Former U S Attorney Marcos Daniel Jimenz and AUSA Robert H. Waters, Jr.: Lapdogs For U.S. Dist. Judge Donald L. Graham?
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Post-Conviction Relief Attempts
APPLICABLE LEGAL AUTHORITY
egregious acts of misconduct committed by U.S. District Judge Donald L. Graham. U.S. District Judge Donald L. Graham and AUSA, Assistant United States Attorney Robert Waters, Jr. engineered a criminal contempt complaint and conviction out of whole cloth. The contempt complaint had absolutely no legal or factual basis. On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878). At page 5, this very same sua sponte issued pre-filing injunction makes a so called "finding of bad faith". It is well established that pre-filing injunctions and a "finding of bad faith" both require due process. See Right of Access to Courts, Case Law Sua Sponte Pre-filing Injunctions, Bad Faith, below. Judgments or orders issued inconsistent with due process are void. See Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001)("Generally, a judgment is void under Rule 60(b)(4) "If the court that rendered it lacked jurisdiction if the subject matter, or the of the parties, of it acted in a manner inconsistent with due process of law."") This clearly void sua sponte issued pre-filing injunction formed the basis of a criminal contempt complaint and conviction. The power of the U.S. government was abused to achieve an end other than vindicating the rule of law. In conducting a mere "sham trial", AUSA Robert Waters and the district judge used a level of dishonesty and disrespect for the rule of law that is outrageous and breath-taking in that it included the following:
Other matters relating to this post and criminal contempt conviction are detailed at mcneilmason.wordpress.com that include:
Chief Judge Federico A. Moreno Declines to Endorse Judge GrahamChief Judge Federico A. Moreno was sent a letter on March 25, 2008 and told of the behavior described below and declined to endorse Judge Graham's behavior or deny any of the allegations listed below. In a letter dated April 4, 2008, Judge Moreno wrote:
I am in receipt of your letter written to me as a Chief Judge of the Southern District of Florida about actions by Judge Donald Graham. In that letter, you also complained about the Chief Circuit Judge J.L. Edmondson. As you can understand one district judge cannot review the actions of another district judge. This rule applies to the Chief Judge of the District as well. It is before the Eleventh Circuit Court of Appeals in Atlanta that any complaint as to a ruling made by a District Judge can be made,I assure you that any decision rendered by Judge Graham was made in good faith upon what he perceived to be the law. Judge Graham has an impeccable reputation. However, if you feel that a judge has erred, the appellate judges in Atlanta are the ones who can decide what to do about it. Thank you for writing.
This is not a ringing endorsement and is a good indicator of Judge Graham's lawless behavior.
On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, hereafter "sua sponte issued pre-fling injunction " or on his 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.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). This order was rendered when the matter had been on appeal since June 25, 2001. This fact creates a potential jurisdictional problem. See Post, "Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!" to see how the Eleventh Circuit dishonestly handled this problem. In a separate action previously filed by the Highlands County Board of County Commissioners , Case No. 00-14240-CV-Graham, Highlands County was denied their specific request for a pre-filing injunction on February 13, 2001. Judge Graham and his Magistrate Frank Lynch, Jr. rejected their request and concluded:
On March 22, 2002, U.S. District Judge Donald L. Graham initiates a contempt proceeding against Marcellus M. Mason by issuing an Order to Show Cause. See Docket Entry No. 900. In a section entitled "Essential Facts Relating To Criminal Contempt", Judge Graham lists items that he considers to be contempt. At page 7, Judge Graham asserts his legal basis for contempt:
ORDERED AND ADJUDGED that pursuant to 18 U.S.C. § 401 and Federal Rule of Criminal Procedure 42(b), Mr. Mason is directed to show cause why he should not be held in criminal contempt of this court.
Judge Graham next commands:
ORDERED AND ADJUDGED that this matter is hereby set for a status before Magistrate Judge Lynch, at the United States Courthouse, Courtroom 106, 300 South Sixth Street, Fort Pierce, Florida on Monday, April 8, 2002 at 9:30 p.m. Thirty minutes have been set aside for this matter. Mr. Mason is advised that failure to attend this hearing could result in the issuance of a warrant for his arrest.
April 8, 2002. Mason attends a "status conference" on the pending criminal contempt charge. (D.E. #905). Subsequent to this date, the government as represented by AUSA Robert Waters argues successfully that this hearing is not related to the criminal contempt information filed in this matter in order to defeat a speedy trial act violation; see Criminal Contempt Procedure, below. As a consequence, the hearing required under Rule 42 was never held.
May 7, 2002 Judge Graham issues an order recusing himself from Case No. 99-14027-CIV-Graham:
[T]he undersigned district judge, to whom the above styled case has been assigned, hereby recuses himself for contempt proceedings only and refers the case the Clerk of Court for reassignment for contempt proceedings only pursuant to 28 U.S.C. § 455 and Local Rule 3.6.
See (D.E. #908).
Eleventh Circuit Declines Review of Sua Sponte Issued Pre-filing Injunction
The criminal information described below was filed on December 3, 2002. (D.E. #6). The information alleges a violation of the sua sponte issued pre-filing injunction of September 20, 2001. On the date the information was filed, the Eleventh Circuit had refused to review the sua sponte issued pre-filing injunction 6 times in the following cases:
The reasons for refusing to review the sua sponte issued pre-filing injunction is different each time. Additionally, since filing of the criminal contempt complaint, the Eleventh Circuit has refused to review the sua sponte issued pre-filing injunction on two other occasions:
The Assistant U.S. Attorney, Robert Waters was fully of aware of these attempts at appellate review when he files the information on December 3, 2002; however, he just mocks Mason with statements like the following:
Defendant acknowledges in his motions that the proper legal method to attack a judge's order to cease filing pleadings is to attack said order In the appellate courts. Defendant attempted to do this, but the Eleventh Circuit Court of Appeals and the United States Supreme Court have refused to give him relief.
Thus, the order of the District Court enjoining defendant from filing additional pleadings remained in full force and effect. It seems that defendant, unsatisfied that the Appellate Courts disagreed with him, decided at that point to willfully violate the District Court's order and file more pleadings. This is the basis of the contempt charge. Defendant silly cannot ignore a court's order because he disagrees with it or because an appellate court does not see the order in the same light as the defendant. Despite defendant's lengthy recounting of his legal attacks on the District Court's order, nothing in his motion supports dismissal of the contempt charge. In reality, defendant's motions show that the basis for his legal position is simply that he disagrees with the rulings of the District Court. Disagreement is a right, but defiance is not. Just because the defendant disagrees with the District Court and cannot get an appellate court to agree with him is no excuse or basis for the defendant to willfully defy the court's order, as he has. Defendant is clearly in violation and contempt of that order and must be held accountable for his actions.
Criminal Case No. 02-14020-KMM: A Kangaroo Court
On May 7 2002, Judge K. Michael Moore is assigned to handle the "contempt proceedings only" arising out of the civil case, 99-14027-DLG. See (D.E. #1).
On May 15, 2002, Leon Watts files a Notice of Assignment indicating that the Federal Public Defender has been assigned the case. See (D.E. #2). There is no other activity in the case until November 27, 2002.
November 27, 2002. Mason submits a motion to dismiss, "First Motion To Dismiss" (D.E. #4), and a motion to drop counsel, (D.E. #3). Among a host of other things, Mason viciously attacked the information because it failed state a violation of a “valid order” as required under 18 U.S.C. §401(3) and because the speedy trial act was violated. Mason asserted that the sua sponte issued pre-filing injunction of September 2001 relied upon by the Government was void because it was issued in violation of due process and without the constitutionally mandated notice and opportunity to respond; and as a result could not possibly serve as the predicate order necessary to bring a criminal contempt complaint.
December 3, 2002 Criminal information is filed. (D.E. #6). This information comes seven months after the Order to Show Cause, or summons was issued on May 7, 2002.This information states:
Beginning on or about September 20, 2001, and continuing to on or about November 1, 2002, in Highlands County, Dade county, and elsewhere, in the Southern District of Florida, the defendant ,MARCELLUS M. MASON, Jr., did willfully and knowingly disobey and resist a lawful order of a Court of the United States , that is, the order issued by the Honorable Donald L . Graham , United States District Judge, on September 20, 2001, in the Southern District of Florida, in the case of Marcellus M . Mason v. Highlands County Board of County Commissioners , et al ., Case Numbers : 99-14027-CIV-GRAHAM/LYNCH/ … by repeatedly filing pleadings, motions, memoranda, and directly contacting other litigants in the above cited cases, after specifically being enjoined from and ordered not to file any such pleadings or contact other litigants by Court Order dated September 20, 2001, in violation of Title 18, United States Code, Section 401(3).
July 30, 2003. The matter is place in suspense. (D.E. 9). "The above-styled cause is hereby transferred to the Clerk's Suspended until such time as the Defendant is brought forward for trial."
January 22, 2004. Defendant’s Motion To Depose Judge Graham And Judge Moore was certified as being mailed. There is no record of this document on file.
March 8, 2004 Mason submits his second motion to dismiss. (D.E. #35).
March 10, 2004 The Government and AUSA Robert Waters submits his response to both pending motions to dismiss [ (D.E. #4) and (D.E. #35)]. See Government's Response, 6 pages, (D.E. #37). The Government makes no legal argument as to why the sua sponte issued pre-filing injunction is not void. Three pages are used for background and personal philosophy. Pages 4 and 5 are used to defeat the speedy trial act violation that Mason had argued in both his motions to dismiss. The Government makes no argument as to why Mason's Sixth Amendment right to a speedy has not been violated. The Government makes no argument with respect to the "collateral bar doctrine" even though Mason argues against its application.
March 15, 2004. The Court waited 16 months to moot the first motion to dismiss and only decided to moot the First motion to dismiss on the day of the bench trial. On November 27, 2002, Mason presented the court with the first motion to dismiss the information. (D.E. #4). Among a host of other things, Mason viciously attacked the information because it failed state a violation of a “valid order” as required under 18 U.S.C. §401(3) and because the speedy trial act was violated. Mason asserted that the sua sponte issued pre-filing injunction of September 2001 relied upon by the Government was void because it was issued in violation of due process without the constitutionally mandated notice and opportunity to respond; and as a result could not possibly serve as the predicate order necessary to bring a criminal contempt complaint. This Court took no action on this motion until March 15, 2004, or 16 months after it was filed. On or about March 8, 2004, Mason submitted his Second Motion To Dismiss. (D.E. #35). On March 15, 2004, this Court said the motion to dismiss , (D.E. #4), was moot. See (D.E. #44)(“ Mason also filed Motions to Dismiss and for Declaratory Relief on November 27, 2002 (DE #4). Because they were filed before Mason was formally charged, those motions are denied as moot.”). Additionally, the court decided that the speedy trial act had not been violated because the hearing and show cause order of April 8, 2002 did not relate to the current information or complaint.
March 15, 2004. Judge Moore waits until the day of the bench trial to deny Defendant’s Motion To Depose Judge Graham And Judge Moore that was submitted on January 22, 2004. There is no record of this document being filed.
Prejudicial Pretrial Management: Engineering a Kangaroo Court
It is difficult not to conclude that the case was managed to achieve the desired outcome.
AUSA Robert Waters was apparently unhappy with lawful criticism being leveled at Judge Graham by Mason over the Internet. AUSA Waters used his office to attempt to subdue criticism of Judge Graham that he, and presumably Judge Graham disagreed with. These efforts included an attempt to modify or terminate bond and violation of a parole condition that precluded Mason from using the Internet. This story is fully documented at mcneilmason.wordpress.com, See Power of US Government Used To Suppress Criticism of U.S. Dist. Judge Graham.
Each of the attempts at post-conviction relief has centered around getting the sua sponte issued pre-filing injunction declared void. To date these efforts have failed, however this failure to obtain relief is not what is remarkable but what is remarkable is the process itself and has been characterized by the following:
A Motion was presented in the Southern District of Florida To Vacate This Sua Sponte Issued pre-filing Injunction Under Rule 60(b)(4) Fed.R.Civ.P., on June 8, 2007. See Motion To Vacate, 23 pages. This motion, among other things, sought to have the sua sponte issued pre-fling injunction declared void pursuant to Rule 60(b)(4), Fed.R.Civ.P. The Court, having declared a sua sponte issued pre-filing injunction void, would no longer have a legal basis for a violation of void order and the criminal contempt complaint. The Highlands County Board of County Commissioners, the original Defendant in the civil case [99-14027-CV-GRAHAM] in which the sua sponte issued pre-filing injunction was rendered, refused to file a brief. The Government, who filed the information in the criminal case [02-14020-CR-Moore], replied on August 2, 2007. The Government's Response as filed by AUSA Robert Waters does not cite the record, or cite one legal authority for its apparent position that a sua sponte issued pre-filing injunction is not void and may form the basis of a criminal contempt complaint. See The Government's Response (5 pages). On or about 10/19/07, Marcellus Mason was jailed until 11/29/2007 for an alleged probation violation due to a criminal contempt conviction based upon this sua sponte issued pre-filing injunction. This matter is online under the court's electronic filing system under Case No. 02-14020, Judge K. Michael Moore, presiding. On October 16, 2007, Magistrate John J. O'Sullivan rendered a Report and Recommendation, "R&R", and apparently ruled that a clearly void order may become valid by a later filed contempt charge. Judge O'Sullivan in this post-conviction request for relief, sua sponte, without support from the government, invokes the collateral bar doctrine to avoid review of the sua sponte issued pre-filing injunction. Stated alternatively, Magistrate John J. O'Sullivan has explicitly ruled that a void order maybe "bootstrapped" or become valid by a later filed criminal contempt complaint. On 12/06/2007, the Report and Recommendation of the Magistrate was returned undeliverable to the Court. See Docket. This "R&R" was rendered while Marcellus Mason was in jail. The R&R prevaricates with respect to several issues, but expressly states that a clearly void sua sponte issued pre-filing injunction may form the basis of a criminal contempt complaint and conviction. On December 14, 2007, Mason filed a motion with the Court notifying it that he did not receive the R&R because he was in jail and the the R&R was returned to sender by the USPS because the R&R was addressed improperly. See Docket Entry No. 132. Upon reading the R&R after getting out of jail, Marcellus Mason amended his original motion to vacate the conviction and only sought relief with respect to a declaration that a sua sponte pre-filing injunction is void. See Docket Entry No. 134. On December 21,2007, Marcellus Mason filed objections to the R&R. See Docket Entry No. 133. On 01/04/2008, Judge K.M. Moore ordered the government to file a response. See Docket Entry No. 136. On 01/07/2008, AUSA Theodore Cooperstein, filed a response as ordered by the Court, but declined to inform the court legal support as to how a clearly void sua sponte issued pre-filing injunction may form the basis of a criminal contempt complaint. See Docket Entry No. 137. On 03/04/2008, Judge K.M. Moore denied the Motion. See Docket Entry No. 141. Specifically, Judge K.M. Moore did not address the underlying motion challenging the validity of the sua sponte issued pre-filing injunction instead he "split the baby" by denying the motion to file a response to the un-received Report and Recommendation and ordering Marcellus Mason off of supervised release probation. (D.E. #141). Why would a person recently accused of probation violation be permanently released from probation?
A Notice of Appeal has been filed and is awaiting an in forma pauperis motion. See Docket Entry No. 142 and Docket Entry 143.
Rule 60(b)(5) Fed.R.Civ.P. Motion
A motion to vacate the sua sponte issued pre-filing injunction was submitted on April 23, 2008. (D.E. #146). Mason attacks the sua sponte issued pre-filing injunction as being inconsistent with due process because it was issued without notice and opportunity to respond. This motion has not been responded to.
A petition for coram nobis was filed on April 15, 2008. (D.E. #150). The Government did not respond until July 11, 2008. (D.E. #153). Mason attacks the sua sponte issued pre-filing injunction as being inconsistent with due process because it was issued without notice and opportunity to respond. The Government failed to argue that the sua sponte issued pre-filing injunction was not issued in violation of due process and therefore void. There is no discussion about the validity of the sua sponte issued pre-filing injunction.
A petition for habeas corpus was filed on April 16, 2008. (D.E. #152). The Government did not respond until July 11, 2008. (D.E. #153). Mason attacks the sua sponte issued pre-filing injunction as being inconsistent with due process because it was issued without notice and opportunity to respond. The Government failed to argue that the sua sponte issued pre-filing injunction was not issued in violation of due process and therefore void. There is no discussion about the validity of the sua sponte issued pre-filing injunction.
AUSA Robert Waters, given the law and the facts of this matter should not have needed any specific court cases to know that a criminal contempt complaint cannot be based upon a void order which by definition is a legal nullity; however ample case law existed at the relevant time. This case is controlled by In re Green, 369 U.S. 689, 82 S. Ct. 1114 (1962) where the U.S. Supreme Court reversed a criminal contempt conviction that was based upon a restraining order that was issued without notice and opportunity to be heard. Similarly, in this matter, Judge Graham issued a pre-filing injunction without notice and opportunity to be heard is indistinguishable from Green. accord Levine v. Comcoa Ltd, 70 F.3d 1191 n.7 (11th Cir. 1995) ("We accept that, where there has been no notice to the parties and no hearing on the various factors involved in considering a preliminary injunction, a TRO continued past the Rule 65 limit falls of its own weight."); United States Of America v. Straub, 2007 U.S. App. LEXIS 27494,*;508 F.3d 1003;21 Fla. L. Weekly Fed. C 233 (11th Cir, 2007)( (citing In re Green, 369 U.S. 689, 82 S. Ct. 1114 (1962))(“The Supreme Court held that the state court violated the defendant's due process rights when it held him in contempt without providing him with a hearing to establish whether the restraining order was preempted by federal law.”); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 445 (1974)(“There being no order to violate, the District Court erred in holding the Union in contempt”). Dunn v. United States of America, 388 F.2d 511 (10th Cir. 1968)(reversed and remanded for a determination of whether court would have punished petitioners for contempt had it known that the restraining order petitioners violated was invalid); Donovan v. City of Dallas, 377 U.S. 408 (1964)( remanded to the state trial court to consider whether it would have punished petitioners for contempt had it known that the restraining order petitioners violated was invalid.)
The Court failed to provide the mandatory notice and hearing that is required in this matter. 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.”). The court 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.
The Court 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).
On March 15, 2004, the Court denied the motion to dismiss due to a violation of the Speedy Trial Act because:
Mason is charged with criminal contempt of court in violation of 18 U.S.C. § 401(3). Mason argues that his rights to a speedy trial have been violated, asserting that an April 8, 2002 appearance before the Honorable Frank J. Lynch, Jr., United States Magistrate Judge, started the speedy trial clock for purposes of (1) filing an indictment or information and (2) commencing trial. However, that hearing, which occurred nearly eight months before the information in this criminal action was filed, provided Mason notice that the court was considering summary contempt proceedings against him, as provided for under 18 U.S.C. § 401 and Fed. R. Crim. P. 42(b). Mason's appearance before Magistrate Judge Lynch served as a notice of the summary contempt proceedings contemplated by the Honorable Donald L. Graham, United States District Judge. (See Judge Graham's March 22, 2002 Order to Show Cause, case no. 99-14027-CIV, DE #900.) Mason was neither arrested nor otherwise summoned for the instant charge, thus defeating his claim of a speedy trial violation under 18 U.S.C. § 3161(b) ("Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.").
See (D.E. #44).
18 U.S.C. § 401 states:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—
"Federal Rule of Criminal Procedure 12(b)(3)(B) provides, in relevant part, that a motion alleging a defect in the indictment must be made before trial, but that the court may hear a claim that the indictment fails to invoke its jurisdiction at any time while the case is pending. Fed. R. Crim. P. 12(b)(3)(B)." See D. C. Docket No. 03-14028-CR-KMM, United States v. Searcy, No. 07-12726; 2008 U.S. App. LEXIS 11298, n. 2,* (11th Cir. 2008) (This is a case presided over by Judge K. Michael Moore). "[T]he district court may, “at any time while the case is pending, . . . hear a claim that the indictment or information fails to invoke the court’s jurisdiction or to state an offense.”" id. A motion to dismiss the information and show cause order was submitted on November 27, 2002. (D.E. #4). However, the district court waited until the day of the trial, March 15, 2004 to moot the motion. See (D.E. #44)(“ Mason also filed Motions to Dismiss and for Declaratory Relief on November 27, 2002 (DE #4). Because they were filed before Mason was formally charged, those motions are denied as moot.”).
“As a general rule, a party may not violate an order and raise the issue of its unconstitutionality collaterally as a defense in the criminal contempt proceeding.” In re Providence Journal Co., 820 F.2d 1342, 1346 (1st Cir. 1986). However, there are situations, however, where the collateral bar rule is inapplicable.
First, if the issuing court lacks subject-matter jurisdiction over the underlying controversy or personal jurisdiction over the parties to it, its order may be violated with impunity. (internal citations omitted). "In such a case, the original order is deemed a nullity, and the accused contemnor cannot be fairly punished for violating nothing at all." (internal citations omitted)..
Second, the collateral bar rule presupposes that adequate and effective remedies exist for orderly review of the challenged ruling; in the absence of such an opportunity for review, the accused contemnor may challenge the validity of the disobeyed order on appeal from his criminal contempt conviction and escape punishment if that order is deemed invalid.
Third, the order must not require an irretrievable surrender of constitutional guarantees. (internal citations omitted). In such a case, the only way to preserve a challenge to the validity of the order and repair the error is to violate the order and contest its validity on appeal from the district court's judgment of criminal contempt.
Finally, court orders that are transparently invalid or patently frivolous need not be obeyed.
Neither AUSA Robert Waters, nor his successor, Theodore Cooperstein ever attempted to invoke the collateral bar doctrine. Nevertheless, Mason contended that all exceptions were applicable to this matter.
The lack of subject matter jurisdiction exception
The lack of subject matter jurisdiction exception was applicable in this case. The case was noticed for appeal on June 25, 2001 and the sua sponte issued pre-filing injunction was rendered on September 20, 2001. “It is well-settled law that the filing of a notice of appeal divests the district court of jurisdiction over a case.” WEAVER v. FLORIDA POWER & LIGHT COMPANY, 172 F.3d 771,(11th Cir. 1999)(citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982)). “The general rule regarding divestiture of jurisdiction, however, does not apply to collateral matters not affecting the questions presented on appeal.” id. Mason would have gladly conceded that Judge Graham had jurisdiction to enter the sua sponte issued pre-filing injunction of September 20, 2001, but this concession was not possible given the Eleventh Circuit's behavior in the direct appeal, Case No. 01-13664. In this appeal, the Eleventh Circuit struck Mason's brief for arguing against the sua sponte issued pre-filing injunction because they claimed it was "beyond the scope of appeal". However, when the Eleventh Circuit affirmed Judge Graham they included the very same sua sponte issued pre-filing injunction in order to affirm Judge Graham. This constituted a dishonest and despicable act. See blog post "Putrid Dishonesty:Beyond the Scope of Appeal". The Eleventh Circuit had it both ways.
Adequate and effective remedies exception
The adequate and effective remedies exception would apply in this matter because as documented above the Eleventh Circuit refused to review the sua sponte issued pre-filing injunction. On the date that the information was filed, the Eleventh Circuit had declined to review the sua sponte issued no less than six times. There was no judgment by the Eleventh Circuit as to validity of the sua sponte issued pre-filing injunction. AUSA Robert Waters knew that Mason had attempted appellate review, however AUSA Waters just mocked Mason. See Eleventh Circuit Declines Review of Sua Sponte Issued Pre-filing Injunction, above.
Irretrievable surrender of constitutional guarantees exception
The irretrievable surrender of constitutional guarantees exception would have been applicable in this case, because of the Eleventh Circuit's refusal to review the sua sponte issued pre-filing injunction. The right of access to the courts is constitutionally protected. Additionally, the right of access to the Courts is protected by the first amendment. It is well established that the loss of first amendments rights even for minimal amount of times constitutes irreparable harm. “[I]t is well established that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1271-1272 (11th. Cir. 2006); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The Eleventh Circuit left Mason no other alternative but Hobson's Choice. Either violate the sua sponte issued pre-filing injunction and hope to get appellate review or forever lose his right of access to the courts to remedy unlawful acts committed against him by Highlands County.
Transparently invalid exception
The sua sponte issued pre-filing injunction is transparently invalid because its' issuance was inconsistent with due process due to a lack of notice and opportunity to respond. Courts have not defined "transparently invalid" with any real specificity which makes this a largely subjective component. However, a void order, a legal nullity, would have to be "transparently invalid". As set forth above, the government has never argued that the sua sponte issued pre-filing injunction was not void. See Right of Access to Courts, Case Law Sua Sponte Pre-filing Injunctions, Bad Faith.
Local Rule 7.1.C which states: C. Memoranda of Law. Each party opposing a motion shall serve an opposing memorandum of law not later than ten days after service of the motion as computed in the Federal Rules of Civil Procedure. Failure to do so may be deemed sufficient cause for granting the motion by default.
The U.S. Supreme Court, "SCOTUS", On the Importance of Due Process“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution." id. 161. "Fairness of procedure is "due process in the primary sense." Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681. In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
Right of Access To Courts is Constitutionally ProtectedThe right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)("the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition."). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)("The right of access to the courts is indeed but one aspect of the right of petition."). See Tennessee v. Lane, 541 U.S. 509 (2004)((recognizing "the fundamental right of access to the courts"); Procunier v. Martinez, 416 U.S. 396 (1974)("The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.").
Orders Issued Inconsistent With Due Process Are VoidA judgment is void if the rendering court acted in a manner inconsistent with due process of law. Wright & Miller, Federal Practice and Procedure § 2862. "A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere." World-Wide Volkswagen Corp. V. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “'No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8, 15 (1907). Generally, a judgment is void under Rule 60 (b) (4) if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if acted in a manner inconsistent with due process of law. E.g., s Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001); U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990);Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997); Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown 84 F.3d 137, 143 (5th Cir. 1996)
Boch Oldsmobile, at 909 F.2d 657, 661 (1st Cir. 1990). Lops v. Lops, 140 F.3d 927, 941 n. 19(11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter v. Fenner, at 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). Anderson v. Dunn, 19 U.S. 204, 217 (1821)(“the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.”).
US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED "SUA SPONTE" PRE-FILING INJUNCTIONS.
A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. 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 ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)("Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.") ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court's order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions "may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.").Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005);Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987).
, 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.,501U.S. 32, 50 (1991).
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