-3875, plaintiff's claim in the
instant case is barred by the doctrines of issue preclusion,
collateral estoppel and res judicata. Johnson vy. Fairfax
Village Condo. TV 641 A.2d 495, 503 (D.C.App. 1994).
35A
3. Plaintiff has failed to satisfy D.C. Code Section 12-309,
Plaintiff's common law claims for false arrest and
police harassment must be dismissed or summary judgment
granted due to plaintiff's failure to provide the District of
Columbia with notice of his claim within six months of the
date upon which he suffered injury. D.C. Code Section 12-
309 (1995 Kep!. Volume). District of Columbia Code 12-
309 provides:
‘An action may not be maintained against the
istrict of Columbia for unliquidated damages to
person or property unless, within six months after
the injury or damage was sustained, the claimant ,
his agent, or attorney has given notice in writing to
the Mayor of the District of Columbia of the
approximate time time, place, and circumstances of
the injury or damage. A report in writing by the
Metropolitan Police Department, in regular course
wt duty, is a sufficient notice under this section.”
The purpose of this notice requirement is to ensure
that District of Columbia officials are given prompt notice
of claims for potentially large sums of money so that they
can 1) quickly investigate before evidence became lost or
witnesses unavailable; 2) correct hazardous or potentially
hazardous conditions and 3) settle meritorious claims.
Gwinn v. District of Columbia, 434 A.2d 1376, 1379 (D.C.
1981). This notice requirement is mandatory and if there is
no timely written notice, plaintiff is precluded from
litigating his claim. Id.
In the instant case, plaintiff clearly failed to send a
notice letter to the Mayor of the District of Columbia
within six months after his May 17, 1997, arrest date as
required by D.C. Code Section 12-309. (See the affidavit of
Tonia #otinson attached hereto as Exhibit #2). Given
plaintifi’s faiture to submit a letter to the Mayor within the
time period required by D.C. Code 12-309, the District is
entitled to dismissal and/or to summary judgment with
respect to plaintiff's common law claims for false arrest.
4. Conclusion
In conclusion, defendant respectfully request that its
motion for dismissal and/or summary judgment be granted
for all of the reasons noted above.
Respectfully Submitted,
John Ferren
Corporation Counsel, D.C.
Martin Grossman
Deputy Corporation Counsel, D.C.
Civil Division
Arabella W. Teal
Chief, General Litigation Section I
**s/James A. DeVita’’
James A. DeVita #370578
Assistant Corporation Counsel, D.C.
1 Judiciary Square, Room S-86
44) 4" Street, N.W., 6" floor
Washington, D.C. 20001
202-727-6295, ext. 3409
37A
SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA
CRIMINAL DIVISION
---X
UNITED STATES OF
AMERICA
ve - -M 7630-97
KENNETH W. JOHNSON
Defendant.
4
Washington, D.C.
December 12, 1997
The above-entitled action came on for a hearing before the
Honorable RONALD WERTHEIM, Associate Judge, in
Courtroom Number 45.
APPEARANCES:
On behalf of the Government:
NEIL MCBRIDE, Esquire
Assistant United States Attorney
On behalf of the Defendant:
ROBERT MANCE, Esquire
Washington, D.C.
Recorder:
Jacqueline Hogue
Official Court Transcriber Telephone: 879-1757
38A
misses the point. | mean, Mr. Johnson is making money at
this club. The only evidence that we have is the testimony
or documentary evidence in this case is the exhibit, the
door sheet, that was introduced by the Government that I
asked Mr. Johnson about. On the evening in question 75
people paid five dollars, 101 people paid ten dollars, 350
people paid fifteen dollars. By my math, Your Honor, that’s
$5, 250 just for those individuals. 1 don’t know if there
were more that night but $5,250.
Now, Mr. Johnson said, and if we are to credit his
testimony in this respect, well, the band subtracted their
costs and then | took half of what was left. Well, on that
particular night there were $5, 250 in gate receipts. There
was rounded up, $1,500 for the band, which leaves an
amount that when defendant shared, Mr. Johnson’s share
for half of that, what was remaining would have been
$2,557 for that night. That was his half that remained after
the band expenses were deducted, one night over — a little
over $ 2500 which is by my math about $5100 for
weekend, which for a year, give or take, is over $250,000.
Your Honor, as the —
THE COURT: That’s almost as much as lawyers
make.
MR. MCBRIDE: Similar, Your Honor, yes. As the
Raleigh case said, Your Honor, while a bawdy-house —
quote, while a bawdy-house may prove profitable to its
operator, its existence scarcely enriches either specific
neighborhood in which it is located or the overall
community. And I would suggest that that is what
happened here. Mr. Johnson may have been doing well by
- the club, but the ten people who were shot, weren’t doing
well by ihe club. The neighbors whose property were
trashed, weren’t doing well by the club. The young people
that came to this club for entertainment and otherwise,
werefi t doing well, it certainly wasn’t a good example —
good environment for them.
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And my last point, Your Honor, and then | will sit
down, is Mr. Mance said that this case is unique, that
there’s no other recorded cases like that. I believe that is
true insofar as there — as we have said, very few disorderly
houses case prosecutions from this century, most of them
have been under the bawdy prong and statute. But the
disorderly prong still remains.
Mr. Mance wants to wrong away from the fact that
Harris notwithstanding that it’s dealing with the statute
looks to common law and looked to common-law in
considerable depth to see how it should be guided. So while
this case may be different, Your Honor, from what
happened in 1837, times change and this law, while short in
words is crafted in a way that it can move with the time.
The Raleigh court said it’s a very broad statute. Your
Honor, the Government submits that it is broad enough.
The disorderly prong of this statute is indeed long and
broad enough to apply to an establishment like the Taj
Mahal that when taken together there’s this synergy of
events and incidents, things that have happened that
indicate it is a criminal nuisance that is a nuisance it is a
place which ~ a magnet for activity which disrupts the
public peace and order. corrupts the public morals. And for
all these reasons, Your Honor, the Government asks that
you find Mr. Johnson guilty of maintaining a disorderly
house at the Taj Mahal.
Thank you.
THE COURT: Thank you, counsel.
It is correct that the specific facts are almost entirely
undisputed in this case, and that’s very rare for a criminal
case in my experience. It is also true that this is a criminal
case which requires proof of the essential elements of an
offense beyond a reasonable doubt. It also means that mens
rhea is an element of guilt. Some kind of mental state that
the law finds wrongful that must be found before a
convictions can be entered.
40A
1 mention that in taking up first the question of the
third element set out by Harris that the proprietor knows or
should know of the acts and does nothing to prevent them. |
suppose, taken literally, as the Government suggests, it
can’t be sufficient that the mere waving of a hand is enough
to defeat that requirement. | think it is elaborated a little
further later in the Raleigh case, which is more recent,
although not much. There the Court quotes from an old
D.C. case that suggests that the requirement is that the
defendant either procured it, that is, the unlawful act to be
done or permitted it to be done or did nothing to prevent it.
In any event, Harris does state the law of the jurisdiction. It
is an en banc decision. The instruction 4.95 the
Government referred to yesterday, has set forth the
elements of operating a bawdy-house not the elements of a
disorderly house.
Now, Harris says the Government must prove first
that acts take place on the premises that disturb the public
or constitute a nuisance per se. And nuisance per se is to
find as in the nature of a gambling house or a bawdy-house.
The acts that either disturb the public or constitute a
nuisance per se must be acts that take place on the
premises. And I find that that requires the Court to make a
clear distinction between activities that occurred inside the
Taj Mahal and Those that occurred out on the street.
It is not and was not during the period in which this
offense was allegedly committed the responsibility of Mr.
Johnson or of any other private citizen to police the
neighborhood of the Taj Mahal Club. It was the
responsibility of the Metropolitan Police Department to do
that. Their utter failure to perform that responsibility does
not transfer the blame to Mr. Johnson. Mr. Johnson had no
authority to police that area and would have subjected
himself to great risk had he even attempted to do so.
Most of the acts of which the Government -
complains and certainly those to which neighbors complain
were acts that took place outside the premises. Now, what
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took place inside the premises? Up to five hundred young
people, perhaps as many as three hundred at any one time
occupied these premises and listened to music of the type
that they happened to enjoy and danced. They were search
before they went in. On four occasions when officers
entered the club —well, on those four occasions there was
only one time that any officer saw illegal activity, and that
was the occasion when a juvenile came out of the restroom
smoking a marijuana cigarette. Even that activity, the
juvenile apparently thought it necessary to go hide in the
restroom rather than commit it out openly in the larger
room. The undercover officer saw no illegal activity.
Detective Haggerty saw no illegal activity. No one saw
illegal activity during the four times that the police entered
this club other than that one marijuana cigarette.
Now, much is made of the snow. One witness said
the snow was worst on a March visit. It was less on the next
visit and even lesser on the third visit. What was found
when the place was search? A few blunts, six items that
were submitted to the DEA for analysis. Two out of the six
were found to contain illegal drugs. That’s totally Less than
four ounces of — I mean, four grams of marijuana and less
than one gram of cocaine in a place occupied by up to five
hundred young people that was dark and where their
activities would be unobserved.
In the Court’s view that ts a rather petty yield for all
the efforts that the Government or the police department
put into its efforts to build a case against the Taj Mahal
Club. It hardly is enough to say that the club was regularly
resorted to for the commission of thee acts. It was regularly
resorted to listen to music and to dance. And as a defense
has contended there is nothing unlawful about that activity.
It’s certainly not a nuisance per se even though some
people might in their personal opinion find it objectionable.
The Government’s argue that the connection to the
activities outside is a responsibility of Mr. Johnson because
those unlawful activities, the trashing of the neighborhood,
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the shootings and so on would not have happened but for
the existence of the Club. In the Court’s view, such a but
for test is contrary to the claimant that every element of an
offense be proven beyond a reasonable doubt and that mens
rhea is required for conviction of the criminal offense.
It is equally true that this activity outside would not
have happened but for the Metropolitan Police
Department’s neglect of it’s duties in this neighbor hood.
Ten shootings in ten months, numerous cars broken into or
windows broken, cars stolen, all the other stuff that we’ve
heard about I’ve not in four, five — four days of trial heard
of a single instance in which a police presence was effected
during the hours of operation of this club. The police were
much more interested in trying to patch together a case for
closing down the club than they were in preventing the
activity of which the Government now complains. | think
the Government’s argument that the activity emanated from
the Club is a little bit too metaphysical.
We don’t know whether the people who committed
these offenses ever were in the club in most instances. And
they certainly unlike the cases that the Government relies
upon, there is no way of showing, for example, as in the old
Skylark case that it was a consumption of some substances
on the premises that led to the individuals behaving in the
way they did after they left. That’s also why the dam
analogy that the Government makes, doesn’t work. There
was water that came through that dam and did damage. But
there is nothing that came out of this club and did damage.
In order to find this Club a nuisance, the Court would have
to conclude that it is unlawful to cater to young people and
to their taste in music at hours of the night when it is not
unlawful in this city for them to be out. That is — would
come close to being a cultural discrimination. In any event,
the Court believes that it erred in denying the defense’s
motion for judgment of acquittal at the end of the
government’s case and it grants that motion at this time.
Parties mat be excused.
43A
1 wish there were a way you could appeal because
it’s a close question, Mr. McBride, on the law and it would
be interesting to see what the Court of Appeals does with it.
I will state that it’s my view that the law requires an
acquittal and had the issue been framed in such a way that
it would have permitted an appeal, I would have been glad
to see it go upstairs. And I should add, also that it was well
tried by counsel for both sides.
MR. MCBRIDE: Thank you, Your Honor.
THE COURT: We will recess now. Don’t forget to
get your exhibits back. Thank you, everyone. Have a nice
Christmas.
(Thereupon, the proceedings were concluded.)
CERTIFICATE OF TRANSCRIBER
I, Jacqueline Hogue, an Official Court Transcriber
for the Superior Court of the District of Columbia, do
hereby certify that in my official capacity I prepared from
electronic recordings the proceedings had and testimony
adduced in the matter of UNITED STATES OF AMERICA
versus KENNETH JOHNSON, Docket Number: M-7630-
97, in said Court, on the 12" day of December, 1997.
I further certify that the foregoing 52 pages were
transcribed to the best of my ability from said recordings.
In witness whereof, I have subscribed my name this
the 27" day of November, 2002.
**s/J. Hogue”’
Official Court Transcriber
RECEIVED
2002 Nov 27 P 2:12
CENTRAL RECORDING &
RECORDPRODUCTION
OFFICE
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SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION
Kenneth W. Johnson
2122 24" Place Unit B NE Washington DC 20018
Plaintiff
CAL I1
v. Civil Action No. 0003875-98
James O’ Boyle
1805 Bladensburg Rd NE Washington DC 20002
Defendants FILED
COMPLAINT =| May 22 1998
‘Veg Do
1. Jurisdiction of this Court is founded on D.C. Code
Annotated, 1973 edition, as amended, Sec. 11-921.
This is a request for equitable relief, | am requesting that
the Court issue a temporary restraing order against one
MPD Sergeant James O’ Boyle of 1805 Bladensburg Rd NE
Washington DC 20002 as he has made threats to close
down a Lawful business Operating Lawfully under the
rules and regulations of the District of Columbia having all
necessary Licenses & Permits He has no lawful reason to
do this See Attached Paper Work for Complaint.
Wherefore, Plaintiff demands judgment against
Defendant in the sum of | - with interest
and costs.
301 497-4428
Phone
DISTRICT OF COLUMBIA, SS
Kenneth W_ Johnson, being first duly sworn on oath
deposes and says that the forgoing is a just and true
statement of the amount owing by defendant to the
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plaintiff, exclusive of all set-offs and just grounds of
defense.
**s/Kenneth W Johnson”’
(Plaintiff — Agent)
Subscribed and sworn to before me this 22% day of May
1998
**s/Debra A. Cheek’’
(Notary Public/Deputy Clerk)
Debra A. Cheek
Notary Public
District of Columbia
My Commission Expires
August 14, 2001
K.W.J. ENTERPRISES, Inc.
2122 24" Place NE
Washington, DC 20018
May 18, 1998
Dear Chief Ramsey,
This is a formal complaint of misconduct by Police
Officers and Officials working on your Department. |
would first like to inform you that a 5" District Officer with
the last name Rodrigez, I believe if this is not his correct
name I would recognize him on sight. This officer
attempted on numerous occasions te extort money from me
by threating to close down my nightclub, if I did not
comply with his demands. Secondly, my nightclub has been
frequented a numerous amount of times by an MPD Sgt.
His name is Boyle or Doyle, again if I have it wrong |
460A
would recognize him on sight. This sergeant along with
some Officers have been harassing myself, club employees,
and other people, and have in several instances created a
malicious interference to my business and that of other
businesses involved. There are several companies who
make money from these events taking place and there
employees as well as me and my employees, adding up to
lots of people job’s are being affected as well as companies
income. Note: in all the years that I have been in business
there has only been to date one arrest of any customer of
mine which was in the bathroom. I have done everything I
could think of to combat any illegal activity. | have wrote
the Chief of Police Office requesting them to allow me to
have off duty police. I have submitted names of police
officers, Lieutenenants, Sergeants, who want to work for
me in there spare time. I have purchase $2,400.00 in
insurance to cover the DC Metropolitan Police Department
against lawsuits as they require to hire there police. I have
hired armed SPO companies, | have hired Club Security
Personnel. I have posted flyers at Police Stations to hire off
duty police and I have personally encouraged police
officers countless times to do there jobs and arrest any
person they see in or about my club doing anything illegal.
On one occasion for example, this past Friday, which was
May 15, 1998, the Sergeant Boyle came into my nightclub
ordered me out of my ticket booth as I monitored the
band’s cashier collecting money, of which % is paid to me.
He then told me that he smelled marijuana in the air in my
club. I told him then he needs to arrest anybody he see with
any drug or doing anything illegal, after all he is a police
officer and has that responsibility. He states to me that if he
smells it again he is going to throw my customers into the
street, keep in mind we’re talking about hundreds and
hundreds of people at one time and shut my club down
causing thousands and thousands of dollars to be lost at one
time that evening alone, not to mention the long term
damage it will cause in these people not returning to my
47A
business to patronize it, were talking liquid damages in the
hundreds of thousands of dollars and even millions if
sustained long enough. Also, out of all these people and the
Sgt. Boyle and his officers probing throughout my
nightclub on every visit they did not lock up not one
person, there are as many as 300 people in my place at one
time and through the course of a night there can be as many
as 500 hundred coming in and out. To spite my efforts, I
have been harassed and my business maliciously interfered
with, band members, myself, customers have been forced
to give there names to the same people over and over again.
This Sgt. Boyle has made a habit of threating me even
though he himself has not caught anyone doing anything
that he can arrest then for, | don’t have a gun or a badge or
a police radio, nor do I have his authority to handcuff an
arrest people. I cannot take any more threats from this man
nor can I allow people jobs to be destroyed because of this
Sergeant and other officers. This Sergeant has me terrified
to leave my business at 3:00am or 4:00am when it closes,
given the history of this and other experiences. I am
concerned that in an act of retaliation this man might try to
plant some drugs on me or at my business. [ should not
have to live with these fears. I have a business that is not
only legal but is licensed by the DC Government and I have
all of the Licenses and Occupancy permits needed to
Lawfully operate my business. My right to do so is being
breached by your employees, please do something about it
before more damage is caused.
**s/Kenneth W Johnson’”’
Kenneth W. Johnson
CEO/President
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DC R RCP Rules, Introductory Note
Superior Court Rules -— Civil (SCR-Civil) Rules,
Introductory Note
WEST’S DISTRICT OF COLUMBIA RULES OF
COURT SUPERIOR COURT RULES OF CIVIL
PROCEDURE
Copr. © 2006 Thomson/West.
Current with amendments received through 7/1/2006
INTRODUCTORY NOTE TO THE SUPERIOR COURT
RULES OF CIVIL PROCEDUE
“One of the primary objectives in drafting and
adoption of the following Superior Court Rules of
Civil Procedure has been to provide an integral and
convenient rules structure modeled closely on that
of the Federal Rules of Civil Procedure. Thus, the
practitioner should understand that these Civil Rules
are of three kinds:
(1) Rules 1-86 hereof are derived directly from the
correspondingly numbered Federal Rules and are in
many cases identical thereto.”
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DC R RCP Rule 60
Superior Court Rules ~ Civil (SCR-Civil) Rule 60
WEST’S DISTRICT OF COLUMBIA RULES OF
COURT SUPERIOR COURT RULES OF CIVIL
PROCEDURE VII. JUDGMENT
Copr. © 2006 Thomson/West.
Current with amendments received through 7/1/2006
RULE 60. RELIEF FROM JUDGMENT OR ORDER
“(b) Mistakes, Inadvertence; Excusable Neglect;
Newly Discovered Evidence; Fraud, etc. On motion
and upon such terms as are just, the court may
relieve a party of a party’s legal representative from
a final judgment, order, or proceeding for the
following reasons: (1)mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have
been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time,
and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was
entered or taken. A motion under this subdivision
(b) does not affect the finality of a judgment or
suspend its operation. This Rule does not limit the
S0A
power of a court to entertain an independent
action to relieve a party from a judgment, order,
or proceeding, or to set aside a judgment for
fraud upon the court.” Writs of coram nobis,
coram nobis and audita querela, and bills of review
and bills in the nature of a bill of review, are
abolished, and the procedure for obtaining any relief
from a judgment shall be by motion as prescribed in
these Rules or by an independent action.
Comment
Identical to Federal Rule of Civil Procedure 60
except for deletion from section (b) of the
inapplicable reference to 28 U.S.C. § 1655 dealing
with lien actions in the United States District
Courts.”
FRCP
Federal Rules of Civil Procedure Rule 60
United States Code Annotated Currentness
Federal Rules of Civil Procedure . for the United States
District Courts (Refs & Annos)
VII. Judgment
—Rule 60. Relief From Judgment or Order
“(b) Mistakes, Inadvertence; Excusable Neglect;
Newly Discovered Evidence; Fraud, etc. On motion
and upon such terms as are just, the court may
relieve a party of a party’s legal representative from
a final judgment, order, or proceeding for the
following reasons: (1)mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have
been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or |
discharged, or a prior judgment upon which i is
based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time,
and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was
entered or taken. A motion under this subdivision
(b) does not affect the finality of a judgment or
suspend its operation. This Rule does not limit the
power of a court to entertain an independent
action to relieve a party from a judgment, order,
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or proceeding, or to grant Trelief to a defendant not
actually personally notified as provided in Title 28,
U.S.C., § 1655, or to set aside a judgment for
fraud upon the court.” Writs of coram nobis,
coram nobis and audita querela, and bills of review
and bills in the nature of a bill of review, are
abolished, and the procedure for obtaining any relief
from a judgment shall be by motion as prescribed in
these Rules or hy.an independent action.
NOTE: COPIES OF THE RULES ARE AVAILABLE AT:
http://web2.westlaw.com/signon/default.wl?bhcp=1&fn=%
5Ftop&newdoor=true&rs=WLW6%2E1 | &vr=2%2E0
om
S3A
arch — | Result — No terms specified
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Source: Legal > Federal Legal — U.S. > United States Code
Service (USCS) Materials > United States Code Service —
Titles 1 through 50
TOC: United States Code Service — Titles 1 through 50 >
TITLE 42. THE PUBLIC HEALTH AND WELFARE >
CHAPTER 21. CIVIL RIGHTS > GENERALLY > § 1983.
Civil action for deprivation of rights (Part 1 of 8)
42 USCS § 1983
UNITED STATES CODE SERVICE
Copyright © 2005 Matthew Bender & Company, Inc.,
One of the LEXIS Publishing (TM) companies
All rights reserved
*** CURRENT THROUGH P.L. 109-2, APPROVED
2/18/05
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 21. CIVIL RIGHTS
GENERALLY
@ GO TO CODE ARCHIVE DIRECTORY FOR THIS
JURISDICTION
42 USCS § 1983 (2005)
THE CASE NOTES SEGMENT OF THIS DOCUMENT
HAS BEEN SPLIT INTO 8 DOCUMENTS. THIS IS
PART 1. USE THE BROWSE FEATURE TO REVIEW
THE OTHER PART(S).
S4A
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory of
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a
judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purpose of this
section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of
the District of Columbia.
HISTORY:
(R.S. § 1979; Dec. 29, 1979, P.L. 96-170, § 1, 93 Stat.
1284; Oct. 19, 1996, P.L. 104-317, Title IIL, § 30%c), 110
Stat. 3853.)
HISTORY; ANCILIARY LAWS AND DIRECTIVES
Explanatory notes:
This section formerly appeared as 8 USC § 43.
R.S. § 1979 was derived from Act April 20, 1871, ch 22,
§ 1, 17 Stat. 13.
Amendments:
1979. Act Dec. 29, 1979 inserted “or the District of
Columbia” and “For the purposes of this section, any Act
of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the
District of Columbia.”.
1996. Act Oct. 19, 1996 inserted”, except that in any ©
action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was
unavailable.”.
USCA CONST Amend. XIV-Full Text
U.S.C.A. Const. Amend. XTV-Full Text
Constitution of the United States
Annotated
Amendment XIV. Citizenship; Privileges and
Immunities; Due Process; Equal Protection;
Apportionment of Representation; Disqualification of
Officers; Public Debt; Enforcement (Refs & Annos)
—Amendment XIV. CITIZENSHIP;
PRIVILEGES AND IMMUNITIES; DUE
PROCESS; EQUAL PROTECTION;
APPOINTMENT OF REPRESENTATION;
DISQUALIFICATION OF OFFICERS;
PUBLIC DEBT; ENFORCEMENT
Section 1, All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the state wherein they reside. No
state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
http://web2.westlaw.com/signon/default.wl?bhcp=1&fn=%
5Ftop&newdoor=true&rs=WLW6%2E 1 | &vr=2%2EO
DC CODE s 12-309
DC ST § 12-309
Formerly cited as DC ST 1981 § 12-309
District of Columbia Official Code 2001 Edition
Currentness
Division II. Judiciary and Judicial Procedure
Title 12. Right to Remedy. (refs & Annos)
Chapter 3. Limitation of Actions.
—§ 12-309. Actions against District of Columbia
for unliquidated damages; time for notice.
An action may not be maintained against the District of
Columbia for unliquidated damages to person or property
unless, within six months after injury or damage was
sustained, the claimant, his agent, or attorney has given
notice in writing to the Mayor of the District of Columbia
of the approximate time, place, cause, and circumstances of
the injury or damage. A report in writing by the
Metropolitan Police Department, in regular course of duty,
is sufficient notice under this section.
CREDIT(S)
(Dec. 23, 1963, 77 Stat. 511, Pub. L. 88-241, § 1; July 29,
1970, 84 Stat. 551, Pub. L. 91-358, title I, § 141(2); Apr.
30, 1988, D.C. Law 7-104, § 2 (b), 35 DCR 147.)
HISTORY AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 12-309
1973 Ed., § 12-309
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5Ftop&newdoor=true&rs=WLW6%2E 1 1 &vr=2%2E0
STA
HAZEL-ATLAS GLASS CO. v. HARTFORD-EMPIRE
CO.
No. 398
SUPREME COURT OF THE UNITED STATES
322 U.S. 238; 64 S. Ct. 997; 88 L. Ed. 1250; 1944 US.
LEXIS 1200; 61 U.S.P.Q. (BNA) 241
February 9, 10, 1944, Argued
May 15, 1944, Decided
PRIOR HISTORY:
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE THIRD CIRCUIT.
CERTIORARI, 320 U.S. 732, to review an order of the
Circuit Court of Appeals denying relief in a bill of review
proceeding commenced in that court.
DISPOSITION: 137 F.2d 764, reversed.
CASE SUMMARY .
PROCEDURAL POSTURE: Petitioner challenged a
decision of the United States Circuit Court of Appeals for
the Third Circuit that entered judgment in favor of
respondent when the court found that the fraud was not
newly discovered and that the court lacked the power to set
aside the lower court's decree because of the expiration of
the term during which the previous decision had been
rendered.
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OVERVIEW: Petitioner commenced suit in the appellate
court by filing a petition for leave to file a bill of review in
the district court to set aside a judgment entered by the
district court nine years prior pursuant to the appellate
court's mandate. Petitioner contended that the appellate
court's judgment had been obtained by fraud; it supported
the charge with affidavits and exhibits. The action was
spurred on by respondent's allegations that petitioner was
infringing upon its patent. Certain issues were not made
known to petitioner until nine years later, when it decided
to institute the present suit. The appellate court held that the
fraud was not newly discovered and that it lacked the
power to set aside the district court's decree because of the
expiration of the term during which the previous decision
had been rendered. The United States Supreme Court
granted certiorari to review the appellate court's decision,
and it reversed the appellate court's decision and held that
the appellate court had the power to set aside the judgment
and remand the issue to the lower court because every
element of the fraud demanded the exercise of the power to
set aside fraudulently begotten judgments.
OUTCOME: The United States Supreme Court reversed
the iower court's decision when the court found that, under
certain circumstances, one of which was after discovered
fraud, relief would be granted against judgments regardless
of the term of their entry. The Court held that the appellate
court had both the duty and the power to vacate its own
judgment and to give the trial court appropriate directions.
CORE TERMS: patent, decree, investigator, infringement,
expiration, equitable, leave to file, practiced, glass,
interviewed, diligence, infringed, procured, expired,
settlement, authorship, feeding, gob, original jurisdiction,
preparation, extrinsic, spurious, perjury, denying relief, first
instance, perpetrated, wrongdoer, interview, modify, vacate
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Lexi » ‘+ is(R) Headnotes «Hide Headnotes
Civil Procedure > Judgments > Entry of Judgments >
General Overview
Civil Procedure > Judgments > Relief From Judgment >
Motions to Alter & Amend
HN1:
Federal courts, both trial and appellate, long ago
established the general rule that they would not alter or set
aside their judgments after the expiration of the term at
which the judgments were finally entered.
Civil Procedure > Judgments > Relief From Judgment >
Excusable Neglect & Mistakes > General Overview
Civil Procedure > Judgments > Relief From Judgment >
Fraud
HN2:
Under certain circumstances, one of which is after-
discovered fraud, relief will be granted against judgments
regardless of the term of their entry.
Civil Procedure > Judgments > Relief From Judgment >
Fraud
Civil Procedure > Judgments > Relief From Judgment >
Independent Actions
HN3:
Equitable relief against fraudulent judgments is not of
statutory creation. It is a judicially devised remedy
fashioned to relieve hardships which, from time to time,
arise from a hard and fast adherence to another court-made
rule, the general rule that judgments should not be
disturbed after the term of their entry has expired.
60A
Patent Law > Remedies > Bad Faith Enforcement
HN4:
To grant full protection to the public against a patent
obtained by fraud, that patent must be vacated.
LAWYERS' EDITION HEADNOTES:
[***HN1]
JUDGMENT, §303
alteration or setting aside after term. —
Headnote: [1]
As a general rule federal courts, both trial and appellate,
will not alter or set aside their judgments after the
expiration of the term at which the judgments were finally
entered.
[***HIN2}
EQUITY, §47 ~
relief after term from judgment procured by fraud. --
Headnote: [2]
A court of equity may grant relief against a judgment
because of after-discovered fraud, regardless of the term of
its entry, but such power should be cautiously exercised.
[***HN3]
EQUITY, §47
JUDGMENT, §303
relief against adjudication of infringement of patent --
effect of expiration of term. —
61A
Headnote: [3]
Equity will set aside a decree in a patent infringement suit
that the patent is valid and infringed where both the court
and the Patent Office were influenced by fraudulent
misrepresentations that the patented device was an advance
in the art and where, although the terms of court at which
such decree was mandated by a circuit court of appeals and
entered by a district court has expired, no equities have
intervened through transfer of the fraudulently procured
patent or judgment to an _ innocent purchaser.
[***HN4]
EQUITY, §48
relief against judgment -- lack of diligence. —
Headnote: [4]
Because of the public interest involved, equitable relief
against a judgment obtained by fraud in a patent
infringement suit will not be denied because the party
seeking it has not exercised the highest degree of diligence
in uncovering the fraud.
[***HN5]
ESTOPPEL, §65
by own wrong -- fraud. —
Headnote: [5]
Where the plaintiff in a patent infringement suit on appeal
from a district court's decision that there had been no
infringement, urged upon the attention of the circuit court
of appeals a trade magazine article, representing the device
in question as an advance in the art, purporting to have
been written by a disinterested third person, but in fact
prepared by plaintiff, and was successful in obtaining a
determination that the patent was valid and infringed,
62A
plaintiff is in no position to dispute the effectiveness of the
article in bringing about the decision and may not be
permitted to escape the consequence of the deceptive
attribution of authorship to a third person on the ground
that what the article stated was true.
[***HN6]
REVIEW, §10
bill of -- power of Circuit Court of Appeals to relieve
against own decision obtained by fraud. —
Headnote: [6]
A circuit court of appeals has both the duty and the power
to relieve against a decree entered in a district court
pursuant to its mandate, upon a bill of review after the
expiration of the term, for fraud practiced upon it, and is
not bound to remit the complainant to the district court for
relief.
[***HN7]
EQUITY, §47
relief against fraudulent judgment -- nature of remedy. —
Headnote: [7]
Equitable relief against fraudulent judgments is not of
statutory creation, but is a judicially devised remedy
fashioned to relieve hardships which from time to time
arise from a hard and fast adherence to the court-made rule
that judgments should not be disturbed after the term of
their entry has expired.
[***HN8]
REVIEW, §15
63A
application to appellate court for leave to file bill --
necessity. —
Headnote: [8]
Where a judgment, the setting aside of which is sought by
bill of review, was entered upon the mandate of an
appellate court, permission to file the bill must be sought in
the appellate court upon appropriate averments supported
by affidavits or other acceptable evidence; and such court
may, in the exercise of a proper discretion, reject the
petition, in which case the bill of review cannot be filed in
the lower court.
[***HN9]
DISMISSAL AND DISCONTINUANCE, §17
involuntary -- suit for infringement of patent. —
Headnote: [9]
Fraud in obtaining a patent for an invention, and in
representations to the court bearing on the question of its
validity, requires a complete denial of relief to the patentee
against a claimed infringement.
[***HN10]
PATENTS, §361
vacation -- who may sue. —
Headnote: [10]
Vacation of a patent for an invention because of fraud in
obtaining it can only be accomplished in a direct
proceeding brought by the Government, and may not be
decreed in a suit for its infringement.
SYLLABUS: Upon appeal from a judgment of the District
Court denying relief in a suit by Hartford against Hazel for
64A
infringement of a patent, the Circuit Court of Appeals in
1932 held Hartford's patent valid and infringed, and upon
its mandate the District Court entered judgment
accordingly. In 1941, Hazel commenced in the Circuit
Court of Appeals this proceeding, wherein it conclusively
appeared that Hartford, through publication of an article
purporting to have been written by a disinterested person,
had perpetrated a fraud on the Patent Office in obtaining
the patent and on the Circuit Court of Appeals itself in the
infringement suit. Upon review here of an order of the
Circuit Court of Appeals denying relief, held:
1. Upon the record, the Circuit Court of Appeals had the
power and the duty to vacate its 1932 judgment and to give
the District Court appropriate directions. P. 247. -
(a) Even if Hazel failed to exercise due diligence to
uncover the fraud, relief may not be denied on that ground
alone, since public interests are involved. P. 246.
(b) In the circumstances, Hartford may not be heard to
dispute the effectiveness nor to assert the truth of the
article. P. 247.
2. The Circuit Court ef Appeals is directed to set aside its
1932 judgment, recall its 1932 mandate, dismiss Hartford's
appeal, and to issue a mandate to the District Court
directing it to set aside its judgment entered pursuant to the
1932 mandate, to reinstate its original judgment denying
relief to Hartford, and to take such additional action as may
be necessary and appropriate. P. 250.
COUNSEL: Mr. Stephen H. Philbin, with whom Mr.
Henry R. Ashton was on the brief, for petitioner.
Mr. Francis W. Cole, with whom Messrs. Walter J. Blenko,
65A
Edgar J. Goodrich, and James M. Carlisle were on the brief,
for respondent.
Solicitor General Fahy, Assistant Attorney General Shea,
and Messrs. Robert L. Stern and Melvin Richter filed a
brief on behalf of the United States, as amicus curiae,
urging reversal.
JUDGES: Stone, Roberts, Blacks, Reed, Frankfurter,
Douglas, Murphy, Jackson, Rutledge
OPINION BY: BLACK
OPINION: [*239] [**998] [***1252] MR. JUSTICE
BLACK delivered the opinion of the Court.
This case involves the power of a Circuit Court of Appeals,
upon proof that fraud was perpetrated on it by a successful
litigant, to vacate its own judgment entered at a prior term
and direct vacation of a District Court's decree entered
pursuant to the Circuit Court of Appeals’ mandate.
Hazel-Atlas commenced the present suit in November,
1941, by filing in the Third Circuit Court of Appeals a
petition for leave to file a bill of review in the District
Court to set aside a judgment entered by that Court against
Hazel in 1932 pursuant to the Third Circuit Court of
Appeals’ mandate. Hazel contended that the Circuit Court
of Appeals' judgment had been obtained by fraud and
supported this charge with affidavits and exhibits. Hartford-
Empire, in whose favor the challenged judgment had been
entered, did not question the appellate court's power to
consider the petition, but filed counter affidavits and
exhibits. After a hearing the Circuit Court concluded that
since the alleged fraud had been practiced on it rather than
the District Court it would pass on the [*240] issues of
66A
fraud itself instead of sending the case to the District Court.
An order was thereupon entered denying the petition as
framed but granting Hazel leave to amend the prayer of the
petition to ask that the Circuit Court itself hear and
determine the issue of fraud. Hazel accordingly amended,
praying that the 1932 judgments against it be vacated and
for such other relief-as-might be just. Hartford then replied
and filed additional exhibits and affidavits. The following
facts were shown by the record without dispute.
In 1926 Hartford had pending an application for a patent on
a machine which utilized a method of pouring glass into
molds known as "gob feeding." The application, according
to the Circuit Court, “was confronted with apparently
insurmountable Patent Office opposition." To help along
the application, certain officials and attorneys of Hartford
determined to have published in a trade journal an article
[**999] signed by an ostensibly disinterested expert which
would describe the "gob feeding" device as a remarkable
advance in the art of fashioning glass by machine.
Accordingly these officials prepared an article entitled
"Introduction of Automatic Glass Working [***1253]
Machinery; How Received by Organized Labor," which
referred to "gob feeding" as one of the two "revolutionary
devices" with which workmen skilled in bottle-blowing had
been confronted since they had organized. After
unsuccessfully attempting to persuade the President of the
Bottle Blowers’ Association to sign this article, the Hartford
officials, together with other persons called to their aid,
procured the signature of one William P. Clarke, widely
known as National President of the Flint Glass Workers'
Union. Subsequently, in July 1926, the article was
published in the National Glass Budget, and in October
1926 it was introduced as part of the record in support of
the pending application in the Patent Office. [*241] January
3, 1928, the Patent Office granted the application as Patent
No. 1,655,391.
67A
On June 6, 1928, Hartford brought suit in the District Court
for the Western District of Pennsylvania charging that
Hazel was infringing this “gob feeding" patent, and praying
for an injunction against further infringement and for an
accounting for profits and damages. Without referring to
the Clarke article, which was in the record only as part of
the "file-wrapper" history, and which apparently was not
then emphasized by counsel, the District Court dismissed
the bill on the ground that no infringement had been
proved. 39 F.2d 111. Hartford appealed. In their brief filed
with the Circuit Court of Appeals, the attorneys for
Hartford, one of whom had played a part in getting the
spurious article prepared for publication, directed the
Court's attention to "The article by Mr. William Clarke,
former President of the Glass Workers' Union." The
reference was not without effect. Quoting copiously from
the article to show that “labor organizations of practical
workmen recognized" the "new and _ differentiating
elements" of the "gob feeding" patent owned by Hartford,
the Circuit Court on May 5, 1932, held the patent valid and
infringed, reversed the District Court's judgment, and
directed that court to enter a decree accordingly. 59 F.2d
399, 403, 404.
At the time of the trial in the District Court in 1929, where
the article seemingly played no important part, the
attorneys of Hazel received information that both Clarke
and one of Hartford's lawyers had several years previously
admitted that the Hartford lawyer was the true author of the
spurious publication. Hazel's attorneys did not at that time
attempt to verify the truth of the hearsay story of the
article's authorship, but relied upon other defenses which
proved successful. After the opinion of the Circuit Court
came down on May 5, 1932, quoting the spurious [*242]
article and reversing the decree of the District Court, Hazel
hired investigators for the purpose of verifying the hearsay
68A
by admissible evidence. One of these investigators
interviewed Clarke in Toledo, Ohio, on May 13 and again
on May 24. In each interview Clarke insisted that he wrote
the article and would so swear if summoned. In the second
interview the investigator asked Clarke to sign a statement
telling in detail how the article was prepared, and further
asked to see Clarke's files. Clarke replied that he would not
“stultify" himself by signing any "statement or affidavit";
and that he would show the records to no one unless
compelled by a subpoena. At the same time, he reinforced
his claim of authorship by asserting that he had spent seven
weeks in preparing the article.
But unknown to Hazel's investigator, a representative of
Hartford, secretly informed of the investigator's view that
Hazel's only chance of reopening the case "was to get an
affidavit from someone, to the effect that this article was
written" by Hartford's attorney, also had traveled to Toledo.
Hartford's representative first went to Toledo and talked to
Clarke on May 10, three days before Hazel's investigator
first interviewed Clarke; and he returned [***1254] to
Toledo again on May 22 for a five-day stay. Thus at the
time of the investigator's second interview with Clarke on
May 24, representatives of both companies were in touch
with Clarke in Toledo. But though Hartford's representative
knew the investigator was there, the latter was unaware of
the presence of the [**1000] Hartford representative. On
May 24, Hazel's investigator reported failure; the same day,
Hartford's man reported "very successful results." Four
days later, on May 28, Hartford's representative reported
his "success" more fully. Clarke, he said, had been of "great
assistance" and Hartford was in a "most satisfactory
position"; it did not "seem wise to distribute copies of all
the papers" the representative then had or [*243] to "go into
much detail in correspondence"; and Hartford was "quite
indebted to Mr. Clarke" who "might easily have caused us
a lot of trouble. This should not be forgotten. . . ." Among
69A
the “papers” which the representative had procured from
Clarke was an affidavit signed by Clarke stating that he,
Clarke, had "signed the article and released it for
publication.” The affidavit was dated May 24 -- the very
day that Clarke had told Hazel's investigator he would not
"stultify" himself by signing any affidavit and would
produce his papers for no one except upon subpoena.
Shortly afterward Hazel capitulated. It paid Hartford $
1,000,000 and entered into certain licensing agreements.
The day following the settlement, Hartford's representative
traveled back to Toledo and talked to Clarke. At this
meeting Clarke asked for $ 10,000. Hartford's
representative told him that he wanted too much money and
that Hartford would communicate with him further. A few
days later the representative paid Clarke $ 500 in cash; and
about a month later delivered to Clarke, at some place in
Pittsburgh which he has sworn he cannot remember, an
additional $ 7,500 in cash. The reason given for paying
these sums was that Hartford felt a certain moral obligation
to do so, although Hartford's affidavits deny any prior
agreement to pay Clarke for his services in connection with
the article.
Indisputable proof of the foregoing facts was, for the first
time, fully brought to light in 1941 by correspondence files,
expense accounts and testimony introduced at the trial of
the United States v. Hartford-Empire Company et al., 46
F.Supp. 541, an anti-trust prosecution begun December 11,
1939. On the basis of the disclosures at this trial Hazel
commenced the present suit.
Upon consideration of what it properly termed this "sordid
story," the Circuit Court, one Judge dissenting, held, first,
that the fraud was not newly discovered; second,
{*244] that the spurious publication, though quoted in the
1932 opinion, was not the primary basis of the 1932
T0A
decision; and third, that in any event it lacked the power to
set aside the decree of the District Court because of the
expiration of the term during which the 1932 decision had
been rendered. Accordingly the Court refused to grant the
relief prayed by Hazel.
(***HR1) [1]
[***HR2] [2]
HN1f Federal courts, both trial and appellate, long ago
established the general rule that they would not alter or set
aside their judgments after the expiration of the term at
which the judgments were finally entered. Bronson v.
Schulten, 104 U.S. 410. This salutary general rule springs
from the belief that in most instances society is best served
by putting an end to litigation after a case has been tried
and judgment entered. This has not meant, however, that a
judgment finally entered has ever been regarded as
completely immune from impeachment after the term.
From the beginning there has existed alongside the term
rule a rule of equity to the effect that HN2T under certain
circumstances, one of which is after-discovered fraud,
relief will [***1255]be granted against judgments
regardless of the term of their entry. Marine Insurance Co.
v. Hodgson, 7 Cranch 332; Marshall v. Holmes, 141 U.S.
589. This equity rule, which was firmly established in
English practice long before the foundation of our
Republic, the courts have developed and fashioned to fulfill
a universally recognized need for correcting injustices
which, in certain instances, are deemed sufficiently gross to
demand a departure from rigid adherence to the term rule.
Out of deference to the deep-rooted policy in favor of the
repose of judgments entered during past terms, courts of
equity have been cautious in exercising their power over
such judgments. United States v. Throckmorton, 98 U.S.
61. But where the occasion has demanded, where
enforcement of the judgment is "manifestly [*245]
unconscionable,” Pickford v. Talbott, 225 U.S. 651, 657,
they have wielded the power {[**1001] without hesitation.
ni Litigants who have sought to invoke this equity power
customarily have done so by bills of review or bills in the
nature of bills of review, or by original proceedings to
enjoin enforcement of a judgment. n2 And in cases where
courts have exercised the power, the relief granted has
taken several forms: setting aside the judgment to permit a
new trial, altering the terms of the judgment, or restraining
the beneficiaries of the judgment from taking any benefit
whatever from it. n3 But whatever form the relief has taken
in particular cases, the net result in every case has been the
same: where the situation has required, the court has, in
some manner, devitalized the judgment even though the
term at which it was entered had long since passed away.
nl See, e. g., Art Metal Works v. Abraham & Strauss, 107
F.2d 940 and 944; Publicker v. Shallcross, 106 F.2d 949;
Chicago, R. L & P. Ry. Co. v. Callicotte, 267 F. 799;
Pickens v. Merriam, 242 F. 363; Lehman v. Graham, 135
F. 39; Bolden v. Sloss-Sheffield Steel & Iron Co., 215 Ala.
334, 110 So. 574, 49 A. L. R. 1206. For a collection of
early cases see Note (1880) 20 Am. Dec. 160.
n2 See Whiting y. Bank of the United States, 13 Pet. 6, 13;
Dexter v. Arnold, 5 Mason 303, 308-315. See, also,
generally, 3 Ohlinger’s Federal Practice pp. 814-818; 3
Freeman on Judgments (Sth ed.) § 1191; Note ieee 20
Am. Dec. 160, supra.
n3 See 3 Freeman on Judgments (Sth ed.) §§ 1178, 1779.
Se a eT
T2A
[***HR3] [3]
Every element of the fraud here disclosed demands the
exercise of the historic power of equity to set aside
fraudulently begotten judgments. This is not simply a case
of a judgment obtained with the aid of a witness who, on
the basis of after-cdiscovered evidence, is believed possibly
to have been guilty of perjury. Here, even if we consider
nothing but Hartford's sworn admissions, we find a
deliberately planned and carefully executed scheme to
defraud not only the Patent Office but the Circuit Court of
Appeals. [*246] Cf. Marshall v. Holmes, supra. Proof of
the scheme, and of its complete success up to date, is
conclusive. Cf. United States v. Throckmorton, supra. And
no equities have intervened through transfer of the
fraudulently procured patent or judgment to an innocent
purchaser. Cf. Ibid; Hopkins v. Hebard, 235 U.S. 287.
[***HR4] [4]
The Circuit Court did not hold that Hartford's fraud feil
short of that which prompts equitable intervention, but
thought Hazel had not exercised proper diligence in
uncovering the fraud and that this should stand in the way
of its obtaining relief. We cannot easily understand how,
under the admitted facts, Hazel should have been expected
to do more than [*** 1256] it did to uncover the fraud. But
even if Hazel did not exercise the highest degree of
diligence, Hartford's fraud cannot be condoned for that
reason alone. This matter does not concern only private
parties. There are issues of great moment to the public in a
patent suit. Mercoid Corporation v. Mid-Continent
Investment Co., 320 U.S. 661; Morton Salt Co. v. G. S.
Suppiger Co., 314 U.S. 488. Furthermore, tampering with
the administration of justice in the manner indisputably
T3A
shown here involves far more than an injury to a single
litigant. It is a wrong against the institutions set up to
protect and safeguard the public, institutions in which fraud
cannot complacently \be tolerated consistently with the
good order of society. Surely it cannot be that preservation
of the integrity of the judicial process must always wait
upon the diligence of litigants. The public welfare demands
that the agencies of public justice be not so impotent that
they must always be mute and helpless victims of deception
and fraud.
[***HR5] [5]
The Circuit Court also rested denial of relief upon the
conclusion that the Clarke article was not "basic" to the
Court's 1932 decision. Whether or not it was the primary
basis for that ruling, the article did impress the Court,
as [*247] shown by the Court's opinion. Doubtless it is
wholly impossible accurately to appraise the influence that
the article exerted on the judges. But we do not think the
circumstances [**1002] call for such an _ attempted
appraisal. Hartford's officials and lawyers thought the
article material. They conceived it in an effort to persuade a
hostile Patent Office to grant their patent application, and
went to considerable trouble and expense to get it
published. Having lost their infringement suit based on the
patent in the District Court wherein they did not
specifically emphasize the article, they urged the article
upon the Circuit Court and prevailed. They are in no
position now to dispute its effectiveness. Neither should
they now be permitted to escape the consequences of
Hartford's deceptive attribution of authorship to Clarke on
the ground that what the article stated was true. Truth needs
no disguise. The article, even if true, should have stood or
fallen under the only title it could honestly have been given
-- that of a brief in behalf of Hartford, prepared by
Hartford's agents, attorneys, and collaborators.
T4A
[***HR6] [6]
We have, then, a case in which undisputed evidence filed
with the Circuit Court of Appeals in a bill of review
proceeding reveals such fraud on that Court as demands,
under settled equitable principles, the interposition of
equity to devitalize the 1932 judgment despite the
expiration of the term at which that judgment was finally
entered. Did the Circuit Court have the power to set aside
its own 1932 judgment and to direct the District Court
likewise to vacate the 1932 decree which it entered
pursuant to the mandate based upon the Circuit Court's
judgment? Counsel for Hartford contend not. They concede
that the District Court has the power upon proper proof of
fraud to set aside its 1932 decree in a bill of review
proceeding, but nevertheless deny that the Circuit Court
possesses a similar power for the reason that the term
during [*248] which its 1932 judgment was entered had
expired. The question, then, is not whether relief can be
granted, but which court can — grant it.
[***HR7] [7]
[***HR8] [8]
HN3 ft Equitable relief against fraudulent judgments is not
of statutory creation. It is a judicially devised remedy
fashioned to relieve hardships which, from time to time,
arise from a hard and fast adherence to another court-made
rule, the general rule that judgments should not be
disturbed after the term of their entry has expired. Created
to avert the evils of archaic rigidity, this equitable
procedure has always been characterized [***1257] by
flexibility which enables it to meet new situations which
demand equitable intervention, and to accord all the relief
necessary to correct the particular injustices involved in
these situations. It was this flexibility which enabled courts
to meet the problem raised when leave to file a bill of
review was sought in a court of original jurisdiction for the
T5A
purpose of impeaching a judgment which had been acted
upon by an appellate court. Such a judgment, it was said,
was not subject to impeachment in such a proceeding
because a trial court lacks the power to deviate from the
mandate of an appellate court. The solution evolved by the
courts is a procedure whereby permission to file the bill is
sought in the appellate court. The hearing conducted by the
appellate court on the petition, which may be filed many
years after the entry of the challenged judgment, is not just
a ceremonial gesture. The petition must contain the
necessary averments, supported by affidavits or other
acceptable evidence; and the appellate court may in the
exercise of a proper discretion reject the petition, in which
case a bill of review cannot be filed in the lower court.
National Brake Co. v. Christensen, 254 U.S. 425, 430-433.
We think that when this Court, a century ago, approved this
practice and held that federal appellate courts have the
power to pass upon, and hence to grant or deny, petitions
{*249] for bills of review even though the petitions be
presented long after the term of the challenged judgment
has expired, it settled the procedural question here
involved. Southard v. Russell, 16 How. 547. n4 To reason
[**1003] otherwise would be to say that although the
Circuit Court has the power to act after the term finally to
deny relief, it has not the power to act after the term finally
to grant relief. It would, moreover, be to say that even in a
case where the alleged fraud was on the Circuit Court itself,
the relevant facts as to the fraud were agreed upon by the
litigants, and the Circuit Court concluded relief must be
granted, that Court nevertheless must send the case to the
District Court for decision. Nothing in reason or precedent
requires such a cumbersome and dilatory procedure. Indeed
the whole history of equitable procedure, with the
traditional flexibility which has enabled the courts to grant
all the relief against judgments which the equities require,
argues against it. We hold, therefore, that the Circuit Court
76A
on the record here presented n5 had [*250] both the duty
and the [***1258] power to vacate its own judgment and to
give the District Court appropriate directions.
n4 See also Tyler v. Magwire, 17 Wall. 253, 283:
"Repeated decisions of this court have established the rule
that a final judgment or decree of this court is conclusive
upon the parties, and that it cannot be reexamined at a
subsequent term, except in cases of fraud, as there is no act
of Congress which confers any such authority." (Italics
supplied.)
n5 We do not hold, and would not hold, that the material
questions of fact raised by the charges of fraud against
Hartford could, if in dispute, be finally determined on ex
parte affidavits without examination and cross-examination
of witnesses. It should again be emphasized that Hartford
has never questioned the accuracy of the various documents
which indisputably show fraud on the Patent Office and the
Circuit Court, and has not claimed, either here or below,
that a trial might bring forth evidence to disprove the facts
as shown by these documents. And insofar as a trial would
serve to bring forth additional evidence showing that Hazel
was not diligent in uncovering these facts, we already have
pointed out that such evidence would not in this case
change the result.
Moreover, we need not decide whether, if the facts relating
to the fraud were in dispute and difficult of ascertainment,
the Circuit Court here should have held hearings and
decided the case or should have sent it to the District Court
for decision. Cf. Art Metal Works v. Abraham & Strauss-~
supra, Note 1.
TTA
[***HR9] [9]
The question remains as to what disposition should be
made of this case. Hartford's fraud, hidden for years but
now admitted, had its genesis in the plan to publish an
article for the deliberate purpose of deceiving the Patent
Office. The plan was executed, and the article was put to
fraudulent use in the Patent Office, contrary to law. U. S.
C., Title 35, § 69; United States v. American Bell
Telephone Co., 128 U.S. 315. From there the trail of fraud
continued without break through the District Court and up
to the Circuit Court of Appeals. Had the District Court
learned of the fraud on the Patent Office at the original
infringement trial, it would have been warranted in
dismissing Hartford's case. In a patent case where the fraud
certainly was not more flagrant than here, this Court said:
"Had the corruption of Clutter been disclosed at the trial . . .
, the court undoubtedly would have been warranted in
holding it sufficient to require dismissal of the cause of
action there alleged for the infringement of the Downie
patent." Keystone Driller Co. v. Excavator Co., 290 U.S.
240, 246; cf. Morton Salt Co. v. G. S. Suppiger Co., supra,
493, 494. So, also, could the Circuit Court of Appeals have
dismissed the appeal had it been aware of Hartford's
corrupt activities in suppressing the truth concerning the
authorship of the article. The total effect of all this fraud,
practiced both on the Patent Office and the courts, calls for
nothing less than a complete denial of relief to Hartford for
the claimed infringement of the patent thereby procured
and enforced.
Since the judgments of 1932 therefore must be vacated, the
7T8A
case now stands in the same position as though Hartford's
corruption had been exposed at the original trial. [*251]} In
this situation the doctrine of the Keystone case, supra,
requires that Hartford be denied relief.
{***HR10] [10}
HN4? To grant full protection to the public against a
patent obtained by fraud, that patent must be vacated. It has
previously been decided that such a remedy is not available
in infringement proceedings, but can only be accomplished
in a direct proceeding brought by the Government. United
States v. American Bell Telephone Co., supra.
[**1004] The judgment is reversed with directions to set
aside the 1932 judgment of the Circuit Court of Appeals,
recall the 1932 mandate, dismiss Hartford's appeal, and
issue mandate to the District Court directing it to set aside
its judgment entered pursuant to the Circuit Court of
Appeals' mandate, to reinstate its original judgment
denying relief to Hartford, and to take such additional
action as may be necessary and appropriate.
Reversed.
T9A
JOHN DEMJANJUK, Petitioner-Appellant, v. JOSEPH
PETROVSKY, et al., Respondents-Appellees. Upon
Reconsideration of an DEMJANJUK
No. 85-3435
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
10 F.3d 338; 1993 U.S. App. LEXIS 29694; 27 Fed. R.
Serv. 3d (Callaghan) 437
September 3, 1993, Argued
November 17, 1993, Decided
November 17, 1993, Filed
SUBSEQUENT HISTORY: [**1] Rehearing En Banc
Denied February 24, 1994, Reported at: 1994 U.S. App.
LEXIS 3678.
PRIOR HISTORY: Appeal from the United States
District Court for the Northern District of Ohio. District
No. 85-01226. Frank J. Battisti, District Judge. Thomas A.
Wiseman, Jr., District Judge.
CASE SUMMARY
PROCEDURAL POSTURE: Defendant immigrant
appealed a decision from the United States District Court
for the Northern District of Ohio, which denied his petition
for habeas corpus relief from an extradition warrant.
Specifically, defendant argued on appeal that plaintiff had
omitted exculpatory evidence tending to show that
defendant's identity was wrongfully confused with that of a
war criminal.
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OVERVIEW: Defendant immigrant was prosecuted in a
federal district court for alleged criminal activity that he
conducted during World War II. After trial, the district
court found him guilty and ordered his extradition to Israel
to undergo trial and probable capital punishment if
convicted. In response, defendant appealed, arguing that he
was entitled to habeas corpus relief because plaintiff
engaged in severe misconduct by failing to disclose
discovery information that could have incriminated another
war criminal. The court appointed a Special Master after
defendant's trial to evaluate the weight of the evidence, and
to determine whether plaintiff withheld material
information. Upon a final determination, the court vacated
defendant's extradition order on the grounds that plaintiff's
withholding of evidence, regardless of whether it was
knowingly accomplished, amounted to a severe fraud on
the court. In addition, the Special Master's findings as to
the likely culpability of the alternative party sufficed as
further evidence that plaintiff's discovery error prejudiced
defendant.
OUTCOME: Defendant was granted his motion to vacate
an extradition order, where plaintiff engaged in misconduct
by not disclosing information that could have possibly led
to a conviction of another party. The court held that,
although plaintiff's withholding of such information was
not proven to be intentional, it still amounted to fraud on
the court.
CORE TERMS: guard, camp, ivan, chamber, photograph,
denaturalization, prisoner, barrack, extradition,
identification, gas chamber, death camp, _ card,
memorandum, extermination, survivor, discovery,
prosecutor, train, barbed wire, photo, hair, exculpatory,
deposition, clothing, arrived, meter, duty, trained, signature
LexisNexis(R) Headnotes «Hide Headnotes
SIA
Civil Procedure > Judicial Officers > Masters > General
Overview
Criminal Law & Procedure > Appeals > Standards of
Review > Clearly Erroneous Review > General Overview
HN1:
The United States Court of Appeals for the Sixth Circuit is
required to accept a Special Master's findings of fact unless
clearly erroneous.
Civil Procedure > Discovery > Methods > Requests for
Production & Inspection
Criminal Law & Procedure > Discovery & Inspection >
Brady Materials
HN2:
It would be error to exclude from the definition of fraud on
the court intentional, fraudulent nondisclosure during
discovery.
Torts > Negligence > General Overview
HN3:
Recklessness on the part of a party exists when the actor
has knowledge, or reason to know, of the facts, but does not
realize or appreciate the high degree of risk involved,
although a reasonable man in his position would do so. An
objective standard is applied to him, and he is held to the
realization of the aggravated risk, which a reasonable man
in his place would have, although he does not himself have
it.
Criminal Law & Procedure > Criminal Offenses >
Miscellaneous Offenses > Obstruction of Justice > General
Overview
Criminal Law & Procedure > Discovery & Inspection >
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Discovery Misconduct
Criminal Law & Procedure > Appeals > Reversible Errors
> General Overview
HN4:
Fraud on the court is a somewhat nebulous concept usually
discussed in civil cases. No court system can function
without safeguards against actions that interfere with its
administration of justice. This concern must be balanced
against the necessity for finality of court judgments; thus,
only actions that actually subvert the judicial process can
be the basis for upsetting otherwise settled decrees.
Criminal Law & Procedure > Appeals > Prosecutorial
Misconduct > General Overview
Governments > Courts > Court Personnel
HNS:
Fraud upon the court should embrace only that species of
fraud which does or attempts to, subvert the integrity of the
court itself, or is a fraud perpetrated by officers of the court
so that the judicial machinery cannot perform in the usual
manner its impartial task of adjudging cases that are
presented for adjudication, and relief should be denied in
the absence of such conduct.
Criminal Law & Procedure > Appeals > Prosecutorial
Misconduct > General Overview
Governments > Courts > Court Personnel
HN6:
_ Cases dealing with fraud on the court often turn on whether
the improper actions are those of parties alone, or if the
attorneys in the case are involved. As an officer of the
court, every attorney has a duty to be completely honest in
conducting litigation.
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Criminal Law & Procedure > Appeals > Prosecutorial
Misconduct > General Overview
Governments > Courts > Court Personnel
Legal Ethics > Prosecutorial Conduct
HN7:
While an attorney should represent his client with singular
loyalty, that loyalty obviously does not demand that he act
dishonestly or fraudulently; on the contrary his loyalty to
the court, as an officer thereof, demands integrity and
honest dealing with the court. And when he departs from
that standard in the conduct of a case he perpetrates fraud
upon a court.
Criminal Law & Procedure > Discovery & Inspection >
Brady Materials |
HN8:
The suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution.
Civil Procedure > Judgments > Relief From Judgment >
Fraud
Civil Procedure > Judgments > Relief From Judgment >
Independent Actions
Governments > Courts > Authority to Adjudicate
HN9:
See Fed. R. Civ. P. 60(b).
COUNSEL: For JOHN DEMJANJUK, Petitioner -
Appellant: Edward Marek, Fed. Public Defender,
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BRIEFED, Federal Public Defender's Office, Cleveland,
OH. Michael E. Tigar, ARGUED, BRIEFED, University of
Texas Law School, Austin, pp
For JOSEPH PETROVSKY, Respondent - Appellee: Patty
Merkamp Stemler, ARGUED, BRIEFED, Department of
Justice Criminal Division, Appellate Section, Washington,
DC.
JUDGES: Before: MERRITT, Chief Judge; KEITH,
Circuit Judge; and LIVELY, Senior Circuit Judge.
OPINION: BY: LIVELY
OPINION: [*339] LIVELY, Senior Circuit Judge. The
question before the court is whether attorneys in the Office
of Special Investigations (OSI), a unit within the Criminal
Division of the Department of Justice, engaged in
prosecutorial misconduct by failing to disclose to the courts
and to the petitioner exculpatory information in their
possession during litigation culminating in extradition
proceedings, which led to the petitioner's forced departure
from the United States and trial on capital charges in the
State of Israel. For the reasons stated herein we conclude
the OSI did so engage in prosecutorial misconduct that
seriously misled the court.
[.
A.
This matter is before the court on its own motion, pursuant
to an order entered on June 5, 1992. In the June 5 order we
stated that information had come to the attention of the
court which required us to determine whether this court's
affirmance of the district court's denial of John Demjanjuk's
petition for habeas corpus relief from an extradition warrant
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was improvident. See Demjanjuk v. Petrovsky, 776 F.2d
571 (6th Cir. 1985), [**2] cert. denied, 475 U.S. 1016, 89
L. Ed. 2d 312, 106 S. Ct. 1198 (1986).
The order directed the respondents to address certain
questions related to the identification of Demjanjuk as the
notorious Ukrainian guard at the Nazi extermination camp
near Treblinka, Poland called by Jewish inmates "Ivan the
Terrible" (Ivan Grozny). The order also set the matter for
oral argument on August 11, 1992. The Department of
Justice appeared for the respondents.
Following briefing and oral argument, the court entered an
order on August 17, 1992, appointing a Special Master
pursuant to Fed. R. Civ. P. 53(c). The Special Master was
directed to take testimony and prepare a report on the issue
of whether failure of government attorneys to disclose
exculpatory information in their possession constituted
prosecutorial misconduct or fraud upon the court that
misled the court into allowing Demjanjuk to be extradited.
Pursuant to the government's motion, a clarifying order was
entered on August 31, 1992. Copies of the June 5 and
August 17 orders are annexed to this opinion as Appendix 1
and Appendix 2, respectively.
B.
The Special Master, United States District Judge Thomas
A. Wiseman, Jr. of the Middle District [**3] of Tennessee,
conducted extensive hearings over a_ period of
approximately six months and received other evidence by
deposition. After closing proceedings following oral
arguments on April 30, 1993, Judge Wiseman prepared a
comprehensive report (S.M. Report), which he filed with
this court on June 30, 1993.
Because the district court's extradition order had been
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based primarily on the record of earlier denaturalization
proceedings against Demjanjuk, the master included within
the scope of his inquiry actions of government attorneys in
the 1981 denaturalization case and later deportation
proceedings as well as in the extradition case. Chief Judge
Frank Battisti conducted both the denaturalization and the
extradition proceedings. The district court's opinion in the
denaturalization proceedings is reported at 518 F. Supp.
1362 (N.D. Ohio 1981) aff'd per curiam, 680 F.2d 32 (6th
Cir. 1982), cert. denied, 459 U.S. 1036 (1982). The district
court's opinions in the extradition proceeding are reported
at 612 F. Supp. 544 and 612 F. Supp. 571 (N.D. Ohio
1985). [**4] [*340] Demjanjuk's claims of misconduct
consisted of the government's failure to disclose
information that pointed to another Ukrainian guard at
Treblinka, Ivan Marchenko, as “Ivan the Terrible.”
Demjanjuk’s denaturalization and deportation orders were
based on his alleged misrepresentations concerning his
wartime whereabouts and activities at the time he applied
for entry into the United States as a displaced person and in
his application for citizenship. These orders were based
primarily, although not exclusively, on Demjanjuk's failure
to disclose his alleged wartime activities as "Ivan the
Terrible" at Treblinka. The extradition order was based
solely upon the district court's finding that Demjanjuk was
Ivan the Terrible. nl This was the charge on which Israel
sought his extradition, and on which he was ultimately tried
and convicted by an Israeli trial court. As the Supreme
Court of Israel stated, "the fact the appellant [Demjanjuk]
was a guardsman at the Trawniki unit" and similar
background evidence "was not the main matter which was
set before the authorities in the United States and before the
court in [srael, but it was part of the collection of factual
information.” (Translation [**5] of the final section of the
decision of the Supreme Court of Israel in Demjanjuk's
appeal at 21). The "main matter" before the courts in both
countries in all the proceedings, as the Supreme Court of
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Israel observes, and the records of proceedings in the
United States establish, was the "Ivan the Terrible” charge.
nl In the extradition proceedings the district court
considered evidence that Demjanjuk was trained as a
concentration camp guard at a facility in Trawniki, Poland.
The government based its claim that Demjanjuk had served
at Trawniki, and later at the Sobibor extermination camp,
on a passage from a book about the Holocaust, and an
identification badge supposedly issued to guards who were
trained at Trawniki. The district court concluded that a
decision as to the validity of "the Trawniki card"
identifying Demjanjuk was not required in order to support
extradition. 612 F. Supp. at 553.
We directed the parties to file briefs setting forth their
views and arguments respecting the Special [**6] Master's
report and set the matter for oral argument on September 3,
1993. Following full briefing and extended oral argument
the matter was submitted for decision.
IT.
The master made findings of fact, largely based on
credibility determinations, which absolved the government
attorneys of deliberately and intentionally failing to
disclose information that they considered exculpatory.
Judge Wiseman also found that the various proceedings
against Demjanjuk were not affected by political pressures
from congressional sources and various Jewish groups in
the United States. S.M. Report at 27-28. HNI We are
ee
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required to accept the master's findings of fact unless
clearly erroneous. Fed. R. Civ. P. 53(¢)(2).
A.
The master considered six specific claims by Demjanjuk
that acts and omissions of OSI attorneys described therein
constituted prosecutorial misconduct or fraud on the court.
These claims related to statements of various witnesses and
a report of a Polish investigation that had come into OSI's
possession. In each case the master found that government
attorneys had failed to disclose or produce documents or
other materials that should have been subject to disclosure
or production [**7] under outstanding discovery requests
and Fed. R. Civ. P. 26(e). In each instance, however, the
master exonerated the government attorneys on one or
more of the following findings: either that the attorneys did
not believe the materials were within the scope of
outstanding discovery requests; that they believed in good
faith that the materials did not relate to Demjanjuk; or that
a particular attorney then responsible for complying with
requests was not aware of the existence of specified
materials even though other attorneys who worked on the
Demjanjuk cases did know of and had seen the materials.
In making these determinations, the master considered each
of the six claims in light of the successive sets of
interrogatories filed by Demjanjuk during _ the
denaturalization proceedings. At the time he filed the first
set of interrogatories Demjanjuk filed a request for
production of documents and stated [*341] that both were
to be treated as of a continuing nature. Question 2 of the
first set of interrogatories asked whether a statement had
been obtained from any person whose name and address
had been sought in Question |. The respondents argued that
they had complied fully by providing names [**8] of
persons who claimed to have any knowledge of
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. Demjanjuk's alleged activities at Treblinka as requested in
Question | of the first set. The master refused to accept the
OSI attorneys’ arguments, stating:
Thus, the defendant specifically asked for the names of all
witnesses to the defendant's alleged actions, and whether
statements had been obtained from those people. When
read in conjunction with Mr. Demjanjuk's first request for
production, he clearly had requested all witness statements.
S.M. Report at 165. Similarly, the master found that the
government never supplied the names of several witnesses
whose identity was required to be disclosed by Question 1.
Another- set of interrogatories asked specifically about
foreign government reports concerning activities of Ivan
the Terrible at Treblinka. The previously ~ described
materials from the Polish investigation of the Treblinka
atrocities were in the government's possession in 1979, but
were not produced until 1982, after the conclusion of the
denaturalization proceedings. This failure was an
"oversight," according to one government attorney. S. M.
Report at 171. Finally, and most significantly, as early as
1978 or 1979 the government [**9] had information from
official sources within the Soviet Union indicating that
there were two Ukrainian operators of the gas chambers at
Treblinka--Ivan and Nikolai--and that "Ivan Grozny" was a
man named Ivan Marchenko, not [van Demjanjuk.
B.
The master found some of the respondents’ failures
"excusable," some “inadvertent,” and most to have resulted
from the government attorneys' mistaken understanding of
the scope of their duty of production under the discovery
requests made by Demjanjuk. Judge Wiseman stated:
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[A] careful reading of Mr. Demjanjuk's discovery requests
demonstrates that he asked for virtually every piece of
evidence that is at issue in these proceedings. As
demonstrated, the government did not provide the evidence
because it believed that it was under no duty to do so. The
heart of the discovery problems, therefore, was a tragic
misunderstanding.
S.M. Report at 204. Noting that no fewer than eight
government attorneys worked on the Demjanjuk
denaturalization case, the master blamed _ the
misunderstanding with respect to the duty to disclose and
produce materials on "the unstable and fractious character"
of the prosecution team. The difficulties resulting from
rivalries [**10] between OSI and the United States
Attorney's office in Cleveland, and the frequent changes of
attorneys assigned to the case were -compounded, the
master found, by the attitude of the government trial
attorneys that “at times bordered on gamesmanship." S.M.
Report at 205.
The master found that, in interpreting Demjanjuk's requests
and interrogatories so narrowly, the government attorneys
were "playing hardball." S.M. Report at 172. Judge
Wiseman pointed out that when questions arose as to
whether the later of two requests for information from
foreign governments was redundant or inconsistent with the
first request, the government attorneys had several options.
They could have complied with the requests; they could
have sought a protective order if they felt the requests were
redundant or oppressive; or they could have contacted
defense counsel by telephone for a clarification. As the
master stated:
Each of these options would have had the advantage of
providing the defense either with the requested information,
or with notice of the misunderstanding. Although I believe
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that the consequences were unintended, the course they
took-- silently imposing a limitation on the earlier
interrogatory-- [**11] almost certainly misled {defense
[*342] counsel] and endangered Mr. Demjanjuk's ability to
mount a defense.
S.M. Report at 175.
Il.
The Special Master was disturbed by the fact that the
government attorneys continued to be less’ than
forthcoming with materials from foreign sources after
agreeing at a pretrial hearing in the denaturalization case
that the government had superior access to such materials
and should make every effort to obtain them and furnish
them to the defense.
A.
Undisclosed materials from the former Soviet Union and
Poland form the principal basis for Demjanjuk's contention
that OSI attorneys engaged in misconduct that amounted to
fraud. The Supreme Court of Israel reversed Demjanjuk's
conviction as Ivan the Terrible and acquitted him based
largely on statements of Ukrainian guards at Treblinka who
clearly identified Ivan Marchenko as Ivan the Terrible. The
Israeli Supreme Court found that these statements raised a
reasonable doubt as to Demjanjuk's guilt even though
eighteen Jewish survivors of Treblinka and one German
guard there had identified him as "Ivan the Terrible" from
photographs made in 1942 and 1951.
The government did not have all of the statements
relied [**12] upon by the Israeli Supreme Court in its
possession during the various proceedings against
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Demjanjuk in this country. Some of the statements came
from Russian and Ukrainian sources after the breakup of
the Soviet Union. Demjanjuk maintains, however, that
during its investigation prior to the denaturalization trial the
government did obtain from official sources in the Soviet
Union and Poland documents and statements that should
have raised doubts about Demjanjuk's identity as Ivan the
Terrible, and some of which named Marchenko as the
wanted "Ivan." Because the OSI attorneys consistently
followed an unjustifiedly narrow view of the scope of their
duty to disclose, and compartmentalized their information
in a way that resulted in no investigation of apparently
contradictory evidence, Demjanjuk and the court were
deprived of information and materials that were critical to
building the defense.
B.
We briefly describe the claims related to five of these
undisclosed documents and groups of documents,
indicating with parentheses the date each came into the
possession of one or more attorneys at OSI:
1. The Fedorenko Protocols (1978)
This evidence consists of statements received [**13] from
the former Soviet Union including the statements of two
former Treblinka guards, Malagon and Leleko, who
discussed the presence of a gas chamber motorist named
Marchenko. Both the Leleko and Malagon statements are
by Treblinka guards who demonstrate great familiarity with
the operations and the operators of the gas chambers of
Treblinka. They both name a man other than the accused as
the notoriously cruel “Ivan the Terrible" who ran the
motors of the gas chambers. Excerpts from the Leleko and
Malagon statements are annexed to this opinion as
Appendices 3, 4 and 4-A respectively. Also accompanying
this evidence was a list of guards transferred out of the
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Trawniki, Poland training camp on which Demjanjuk's
name did not appear. The survivors identified Ivan the
Terrible as one of the Ukrainian operators of the Treblinka
gas chambers ("motorist"), who was especially cruel and
committed atrocities upon the Jewish victims as he herded
them into the lethal chambers.
2. The Danilchenko Protocols (1979)
This evidence consists of statements received from the
former Soviet Union including a second statement from the
former Treblinka guard Malagon who stated that an "Ivan
Demedyuk [**14] or Ivan Dem'yanyuk" worked at
Treblinka as a cook, that a guard named Marchenko
operated the gas chambers, and who stated that the man he
knew as “Ivan Demedyuk or Ivan Dem'yanyuk" was not
pictured in the photospread shown to him. Jt. App. 178,
179. Danilchenko, a guard at the Sobibor, Poland
death [*343] camp, stated that Demjanjuk was a fellow
guard at Sobibor and that they were transferred from
Sobibor to Flossenburg, Germany together. Respondent's
Appendix 221-22. Although these statements are
inculpatory to the extent they place Demjanjuk at the
Sobibor and Flossenburg concentration camps, Demjanjuk
contended that he was entitled to have them produced
because they were exculpatory with respect to the
Treblinka "Ivan" claims and would permit him to refute the
claim that he was at Sobibor and Flossenburg.
3. The Dorofeev Protocols (1980)
This evidence received from the former Soviet Union
consists of statements of five Soviets who served at the
Trawniki, Poland training camp for guards. Only one
individual recalled the name Demjanjuk and although he
identified two of Demjanjuk's photos in a three-photograph
photospread, he qualified his identification by stating that
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his recollection [**15] of Demjanjuk was poor. Three of
the others stated that transfers between camps were routed
through Trawniki which served as a distribution center. Jt.
App. 155. Again, this evidence has both inculpatory and
exculpatory elements, but Demjanjuk argued that he was
entitled to the statements demonstrating that four of the five
Trawniki witnesses were unable to identify him and that the
fifth was very tentative.
4. "Polish Main Commission" List (1979)
This evidence consists of an article published by the Polish
Main Commission, a government body, which partially
lists names of known guards at Treblinka. The name Ivan
Marchenko appears on the list. Demjanjuk's name does not
appear on the list. The Commission conducted an official
investigation of the activities carried on at Treblinka in
connection with a more extensive investigation of Nazi war
crimes in Poland. Jt. App. 502, 556. At the time OSI
received this list of more than 70 names containing
Marchenko's name, but not that of Demjanjuk, it already
had Leleko's statement identifying "Nikolai" and
Marchenko as two different people who operated the gas
chambers. (Nikolai was identified in documents later
received from former [**16] Soviet sources as Nikolai
Shalayev, who gave a statement in 1950 that he and
Marchenko were the two gas chamber operators. This
evidence was admitted by the Israeli Supreme Court.)
Demjanjuk contended that any attorney considering the
Polish list in combination with the Leleko statement would
have realized that information from foreign governments
pointed to Marchenko, not Demjanjuk, as Ivan the Terrible
and should have produced them in response to Questions |
and 2.
An OSI attorney, George Parker, who was lead counsel in
the denaturalization case prior to his resignation in 1980,
OSA
prepared extensive notes describing and commenting on the
evidence in that case sometime before the trial. Jt. App.
152, 167. In those notes he stated that Leleko had named
"Nickolay" and Marchenko as motorists and that
Marchenko had sword-cut women's breasts, one of the
atrocities charged against Demjanjuk as Ivan the Terrible.
Before the Special Master, Parker testified that he did not
make the connection, because Malagon's statement
indicated that Nikolai or Nickolay was Marchenko's first
name. Thus, the other guard was Ivan, and, he believed,
Demjanjuk. Transcript, Nov. 12, 1992, at 80.
5. |**17] Otto Horn Interview Memoranda (1979)
This evidence consists of "Reports of Interview" from an
OSI investigator, Bernard Dougherty, and a historian,
George Garand, written in 1979 contemporaneously with
an interview of Otto Horn, a former SS guard at Treblinka,
at which Horn identified Demjanjuk as a Treblinka guard.
Although Horn identified Demjanjuk in a photospread, the
investigator and historian both wrote in separate
memoranda that this identification occurred only after Horn
noted that Demjanjuk's photo appeared in both of the two
photospreads and while Demjanjuk's photo from the first
photospread [*344] lay facing up during his examination of
the second photospread. Horn later testified that the photo
in the first spread was not visible to him when he made the
identification from the second.
These memoranda were addressed to Arthur Sinai, Deputy
Director of OSI. A routing slip from Sinai directed
"Stacey" to make two copies of one of these reports and
forward one to Norman Moscowitz. Jt. App. 586. At that
time Moscowitz was working with Parker on _ the
Demjanjuk denaturalization case. He became lead counsel
following Parker's resignation, and actually tried the case.
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[**18]
The statements were not produced to Demjanjuk or
disclosed to the district court in the denaturalization
proceedings when that court received a _ videotaped
deposition of Horn taken some time after the initial
identification from the two photospreads. In the videotaped
deposition Horn stated that he did not see the two
photospreads at the same time--that the first one was put
away out of his sight before he examined the second one.
The district court stated that it found "no aberrations in the
conduct of these identifications which may be said to
detract from the identifications Horn made." 518 F. Supp.
at 1372.
Moscowitz testified before the Special Master that he did
not read the investigator and historian's reports prior to the
denaturalization trial, although he did not deny receiving
them. Transcript, Jan. 14, 1993, at 91-93. Demjanjuk
claims that the OSI attorneys committed misconduct and
fraud on the court in presenting Horn's videotaped
identification testimony without producing the reports that
detailed a highly suggestive identification procedure.
Relevant portions of the Dougherty and Garand reports are
annexed to this opinion as Appendices [**19]5 and 6,
respectively.
od
There is a further consideration with respect to the
Fedorenko Protocols. Following the district court's
judgment in the denaturalization case, Norman Moscowitz.
who was then chief trial counsel in that case, wrote a letter
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to Demjanjuk's counsel, John Martin, with a copy to the
trial judge. Jt. App. 147. In this letter Moscowitz stated that
documents had been received from the Soviet Union (the
Dorofeev Protocols) just before trial and that OSI, for
various reasons, had not disclosed or produced them to
Demjanjuk's counsel. The letter characterized these
materials as "further incriminatory information and support
for the government's case." The letter also stated that
Demjanjuk was being advised of the existence of these
documents in order to make "the record of discovery
complete."
Demjanjuk filed a motion for a mistrial, which the district
court treated as a motion for a new trial. The district court
held a hearing on the motion on May 4, 1981. Demjanjuk's
attorneys argued that the Dorofeev information would have
been valuable to the defense, that four of the five former
Trawniki guards had failed to identify Demjanjuk while
only one had identified [**20] him. Counsel asserted that it
would have been important for the defense to contact these
men, particularly to learn if they had been issued
identification badges like the "Trawniki card" relied upon
by the government. The expert witness at the trial who had
testified that the card appeared to be authentic had stated
that the one exhibited there was the only one he had ever
seen, though he was a Holocaust historian.
The government argued that it had no agreement or duty to
supplement answers to interrogatories and requests. Even if
there was a duty to produce the documents, the government
asserted, Demjanjuk was not prejudiced by this oversight.
During the government's argument, attorney Moscowitz
told the court that he was perfectly willing to give the
defense the witness' statements "as everything else." At this
time Demjanjuk's counsel only had the letter describing the
contents of the statements, not the Dorofeev statements
themselves.
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Chief Judge Battisti ruled that the government had a duty to
provide the names of the five witnesses before or during the
trial. He then ordered government counsel to tum
{*345] over copies of the statements to the defendant and to
the court, and recessed[**21]the hearing until
Demjanjuk's counsel and the court had an opportunity to
review them. Following the recess, the district court heard
further argument and then asked for briefs from the parties
before adjourning the hearing. Jt. App. 767. The court
ultimately ruled that the Dorofeev materials were
cumulative and in fact supported the government's
arguments that Demjanjuk had been at Trawniki and that
Trawniki was a training center for guards assigned to all of
the extermination camps, including Sobibor as well as
Treblinka. 518 F. Supp. at 1384-86.
Demjanjuk argues that, given the district court's ruling that
the government had a duty to disclose and produce the
Dorofeev Protocols, Moscowitz should have realized that
the same duty applied to the Fedorenko Protocols, which
also came from the Soviet Union. Though Moscowitz
represented that his post-trial letter disclosing the existence
of the Dorofeev Protocols was written in order to make the
record of discovery complete, he still did not disclose or
produce ihe Fedorenko documents, which had been in
OSI's possession since 1978.
In his testimony before the Special Master, Moscowitz
admitted reading the Fedorenko [**22] documents prior to
the denaturalization proceedings. Neither he nor Parker,
who also read them, felt that they supplied any help in the
Demjanjuk cases. According to the master, these
documents disappeared in the winter of 1981 after the
denaturalization trial and only resurfaced in 1991 in
response to a Freedom of Information Act case by
Congressman James Traficant of Ohio. At oral argument
before this court, government counsel stated the Fedorenko
99A
documents didn't actually disappear: "They were just put
back in the Fedorenko files. They came with the Fedorenko
case and when the Demjanjuk case was over, they went
back to their Fedorenko file."
It is hard to credit this explanation. The Fedorenko file,
particularly the Leleko and Malagon statements, contain
significant evidence tending to show that a person other
than Demjanjuk was in fact “Ivan the Terrible of
Treblinka." The record contains copies of a letter dated
October 23, 1978, from the General Counsel to Martin
Mendelsohn, chief of litigation in the "Special Litigation
Unit" (SLU) of the Department of Justice, predecessor to
OSI. Jt. App. 215-17. The letter discusses the necessity of
winning the Demjanjuk case, and has as [**23] attachments
all of the SLU's memoranda on Demjanjuk. Among these
memoranda is one from Parker and Moscowitz to the State
Department requesting assistance in obtaining further
information from the Soviet Union. The memorandum
notes that the Soviets had sent materials in June 1978
relating to the investigation of Fedorenko (the Fedorenko
Protocols), and continues: "Please thank the [Soviet]
Ministry for sending these materials which have been very
useful." Jt. App. 218. The October 23, 1978 letter shows
that a copy was placed in the Demjanjuk file. It seems clear
that even if the Fedorenko documents were "just put back
in the Fedorenko files," anyone working with the
Demjanjuk files had the substance of those documents, if
not the documents themselves, available.
There were clear signals that the Fedorenko documents
were significant in the Demjanjuk investigation. As we
have noted, the Fedorenko Protocols contained, inter alia,
the statements of Soviet citizens Malagon and Leleko, both
guards at Treblinka, who identified Marchenko as an
operator of the gas chamber. Leleko's statement clearly said
that there were two Ukrainian operators of the gas
100A
chambers, "Marchenko and Nikolay" and [**24] identified
Marchenko as the "motorist" who conamitted some of the
very atrocities with which Demjanjuk was charged. Leleko
said that Marchenko mutilated Jewish victims, cutting off
breasts of women. Demjanjuk argues that this evidence
provided the strongest possible support for their basic
contention in all the proceedings that Demjanjuk was the
victim of misidentification. Though the Treblinka survivors
who identified Demjanjuk as Ivan the Terrible probably
believed they recognized him from the two photographs
exhibited to them, it had been 30 to 40 years since any of
them had their last opportunity to ovserve the Ukrainian
guard Ivan Grozny. On the other hand, Leleko's statement
was made immediately [*346] after the war. The Israeli
Supreme Court considered more eyewitness survivor
identifications than the American courts; yet, it found that
statements made to Soviet authorities identifying
Marchenko as "Ivan" raised sufficient doubt about the
identification of Demjanjuk to require reversal of
Demjanjuk's conviction and his release. It seems clear that
the American courts considering Demjanjuk's fate should
have had those documents that were in OSI's possession in
1981 that pointed to Ivan [**25] Marchenko as Ivan the
Terrible.
iV.
After working on the Demjanjuk case for several years,
OSI attorney George Parker became convinced that OSI
lacked sufficient evidence that Demjanjuk was Ivan the
Terrible of Treblinka. On February 28, 1980, Parker wrote
a memorandum entitled "Demjanjuk--A Reappraisal,"
addressed to Walter Rockler, Director, and Allan Ryan,
Deputy Director of OSI, setting forth his doubts. He urged
the addressees to read the memorandum and be prepared to
make a decision about how to proceed with Demjanjuk
(the denaturalization case had been pending for more than
101A
two years and was nearing trial) in the near future. This
memorandum is annexed hereto as Appendix 7.
A.
Parker's memorandum discussed the background of the
Demjanjuk investigation, which began when attorneys in
the SLU became aware of a brief reference to Demjanjuk at
Sobibor in a book called Lest We Forget. The book also
referred to a document later denominated the "Trawniki
Card," containing a photograph identified as being that of
Ivan Demjanjuk. It was only after Treblinka survivors who
were interrogated by Israeli police identified the person
pictured on the card as a guard at Treblinka [**26] rather
than at Sobibor that the SLU shifted its focus and began
preparing a case against Demjanjuk as Ivan the Terrible.
All other evidence, including the statements of
Danilchenko and two other Ukrainian guards questioned by
Soviet authorities, identified Demjanjuk as a guard at
Sobibor and Flossenburg, but not at Treblinka.
Furthermore, Parker's memo pointed out, both the Polish
and Soviet governments had compiled lists of guards at
Treblinka, and Demjanjuk's name appeared on neither one,
though "the two Ukrainians who incessantly worked at the
gas chambers were well known." This portion of the
memorandum concludes: "Given these circumstances it is
disturbing, as Norman Moscowitz has pointed out
repeatedly, that Demjanjuk's name does not appear on
either list."
After reviewing the available admissible evidence and the
"flaws" with the Treblinka evidence, the memorandum sets
forth Parker's views of "Strategic Options; Ethical
Responsibilities" of OSI as he sees them. This section of
the memorandum begins with these words:
102A
We have little admissible evidence that defendant was at
Sobibor yet serious doubts as to whether he was at
Treblinka. Even if we may be comforted that we may
have [**27] the right man for the wrong act, the ethical
cannons [sic] probably require us to alter our present
position.
The memorandum then sets forth four options and Parker's
recommendation as to each.
Option | would be to maintain the status quo, that is, to
"proceed with the Treblinka case as presently plead.” (The
denaturalization complaint did not mention Sobibor or
Trawniki, only Treblinka.) Assuming canons of ethics that
caution against prosecutors going forward in a criminal
case in which they have serious doubts apply to the
denaturalization case, Parker "strongly recommended"
against this option. Parker recognized that a
denaturalization proceeding is technically a civil rather than
a criminal action, but expressed the view that the
consequence to a defendant who loses such a case--
deprivation of citizenship--is so severe that this stricture of
the cancsus should be followed.
Option 2 would be to strike claims that Demjanjuk was at
Treblinka and substitute claims that he was at Trawniki and
Sobibor. Parker described this course of action
as [*347] "tactically suicidal" and "a strategic blunder,"
primarily because it placed too much reliance on the
Trawniki Card.
Option 3 would be to dismiss [**28] the case--at lea
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