Thursday, July 30, 2008
J.L. Edmondson
c/o Thomas K. Kahn, Clerk
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St. N.W.
Atlanta, Georgia 30303
RE: Complaint of Misconduct Against U.S. Dist. Judge Donald L. Graham[1]
Dear Judge. Edmondson:
Judge Graham failed to provide me with the notice required under Rule 42(b), Federal Rules Of Criminal Procedure. Please consider this complaint along with my prior complaints to further buttress my argument that Judge Graham has engaged in a pattern and practice of disregarding prevailing legal standards. "A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct." In re Quirk, 705 So.2d 172 (La., 1997). On January 8, 2008, the Committee On Judicial Conduct And Disability, with whom you apparently disagree, proclaimed:
[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.
See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement.
Judicial Misconduct has been defined by Jeffrey
M. Shaman, DePaul University Law,
Steven Lubet, Professor, Northwestern University Law, James
J. Alfini
President and Dean, South Texas College of Law, U.S. Judge Alex
Kozinski, United States Court of Appeals for the Ninth Circuit, in
part as:
Judicial action taken without any arguable legal basis —and without giving notice and an opportunity to be heard to the party adversely affected—is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake.
See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement.
Previous Complaints
I refer you specifically to the following complaints: No. 01-0054;No. 01-0054-Judicial Council;No. 01-0068;No. 01-68-Judicial; Council;No. 02-0052;No. 02-0059;No. 05-0008;No. 05-0011;No. 05-0012;No. 05-0013;No. 05-0020;No. 05-0021 and the Complaints dated June 25, 2008 and July 9, 2008, July 15, 2008, and the Motion for Reconsideration.
Kangaroo Court
A kangaroo court has been defined as”
2 : a court characterized by irresponsible, unauthorized, or irregular status or procedures
3 : judgment or punishment given outside of legal procedure.
See Merriam-Webster Online Dictionary, Retrieved July 30, 2008, from http://www.merriam-webster.com/dictionary/kangaroo court
Judge Graham and the Eleventh Circuit have presided over kangaroo courts. The apparent position of you and your colleagues is; (1) a sua sponte issued pre-filing injunction issued in violation of due process, and hence void, should form the basis of a criminal contempt complaint and conviction; (2)A criminal contempt trial is not required to meet the requirements of due procees. This is the definition of a kangaroo court.
Background Facts
Civil Case No. 99-14027-CV
On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his own motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. As you well know, pre-filing injunctions implicate the right of access to the Courts and therefore due process or notice and opportunity to respond before the sua sponte issued pre-filing injunction is rendered. U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order ). For more case law authority, see http://mmason.freeshell.org/RejectSuaSponte.htm . It is well established that orders issued in violation of due process are void. Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001). Additionally, in this same sua sponte issued pre-filing injunction, Judge Graham makes a so-called "finding of bad faith". “It has become clear to the Court that Mason is proceeding in bad faith.. Such activity is in bad faith and will not be permitted by the Court.” (D.E. #878, pg. 5, 6, “Bad Faith” section). The United States Supreme Court has stated: “A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” (emphasis added) Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991).
Eleventh Circuit Refuses To Review The Sua Sponte Issued Pre-filing Injunction.
There has never been any appellate review of the sua sponte issued pre-filing injunction. The Eleventh Circuit, U.S. Court of Appeal, your court, has refused to review this sua sponte issued pre-filing injunction on multiple occasions. These refusals are inconsistent and even dishonest. The following cases challenged the validity of the sua sponte issued pre-filing [this list is not collectively exhausted]:
· Case No. 02-11476-A
· Case No. 02-14646, Mandamus
· Case No. 04-11894, Mandamus
· Case No. 05-10623-I, Mandamus
See “Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction” , http://mcneilmason.wordpress.com/.
Criminal Contempt Case No. 02-14020-CR-Moore
On May 7 2002, Judge K. Micheal Moore is assigned to handle the "contempt proceedings only" arising out of the civil case, 99-14027-DLG. See “Order of Recusal”, (D.E. #1). The Order to Show Cause, Civil Case No. 99-14027, (D.E. #900) is attached to the “Order of Recusal”, (D.E. #1) as “Exhibit A”.
Judge Graham failed to provide the mandatory notice and hearing that is required in this matter. “[A]n alleged contemnor is entitled to the protection of the due process clause.” Skinner v. W. White, 505 F.2d 685 (5th Cir. 1974)(citing Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 69 L.Ed. 767 (1925)). There is a very specific procedure that must be followed prior to any trial on criminal contempt that must be followed. “An indirect criminal contempt action must be instituted pursuant to the notice requirements set forth in Rule 42(b) of the Federal Rules of Criminal Procedure.” See Criminal Resource Manual at 762, United States Department of Justice. “A criminal contempt sanction must be issued in accordance with the procedures set out in Fed.R.Crim.P. 42.” Martin v. Guillot, 875 F.2d 839;53 Ed. Law Rep. 1113 (11th Cir. 1989); United States v. United Mine Workers, 330 U. S. 258 (1947) (“ Rule 42(b) of the Rules of Criminal Procedure.. requires criminal contempt to be prosecuted on notice stating the essential facts constituting the contempt charged.”). Judge Graham was “required to "state the essential facts constituting the criminal contempt charged and describe it as such." This notice must be given by the judge in open court,"or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest."” Young v. U.S. Ex Rel. Vuitton Et Fils, 481 U. S. 787, 794 (1987); Harris v. United States, 382 U. S. 162,165 (1965). In Martin, the case was reversed because the following procedures were not followed:
(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.
Id. n.7.
There was no notice as required in the instant case. In fact, both Judge K. Michael Moore and the Government denied that a hearing held on April 8, 2002 as a result of summons or Order to Show Cause, Civil Case No. 99-14027, (D.E. #900). issued on March 22, 2002 was the notice required in this matter. In defeating a speedy trial act violation, the government and AUSA Robert Waters went to great lengths to separate the hearing and the notice given on April 8, 2002 and the information filed in December 2002. The Government has stated:
Defendant also complains that his speedy trial rights have been violated. He is mistaken. Defendant bases his argument on the premise that he was arraigned or had an initial appearance on April 8, 2002. This was well before the Information in this case was filed (December 2002). In fact, the hearing before Magistrate Judge Frank J. Lynch had nothing to do with this case.
A careful reading of the transcript of that hearing (Attachment A) reveals it had nothing to do with the case at bar. That hearing was to advise defendant that the Court was considering summary contempt proceedings against him arising out of his civil case. This type of contempt proceeding is separate and distinct from that involved in this case.
See (D.E. #36, pg 3). In order to drive home the point that the hearing and summons held April 8, 2002 was not related to the instant case, the government and AUSA Robert Waters asserted:
It is clear from the order that caused the April 8 hearing, and the transcript from that hearing, that summary contempt was contemplated, and the required notice was given to the defendant at that hearing and the required warning to desist in the behavior causing the contempt. United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965); United States v. Brannon. 546 F.2d 1242 (5th Cir. 1977). As such, this hearing on a summary contempt proceeding had nothing to do with the criminal contempt charge brought months later by Information.
See (D.E. #36, pg 4).
ALLEGATIONS OF MISCONDUCT SUPPORTED BY THE RECORD
Judge Graham failed to provide me with the notice required under Rule 42(b), Federal Rules Of Criminal Procedure.
Judge Edmondson could you please help stop this man from terrorizing me and my family? It appears Judge Graham is above the law and will not be disciplined under any set of circumstances. Judge Edmondson, please keep in mind that other Judges and the legal community is watching how you handle this matter. Judge Graham’s abusive behavior can not and will not be tolerated by me or the American public. I will fight lawless behavior relentlessly. You and your colleagues have created this monster, “Teflon Don”, Judge Graham. You should have disciplined Judge Graham long ago, but you didn’t, in fact you have emboldened him.
Sincerely,
Marcellus M. Mason
214 Atterberry Drive
Sebring, FL 33870
[1] An online version of this complaint is available at: http://mmason.freeshell.org/372c/Complaint_07302008.doc ; This document has embedded clickable links for ease of investigation by the Judicial Council and other interested parties. This complaint will also be featured in a post at http://donaldlgraham.blogspot.com .
