Dorean scammers appellate brief

[notorial dissent]

Our favorite ME scammers, Kurt Johnson and Scott Heineman, have recently posted the long awaited and much ballyhooed sure fire going to end it all "brief" for their appeal, consisting of some three thousand badly abused, tortured, and otherwise misapplied words and phrases, all of them making as little sense as any of their other filings. If anyone is feeling brave, it is posted on the Dorean blog.

Let the excuses fly, they really aren't guilty because they say they aren't, and that mean old Judge Alsup had it in for them and so on and so forth.

[fortinbras]

The brief appears here:
http://thedoreangroup.blogspot.com/

I would suppose from the3 careful adherence to the Bluebook citation style, they had help from someone with some training such as a paralegal or a legal secretary. But I doubt a real lawyer had a hand in this.

[notorial dissent]

According to the "brief" they have a court appointed attorney, and I suspect she may have edited it a bit, but it sounds like vintage Kurtian garbage to me. I won't pretend to have read it clear through, but just in scimming through it, I would say it is 90% nonsense, and the other 10% pointless editorializing. Most of it having been ruled on and tossed at the trial, so not at issue again. I really can't see much in it that even really applies to an appeal. It appears that they are trying to say that the statutes are too vague and are therefore void, but have nothing to really back it up.

I suspect most of it will get tossed on technical, as in having nothing to do with the matter at appeal, and then rest go down for being nonsense.

[wserra]

I didn't get past "Title 18 U.S.C. § 1349 in that it is a predicated attachment that garners its elemental strength from other fraud statutes as section 1341 in this case is likewise void for vagueness". Yes, I think that's supposed to be a sentence.

[Pottapaug1938]

I didn't get past the opening "Poetic Justice" paragraph. In addition to affirming the lower court's decision, the appellate court ought to revoke Kurt's poetic license.

[Judge Roy Bean]

Their motion to file that supplemental brief was denied.

The hearing was on the 10th and argument was limited to twelve minutes per side, and obviously could not have included much of what Johnson invented.

[notorial dissent]

The only thing substantiative that I can dig out of that whole long morass, is that they are trying to claim that the fraud statutes they were convicted under are “void for vagueness”, at least as near as I can tell, never minding that they seem to have survived for the last who knows how many years under a great deal of review and scrutiny, and then they seem to spend a great deal of time arguing definitions that they don’t like-that don’t agree with their interpretation of the world.

I can see why the appellate court gave them a whole 12 minutes, nothing much to argue. I am wondering how long the denial response will be and what it will say about their brief.

I do feel sorry for the clerk who had to wade through that and try and make something resembling sense out of it, of course since it was filed by their attorney, maybe they didn't have to bend over backwards trying to find order in chaos the way the do in pro se filings.

[Judge Roy Bean]

...
I do feel sorry for the clerk who had to wade through that and try and make something resembling sense out of it, of course since it was filed by their attorney, maybe they didn't have to bend over backwards trying to find order in chaos the way the do in pro se filings.

It wasn't actually filed. Their motion to allow it to be filed was denied; the appeals court will never see it let alone hear argument about anything other than what was in the original March filing which was prepared by counsel without any artful ruminations.

[notorial dissent]

Then what was filed for their appeal? Now I really am curious. Maybe their lawyer wouldn't let them file any nonsense and just filed a standard appeal. Considering that all they got was 12 minutes, there really wasn't much that could have been said or done in that amount of time I wouldn't think. Makes me wonder what they based their appeal on, or maybe it was just a more coherent version of the brief. One way or another, I don't expect the walls to come tumblin' down any time soon.

[Lambkin]

I'd like to think their attorney read the poem to the court (with feeling) sat down and folded his hands.

[bmielke]

I'd like to think their attorney read the poem to the court (with feeling) sat down and folded his hands.

"Your Honor, my clients are innocent, I think that we should read from the New York City phone book, we should call A. Aaa First ask him what he thinks of my clients, and then call ..." 12 Minutes later... "I urge you to call these great people".

That's what I want to see.

[Judge Roy Bean]

I'd like to think their attorney read the poem to the court (with feeling) sat down and folded his hands.

"Your Honor, my clients are innocent, I think that we should read from the New York City phone book, we should call A. Aaa First ask him what he thinks of my clients, and then call ..." 12 Minutes later... "I urge you to call these great people".

That's what I want to see.

Actually, that's not in there - this is broken into pieces just to make it easier to read - there is nothing left out between the quotes:

INTRODUCTION
The Government argues that the district court judge was not compelled to recuse himself, did not err in failing to terminate the selfrepresentation rights of Appellants Kurt Johnson and Dale Heineman, and did not erroneously direct the jury to find facts in favor of the prosecution.
The Government’s defense of the trial court’s conduct, however, fails
because the record demonstrates that Mr. Johnson and Mr. Heineman were
denied a fair trial. Taken individually and cumulatively, the trial court’s
conduct impermissibly tainted the proceedings and compels reversal of Mr.
Johnson and Mr. Heineman’s convictions.

I. THE TRIAL JUDGE WAS COMPELLED TO RECUSE HIMSELF AFTER REVIEWING PRIVILEGED AND CONFIDENTIAL INFORMATION WRONGFULLY
DISCLOSED TO HIM
Mr. Johnson and Mr. Heineman contend that they were denied a fair
trial because a biased judge presided over their criminal trial. In particular,
Judge Alsup erred by failing to recuse himself from Mr. Johnson and Mr.
Heineman’s criminal case after reviewing privileged and confidential
information that was impermissibly disclosed to him during their civil case.
The Government provides three reasons why the trial court’s conduct does
not constitute error. All arguments are without merit.
First, the Government argues that “the record is not clear as to whether Judge Illston reviewed Speilbaurer’s under seal declaration. That declaration was part of the civil case from which Judge Alsup’s order issued, so it is very likely that Judge Illston did have the declaration.” Government Opposition Brief at 31 (emphasis added). To the contrary, it can be inferred from the fact that Judge Illston did not mention the sealed declaration that she neither knew of nor reviewed the declaration when determining whether
Judge Alsup was compelled to recuse himself. Judge Illston issued a detailed and thorough evaluation of the recusal motion. E.R. 194. Of note, she based her findings on “defendants’ own court filings” and “defendants’ own statements.” E.R. 194. Judge Illston’s failure to mention Attorney
Speilbaurer’s declaration suggests that she was not aware of his sealed
declaration, had not reviewed it, and had not considered its impact on
whether Judge Alsup was compelled to recuse himself. Accordingly, it is
very likely that Judge Illston’s decision was issued on an incomplete record
and thus cannot receive deference that, in other circumstances, would be
due.
Second, the Government contends that the argument that Judge Alsup’s “recei[pt] [of] an affidavit from defendants’ attorney, filed under seal, containing privileged information—is of no consequence.” Government Opposition Brief at 30. “[W]hether defendants’ counsel violated the California Rules of Professional Conduct is irrelevant.” Government Opposition Brief at 30. The Government is mistaken because the civil attorney’s violation of the California Rules of Professional Conduct is the damning taint that disqualified Judge Alsup from being perceived as an impartial judge in Mr. Johnson and Mr. Heineman’s subsequent criminal
trial. It is undisputed that the former civil attorney revealed his clients’
confidential information, secrets, and activities in violation of the California
state ethics laws. It is undisputed that the former civil attorney informed
Judge Alsup that he believed his clients were engaged in a fraudulent
business operation. Judge Alsup obviously concurred with the former
attorney’s opinions, because he found that Mr. Johnson and Mr. Heineman
had filed a frivolous lawsuit and then referred the case to the U.S. Attorney
General’s office for a criminal investigation. Although those actions
arguably were within the discretion of Judge Alsup, the due process
violation arose when Judge Alsup—possessing wrongfully disclosed
information—did not recuse himself from Mr. Johnson and Mr. Heineman’s
subsequent criminal trial. Because the former attorney’s disclosures are
from an extrajudicial source that were disclosed in violation of state ethics rules, a reasonable person might reasonably question Judge Alsup’s
impartiality.
Third, the Government attempts to argue that the improper disclosure
was cured because it was made during judicial proceedings. See
Government Opposition Brief at 30. This contention is untenable. Judge
Alsup reviewed information about Mr. Johnson and Mr. Heineman that
Attorney Speilbaurer was not authorized to disclose. The fact that the
wrongful disclosure occurred in a civil proceeding does not “unring” the
proverbial bell. Pursuant to 28 U.S.C. § 455(a), a reasonable person who
had knowledge of the wrongfully submitted affidavit would question Judge
Alsup’s impartiality. Judge Alsup thus violated his duty to recuse himself.

II. JUDGE ALSUP VIOLATED FARETTA V. CALIFORNIA BY FAILING TO TERMINATE SELFREPRESENTATION
The Government disputes Mr. Johnson and Mr. Heineman’s argument
that the judge was compelled to terminate their self-representation. The
Government argues that “[d]efendants never acted out in front of a jury, they were never removed from the trial proceedings, and they never disobeyed the district court’s orders before the jury.” Accordingly, “there was no reason to terminate defendants’ self-representation and indeed, under [United States v.] Flewitt, [874 F.2d 669 (9th Cir. 1989) it would have been error to do so.” Government Opposition Brief at 57. The Government is
mistaken for the following reasons.
First, the Government’s attempt to now disclaim the problems with Mr. Johnson and Mr. Heineman’s self-representation is belied by the government’s own representations during trial. The Government twice
expressly requested that Mr. Johnson and Mr. Heineman’s right to selfrepresentation be curtailed—once in the motion to rescind printer privileges, the second in the motion seeking for the Court to appoint stand-by counsel. See Petitioner’s Opening Brief at 52–54 (summarizing the trial court’s comments and refusal to appoint stand by counsel) & E.R. 1990 (denying the motion for stand-by counsel because it is “unnecessary as a matter of law.”). It thus is disingenuous to contend that their behavior was cured by their insistence on representing themselves at trial.
Second, the bizarre conduct and clear disregard for courtroom rules
and protocol that were documented in the numerous filings were displayed
in front of the jury. Mr. Johnson and Mr. Heineman failed to present a
meaningful defense in front of the jury. Their opening and closing
statements were ineffective, they failed to present a cogent defense theory,
they failed to call and cross-examine witnesses, and they displayed a
sarcastic and defiant attitude throughout their trial. For instance, Mr. Johnson and Mr. Heineman repeatedly referred to Judge Alsup as “Mr.
Alsup,” a reference that the prosecuting attorney argued was a sign of
disrespect. See, e.g., GER 549:19; GER 1055: 20; GER 1088:9; GER
1152:5; GER 1233:4; GER 1342 (multiple references); GER 1348:12; GER
1350:13; GER 1352: 21. Defendant Heineman also referred to Magistrate
Judge Brazil as “Mr. Brazil” in front of the jury. See GER 1114:21.
Moreover, Mr. Johnson and Mr. Heineman’s bizarre behavior was noted by the jury. A prospective juror indicated concern about Mr. Johnson and Mr. Heineman’s ability to represent themselves, a concern that Judge Alsup dismissed by stating that “if it is unfair, in some manner . . . it is something that they want because they have chosen to exercise this right.” E.R. 380. The due process error arose because Judge Alsup’s belief that the self-inflicted wound was incurable was contrary to Faretta’s directive that
self-representation may not continue if it becomes “a license to abuse the
dignity of the courtroom. Neither is it a license not to comply with the
relevant rules of procedural and substantive law.” Faretta v. California, 422
U.S. 806, 834 n.6 (1975).
Third, the trial court erred by not terminating Mr. Johnson and Mr.
Heineman’s self-representation. In this regard, this record is different from
the facts in United States v. Flewitt. In Flewitt, the defendants “simply failed to prepare their defense.” Flewitt, 874 F.2d at 676. “The defendants'
actions in [Flewitt] did not rise to the level of obstructionist behavior that
threatened the dignity of the courtroom.” Id. By contrast, the government
attorney and trial court were aware of problems of Mr. Johnson and Mr.
Heineman’s self-representation. The trial court undertook efforts to curtail
their rights by rescinding their printer privileges. The trial court denied the
Government’s motion for stand-by counsel out of the mistaken belief that it
is “unnecessary as a matter of law.” E.R. 1990. The trial court thus allowed
Mr. Johnson and Mr. Heineman to represent themselves, not because their
behavior was confined to poor motion practice or because their behavior
outside the presence of the jury. Rather, the trial court failed to understand
that Faretta does not recognize the right to self-representation as an absolute
one. Rather than simply taking away Mr. Johnson and Mr. Heineman’s
ability to file pleadings, the trial court erred because it should have taken
away their authority to represent themselves.

III. THE TRIAL COURT MISINSTRUCTED THE JURY
As a preliminary matter, Mr. Johnson and Mr. Heineman objected to
the court’s jury instructions and thus preserved the issue for de novo review.
In particular, Mr. Johnson objected to the court's instruction that “under no
circumstances can the borrower simply eliminate the loan.” GER 1164–64. He went on to state, “I think if we don't put any kind of instruction in there
that if the jury should find factually that no loan transpired that they need to
consider that. . . .” GER 1163–64. A lengthy discussion ensued, in which
Mr. Johnson further stated that “there has been a factual dispute here, about
how this thing actually works. And you are saying, no, there is no factual
dispute, because I determine the facts. And that is not really what I think
your role is. I think you are here to determine the law. The jury is here to
interpret the facts[.] I believe there is a factual element before this jury
about that transaction and it’s not what the bank has a right to do.” (GER
1168-69.) The district court declined to change its instruction. (GER 1169.)
The Government contends that there was no instructional error because “neither of those instructions reduced the government’s burden of proof, and because defendants do not dispute that the jury was properly charged as to each element of each charged offense, there was no error.” Government Opposition Brief at 58. The instructions, however, did reduce the government’s burden of proof by informing the jury that lending and
banking practices could never operate in a manner consistent with the ways
claimed by the defense. That was a finding of fact that the jury was charged
with making. The trial court thus erred in misleading the jury. Because these instructions lessened the prosecution’s burden of proof, it is plain and
structural error.

CONCLUSION
For the foregoing reasons, Mr. Johnson and Mr. Heineman respectfully request that this Court reverse their convictions.

Dated: March 19, 2010 Respectfully submitted,
/s/ MAITREYA BADAMI
Badami & Leonida
Attorney for Appellant/Defendant
Kurt Johnson
/s/ KARI E. HONG
Law Offices of Kari E. Hong
Attorney for Appellant/Defendant
Dale Scott Heineman
Attorneys Appointed by the Court

It's the ninth circuit so I make no predictions.

[notorial dissent]

How very interesting. It is at least coherent and points at something other than wishing it were so.

Yes, will be very interesting to see what the court decides, and when.

[Cathulhu]

To summarize: "We are idiots, we lost, and you shouldn't have let us represent ourselves, because we're arrogant idiots." At least it's more substantive than the usual "You're wrong, we're right" mumbo-jumbo. Kinda like the Schiff "I might be delusional" attempt at defense.

[Dr. Caligari]

According to the Ninth Circuit's website, the Court of Appeals today unanimously affirmed the convictions and sentences of Johnson and Heineman.

[jcolvin2]

The opinion upholding the convictions:

http://www.ca9.uscourts.gov/datastore/o ... -10147.pdf

"The record clearly shows that the defendants are fools, but
that is not the same as being incompetent."

[Judge Roy Bean]

I wonder how much longer the sycophants will keep hanging on.

[notorial dissent]

I think that is the first time I have seen an appellate judge come right out and call someone a fool before in no uncertain terms, and then proceed to demolish the appellate brief right down to the ground. It would appear they weren't impressed either with the fantasies put forth as legal argument, or with their attorney's eloquence. Actually made interesting reading.

I'm just waiting to see what happens when Kurt tries to get them to reconsider, and that ought to be really entertaining.

[Judge Roy Bean]

Johnson, in his latest blogging has managed to conflate his conviction with the recent SCOTUS ruling in Skilling v. United States, attempting to keep what's left of the faithful hanging on to hope that he and Heineman will finally be released and vindicated.

[wserra]

The Dim Duo has moved to dismiss the indictment on the grounds that it fails to state an offense after the Ninth Circuit affirmed their conviction and sentence. I think they're a little confused about this "procedure" thing.

Don't read it unless it's 3 AM and you can't sleep.