Table Of Contents
CRIMINAL PRETRIAL MOTIONS FILED
Marcellus Mason simply seeks to have a sua sponte issued filing injunction issued without notice and opportunity to respond tested in the Courts for validity and to have that opinion published for public scrutiny.
Are US Attorney R. Alexander Acosta, AUSA Theodore Cooperstein, and AUSA Robert Waters U.S. Judge Donald L. Graham's lapdogs?
U.S. Dist. Judge Donald L. Graham, US Attorney R. Alexander Acosta,
AUSA Theodore Cooperstein, and AUSA Robert Waters used a clearly void
sua sponte issued pre-filing injunction to form the basis of a
criminal contempt complaint. On September 20, 2001
[Civil Case No. 99-14027-CV-Graham,
Mason v. Highlands County], 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,Page 3 )
. Page 3 of this document boldly asserts:
Bad FaithSee Docket Entry Number 878, (D.E. # 878,Page 3 ). See law on bad faith finding.
It is black letter law and a bedrock legal principal that an order issued in violation of due process is void and a legal nullity. See Definition of Void, below. On December 3, 2002 [Case No. 02-14020-CR-Moore], AUSA Robert Waters initiated a contempt complaint by way of an information with this clearly void sua sponte issued pre-filing injunction of September 20, 2001. See Information, below. “A void judgment is from its inception a legal nullity.” U.S. v. Boch Oldsmobile, 909 F.2d 657, 661 (1st Cir. 1990). A criminal contempt conviction was obtained on based upon this sua sponte issued pre-filing injunction of September 20, 2001by way of a bench trial. This criminal contempt conviction led to Marcellus Mason being jailed for 41 days and sentenced to 5 years of supervised probation. See Probation.
The consequences of this sua sponte issued pre-filing injunction has been devastating and disastrous. For an example, this sua sponte issued pre-filing injunction was used to award $200,000 against Marcellus Mason who was and is indigent. See Consequences, below.
Other than Marcellus Mason, no one has argued the legality or illegality of the sua sponte issued pre-filing injunction of September 20, 2001.
US Attorney R. Alexander Acosta, AUSA Theodore Cooperstein, and AUSA Robert Waters have had multiple opportunities to assert demonstrate that this sua sponte issued pre-filing injunction is not void, but have adamantly refused to do so.
The Eleventh Circuit has asserted every dishonest trick in the book
to avoid passing on the legality of a sua sponte issued
pre-filing injunction. See Appellate
Review. This is truly remarkable and remarkable story of
Judge K. Michael Moore has carefully avoided discussing the legality of a sua sponte issued pre-filing injunction.
On November 25, 2002, A Defendant’s Motion To Dismiss, Defendant’s Motion For Declaratory Relief, Defendant’s Motion For A Due Process Hearing, And Defendant’s Motion For Publication was submitted on November 25, 2002. (DE-4). The Government never filed a response. Among a myriad of other matters, this motion specifically argues the following:
This motion languished and was never addressed by the Court. However a Second Motion to Dismiss was partially addressed by the Court. See (DE #44). Judge Moore simply stated:
Mason's motions for due process hearing and publication are meatless . The due proces s claim concerns Judge Graham's September 20, 2001 Omnibus Order enjoining Mason from filing pleadings or new lawsuits without first obtaining court permission . The proper venue for contesting the constitutionality of that order is the United States Court of Appeals, not this Court. Indeed, the Eleventh Circuit dismissed Mason's appeal of the September 20, 2001 Omnibus Order. (Case no . 99-14027-CIV, DE #922 .)
Judge Moore knows full well that the Eleventh Circuit, US Court simply ignored this issue on direct appeal [Case No. 01-13664] and in a mandamus petition [Case No. 01-15754] . See Appellate History, below. As a matter of fact, in the direct appeal, [Case No. 01-13664] , the Eleventh Circuit struck Mason's brief for arguing against the sua sponte issued pre-filing injunction of September 20, 2001 and then turned around and used it to affirm Judge Graham. There has never been any appellate review of the sua sponte issued pre-filing injunction.
Rule 60(b)(4) Fed.R.Civ.P. MOTION
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, seeks to have the sua sponte issued pre-fling injunction declared void pursuant to Rule 60(b)(4), Fed.R.Civ.P.
The sua sponte issued pre-filing injunction of September 20, 2001 is invalid due to the following:
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 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. 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. 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 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 unreceived Report and Recommendation and ordering Marcellus Mason off of supervised release probation.
A Notice of Appeal has been filed and is awaiting an in forma pauperis motion decision. See Docket Entry No. 142 and Docket Entry 143.
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
01-14 074 -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)
A bench trial was scheduled for
March 15, 2004. However, on
March 15, 2004, the day of trial several important and dispositive
motions were outstanding or pending and NOT resolved. On the day of the
trial, Judge Moore only gave a written opinion the motions to dismiss which was
distributed to me on the trial date, March 15, 2004.
(DE #44). Several other important motions were only addressed and
denied orally, the day of trial, March 15, 2004. The following motions
were pending and unresolved the day of the trial:
BENCH TRIALA bench trial was held on March 15, 2004. The Government called no witnesses and I was not allowed to call Judge Graham as a witness. I was also denied a continuance even though dispositive motions and other important motions were decided the day of trial March 15, 2004 had no chance.
There has never been any appellate review of the pre-filing injunction of September 20. 2001. The Eleventh Circuit has had multiple opportunities to review the September 20, 2001 order, but has declined to do so for a different reason each time. Consider the following futile attempts at appellate review:
The Eleventh Circuit has used the in forma pauperis statutes to routinely deny review of the sua sponte issued pre-filing injunction ofSeptember 20, 2001. The Eleventh Circuit has claimed that each and every IFP petition filed by Mason was frivolous for one reason or another and never the same reason. The U.S. Supreme Court has stated that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.”
A void order has no force or effect and is a nullity. See Gotshall v. Taylor, 196 So. 2d 479, 481 (Fla. 4th DCA 1967).; GOOLSBY v. STATE, Case No. 5D04-3219, (Fla. t5th DCA 2005) .
In a very long line of cases, U.S. Circuit Courts of Appeal and other jurisdictions have consistently, without variation, rejected sua sponte issued filing injunctions or pre-filing injunctions issued without notice and opportunity to respond. In Weaver v. Sch. Bd., 2006 U.S. App. LEXIS 8128 (unpublished) (11th Cir. 2006), the Court held that a litigant was entitled to “notice and an opportunity to be heard” before a restriction was imposed on the litigant’s 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 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); Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997)(vacated because the litigant “was not ;warned or otherwise given notice that filing restrictions were contemplated”); MLE Realty Assoc. v. Handler, 192 F.3d 259,262 (2nd Cir., 1999)(vacating a sua sponte issued injunction because notice was not given). Lau v. Meddaugh, 229 F.3d 121, 123 (2nd Cir., 2000)(vacating a sua sponte issued injunction); 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 sua sponte without providing the litigant with notice and an opportunity to be heard.”). Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); Williams v. Cambridge Integrated Services Group, 2005 U.S. App. LEXIS 18624,*7;148 Fed. Appx. 87 (3rd Cir. 2005)( reversing and holding that: “Sufficient notice and opportunity to be heard are essential prerequisites to the entry of a pre-filing injunction.”); Gonzalez v. Usher Feiner, 2005 U.S. App. LEXIS 8370,*12;131 Fed. Appx. 373 (3rd Cir. 2003)(reversing a sua sponte issued injunction and questioning whether a pre-filing injunction is warranted based on Gonzalez's history of filing six frivolous cases in ten years.). “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, 2006U.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); De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir.), cert. denied, 498 U.S. 1001, 111 S.Ct. 562, 112 L.Ed.2d 569 (1990)(reversed for failure to notice of pre-fling injunction); 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, 8, 834 F.2d 81, 83 (3d Cir. 1987).
A void judgment is from its inception a legal nullity.
U.S. v. Boch Oldsmobile 909 F.2d 657, 661 (1st Cir. 1990)
A void judgment is from its inception a legal nullity. U.S. v. Boch Oldsmobile 909 F.2d 657, 661 (1st Cir. 1990). See 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.”); Lops v. Lops, 140 F.3d 927, 941 n. 19(11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter, at136 F.3d 1006 (“[a] void judgment is one which, from its inception, was a complete nullity and without legal effect.”).
FINDING OF BAD FAITH
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).
“Courts must afford a sanctioned party due process, both in determining the bad faith required to invoke the court's inherent power to impose sanctions and in assessing fees.“ In re Sunshine Jr. Stores, Inc., 2006 U.S. App. LEXIS 17990,*;456 F.3d 1291; (11th Cir. 7/18/2006) (11th Cir., 2006); Campos v. City Of Naples, 2006 U.S. App. LEXIS 26697,*;202 Fed. Appx. 381 (11th Cir. 2006)(citing Oakes v. Horizon Financial, S.A., 259 F.3d 1315, 1320 n.5 (11th Cir. 2001)) (notice and opportunity to be heard required as part of sanctions process). Even the award of sanctions under the court's inherent power must "comply with the mandates of due process." (quoting Chambers v. NASCO, 501 U.S. 32, 49-50, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991)).
(Rev.9/00) Conditions of Probation and Supervised Release
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
To Marcellus M. Mason, Jr. Docket No. 02-14020-CR-MOORE
SD/FL PACTS No. 79962
Address 218 Florida Avenue Sebring
, FL 33870
Under the terms of this sentence, the defendant has been placed on probation by the Honorable K. Michael
Moore , United States District Judge for the Southern District of Florida. The defendant's term of supervision is for a period of five (5) years , commencing June 29, 2004
While on probation, the defendant shall not commit another federal, state, or local crime. The defendant shall not illegally possess a controlled substance.
If the judgment imposed a fine or a restitution obligation, it shall be a condition of probation/supervised release that the defendant pay any such fine or restitution that remains unpaid at the commencement of the term of supervision in accordance with any schedule of payments set forth in the Criminal Monetary Penalties sheet of the judgment. In any case, the defendant should cooperate with the probation officer in meeting any financial obligations.
The defendant shall report in person to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons (supervised release cases only).
[X] The defendant shall not possess a firearm, destructive device, or any other dangerous weapon.
For offenses committed on or after September 13, 1994:
The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment or placement on probation and at least two periodic drug tests thereafter.
The above drug testing condition is suspended based on the court's determination that the defendant poses a low risk of future substance abuse.
It is the order of the Court that you shall comply with the following conditions:
(1) The defendant shall not leave the judicial district without the permission of the court or
(2) The defendant shall report to the probation officer and shall submit a truthful and complete
written report within the first five days of each month;
(3) The defendant shall answer truthfully all inquiries by the probation officer and follow the
instructions of the probation officer;
(4) The defendant shall support his or her dependents and meet other family responsibilities;
(5) The defendant shall work regularly at a lawful occupation unless excused by the probation
officer for schooling, training, or other acceptable reasons;
(6) The defendant shall notify the probation officer ten days prior to any change in residence or
(7) The defendant shall refrain from excessive use of alcohol and shall not purchase, possess,
use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substance, except as prescribed by a physician;
(8) The defendant shall not frequent places where controlled substances are illegally sold, used,
distributed, or administered;
(9) The defendant shall not associate with any persons engaged in criminal activity and shall not
associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
(10) The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer;
(11) The defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
(12) The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court;
(13) As directed by the probation officer, the defendant shall notify third parties of risks that may
be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.
The special conditions ordered by the Court are as follows:
The defendant shall participate in an approved inpatient/outpatient mental health treatment program, as directed by the U.S. Probation Office. The defendant will contribute to the costs of services rendered (co-payment) in an amount determined by the U.S. Probation Officer, based on ability to pay, or availability of third party payment.
The defendant shall comply with the Omnibus Order Enjoining Plaintiff From Filing Any Pleadings In Or Additional Lawsuits Relating Thereto Without Court Permission entered by Judge Donald L. Graham on September 20,2001 in cases 99- 14027-CIV-GRAHAM, 99-14042-CIV-GRAHAM, 99-14257-C1V-GRAHAM, 99- 14314-CIV-GRAHAM, 00-14116-CIV-GRAHAM, 00-14201-CIV-GRAHAM , 00- 14202-CIV-GRAHAM, 00-14240-CIV-GRAHAM, 01-14074-CIV-GRAHAM, 01- 14078-CIV-GRAHAM, and 01-14230-CIV-GRAHAM.
The defendant shall have no personal, mail, telephone or computer contact, either directly or indirectly, with any of the litigants or participants of the previous civil cases that were the object of the Court's Omnibus Order dated. September 20, 2001.
The defendant shall not possess or use a computer that contains an internal modem and/or possess an external modem, and shall not possess or use a computer with access to any on-line computer service at any location without the prior written approval of the Court. This includes any Internet service provider, bulletin board system, or any other public or private computer network. In addition, the defendant shall not possess or use any data encryption technique or program. The defendant shall consent to the U.S. Probation Officer conducting periodic unannounced examinations of his computer to ensure compliance with this condition. This does not preclude the defendant from using a computer for e-mail purposes to contact only family members.
Upon a finding of a violation of probation or supervised release, I understand that the court may (I) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision.
These conditions have been read to me. I fully understand the conditions, and have been provided a copy of them.