second circuit appeal case 11-3300
TRANSCRIPT
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11-3300 cr
United States Court of Appeals
for the
Second Circuit
° ° ° ° ° ° ° ° ° °
UNITED STATES OF AMERICA,
Appellee
- v. –
FRITZ GERHARD BLUMENBERG,
Defendant-Appellant, pro se
° ° ° ° ° ° ° ° ° °
Appeal from the United States District Court for the
Southern District of New York [Case Nr. S1: 01-cr-571]
=========================================
BRIEF for the Defendant - Appellant
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TABLE OF CONTENTS
TABLE OF CONTENTS 2
PRELIMINARY STATEMENT 3
PRO SE STATEMENT 7
ARGUMENT 1 8
ARGUMENT 2 11
ARGUMENT 2 15
ARGUMENT 3 17
Lack of jurisdiction in a federal court over the subject matter of the litigation cannot be waived by
the parties. The court should decline to proceed with the cause. US vs Corrick. 298 U. S. 436
(1936). If the record discloses that the lower court was without jurisdiction, this Court will notice
the defect although the parties make no contention concerning it. [at 440] This Court has
jurisdiction on appeal to correct the error of a District Court in entertaining a suit over which it had
no jurisdiction. Id.
CONCLUSION 21
CERTIFICATION 28 U.S.C. § 1746 (1) 21
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Preliminary Statement
This is a pro se Appeal of two disputed sequential Orders the District Court (JGK) was timely
noticed for Appeal [see: 11-3300 Case Documents 1-2-3-4 herein, Appendices I and J are
Defendant’s submissions in Original] based upon verified claims, that were denied and are hereby
disputed for serial abuse of judicial discretion under strong appearance of impartiality, at best.
This pro se Appeal also challenges the initial JURISDICTION, inter alia, and similarly fundamental
issues arising from erroneous and unlawful official conduct while some are ultra vires acts.
Furthermore, on June 8, 2009 Appellant filed a WRIT OF AUDITA QUERELA [Appendix E],
brushed off by the District Court on hardly any non-predilective grounds fellowship of a
partisanship pattern and by wrongly and swiftly re-coloring of a post-conviction WRIT of ERROR
motion as a “prisoner application”.
The AUDITA QUERALA’s arguments are fully incorporated in this Appeal because no valid
decision was rendered and on other grounds: the District Court administratively botched my timely
NOA entry to a invalid decision(supra), but one year and many interventions later, it ordered –
nunc pro tunc - that the NOA be recorded as timely as it was. This Court regrettably decreed – sua
sponte – that the District’s timeliness ORDER and the controversy on APPEAL shall suffer from
sudden infant death in 10-4777 pr [in a PAID-FOR-JUSTICE proceeding - as my IFP was as botched
as my [pr] status]. In 10: 4777 pr the District, upon my Motion to rectify the error above, claimed
incapacitation even though “closeness“by designations as a fractional peer are not infrequent.
The “[pr]” designator violated Kaminsky vs U.S., 339 F.3d 84, 91 (2d 2003) since no MOVANT
[living in Germany and freedom] may be relabeled or mistreated as if “confined” for the underlying
proceeding.
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This designation is a highly abusive but popular scheme to run on inapplicable pro-
government “2255” rules to divert the ends of justice. These “relabeling” diversions are rampant,
impermissible and shall now be rectified pursuant to the applicable standards for WRITS OF
ERRORS by persons in liberty.
Appellant’s direct Original SUBMISSION and REPLY (Appendices I and J ) consist of two
complex basic issues at bar, a Mandatory Notice of “Satisfactory Restitution compliance before
Sentencing1 for Correction” [1) below] and a Motion for an Order to Show Cause [2) below]:
1) The restitution issue arose during plea and again before sentencing and was deliberately
tossed aside by a Court who had scienter that its “Restitution Sentencing Order” would be
materially false, rewarding a “fictitious victim (BMI)”, and unsupported by corporate facts
the Court wanted to dodge to save the government from defeat. The ORDER was also
unsupported by the Court’s own SDNY probation department and was in serial violation of
§3663 absurdly permitting the government to shun its burden of proof of loss amount
under §3663 A (e) that was disputed by the defendant as fully refunded since 1998. The
Court went into special judicial cover up sheltering the prosecution from Brady
consequences the Court knew existed, if only from 100 pages of Motion-practice by Co-
defendant Lee. Judicial abuse was complete when “loss calculations” under a mandatory
sentencing scheme causes tortuous loss of liberty. Appellant submits that funds
beneficially owned by BMI were withdrawn with my authority but incorrectly supported by
many bogus payment vouchers (invoices, proformas) that Burda Media and this CEO
approved and paid. The 1998 real settlement (Appendix C) recognized the amount
[$1,129k] Appellant owed his German employer BURDA GmbH per demission date 9-July-
1 Appendix A : Southern District Sentencing Reporters (212) Tr. #245UBLUP, Page 55, 56, ff
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96, whereby BURDA GmbH held 100% of Burda Media NY capital. These civil obligations
had been substantially refunded and materially satisfied before June 2001 [eleventh-hour
indictment]. Germany’s Mission recorded the cloture June-5-1998 for filing at the Berlin
Charlottenburg Courthouse [where German non-resident garnishments register]. The
SENTENCE calculation on REFUNDED amounts that a FBI-faked “victim2” never claimed
and certainly no longer claimed, was judicial abuse. The Court curried favor with the
executive branch and its “vendor”: The BOP stepping upon Appellant’s basic rights and
legal position, which FD Weinstein was utterly incompetent [and much too fearful] to
protect.
Appellant submits that the Court’s myriad dilatory maneuvers on Restitution finally
resulted 12-23-2011 in a pusillanimous hand endorsement that ordered “Restitution
satisfied” [DE 268]. The Court’s circumnavigation of Appellant’s reasonable claims and
affirmations since 2003 added insult by “scrawled endorsement” on plaintiff’s letterhead,
as if an eight plus years post-maturity doodle could divert accountability for serious
misconduct, dogging , diverting and deliberately procrastinating an outcome that
invalidated and vacated the grave sentencing error. In furtherance, the Court attempts to
still dodge sanctionable but unsanctioned government acts of moral turpitude -
submissions which avoided judicial orders and “in contempt” obstruction of justice by
means of continued deception, diversion and by causing low-in-the-DOJ-food-chain sub
alternates3 to file perjured statements. The government still went further by
“puppeteering” a predilection-prone “magistragic” enabler (MJ.Pittman was up for
2 Appendix K demonstrates the FBI’s deceptions over a fake victim (to fabricate locus delictis on
Manhattan Island), and FBI’s insanity over a “fugitive harboring” baloney made from whole cloth.
3 Sworn by dispensable FLU (Financial Litigation Unit) staff, US attorney Garcia awarded honors upon
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renewal4 of his term) to hammer out a bogus R&R. These issues, however, are not being
directly appealed here and now, as the appellant “received material vindication of
restitutional finality at last”, albeit with manifest injustice’s bitter taste from absurd
behavior by those sworn to speedy process and unbiased comportment.
Appellant submits, that this recorded pattern of official misconduct5 below be
ordered for professional review and for judicial [de novo] review and whether sanctions, or
maybe professional treatment are warranted by the results.
2) My May-15- 2011 Submission’s was labeled “Mandatory Court Notice and Motion for an
Order to Show Cause” indicates that REVIEW of miscarriage of justice, prosecutorial
malpractice and rigged procedures are on recorded between the bench and “row ONE”
who colluded repeatedly against this defendant-appellant, against the two co-defendants
and simultaneously against the American Public they are sworn to shelter from harm but
none of these rent-seekers care about. The US taxpayor’s entitlement to a functioning, fair
and impartial justice apparatus remains undisputed. Obviously huge tax moneys cannot
buy morals or quality at the DOJ. Indeed the government’s position against SHOWING
CAUSE (Appendix B) raises the uncomfortable spector of “tacking too close to the wind”6
This Appeal demonstrates that at least the 12th & 18th floor systems were broke, but not
4 Co-defendant VIERTEL submitted a MOTION in SUPPORT of appellant’s OBJECTIONS to MJ Pitman’s
“pitiful” conclusions without merit, eventually uncovered as a pro-government bias study. Appellant
submits Appendix D : VIERTEL’s submission, while strongly worded, amazingly detailed and correct.
5 which has its place in medical journals as such “pathological malfunction resulting in self-imposed denial
of the existence of ethical boundaries in individuals suffering” from this acute trauma
6 See Coppa, 267 F.3d 143, quoting Kyles (514 U.S. 439) intra
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only, because solid proof7 arrived from the Hon. Andrew Young, “that at least since 1986,
the prosecution on row ONE began to “run [our] federal criminal justice system”8. These
issues are addressed below for correction of the abusive denials for the MOTION for an
ORDER to Show (multiple) Cause.
Pro Se Statement
Haines vs. Kerner, 404 US 519, controls here to allow for any colorable claim of innocence by a
pro se Appellant, who is without sufficient IN JURIS finesse and without assistance by
competent counsel, thus procedural hurdles are manifestly unfair and “must be avoided”. This
appellate action represents as such, as it attacks the subject matter Mail JURISDICTION and the
VALIDITY of a claim of coerced and manifestly unjust plea, coupled with question of law and
“Padilla violation” [Padilla vs Kentucky, 130 S. Ct. 1473 (2010)] during the “guilty allocation” on
these prongs:
a) A colorable claim of innocence by the appellant,
b) A dispute of the validity and fairness of the “coerced guilty” procedure on April 5, 2002,
c) A claim without unfair prejudice to the United States of America
d) A claim that could not be construed as an unjust advantage to this accused appellant.
Manifest injustice is demonstrated below, and credibility is ascertained by the submissions
and documents this appellant furnished post-plea to the Court, in particular for the absurd “ultra-
economical prosecutorial theory from whole cloth” that Burda Media was a “non-profit” pauper -
an “arching crime theory nullified by its facts, when this genuine NY business corporation (AD
1978) became a hefty profit center since 1-1-1992 under appellant’s control until demission in
July 1996, and proudly produced $7-8 million revenues each year by satisfactory services to
almost three dozen overseas media clients. This undeniable material fact was counterfeit by the
7 The suggestion of favoritism cannot be defeated by the very demonstrable fact that it has
repeatedly occurred , to defang the discovery of and sanction for conspiracy by “justice” officials
8 Judge A. Young, MAD http://www.nytimes.com/2012/06/02/opinion/a-jury-draws-a-line-on-
sentencing.html
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prosecution who dogged 5 years of internal Burda investigations by “close ally and “referrer” M.
Pomerantz, and set out to withhold financials, bank accounts and audits they had obtain under
subpoena during 18 month until early August 2002. The FBI man was instructed to divert the
economic truth at BMI and he admitted it shamefully in confidentiality to a CI. The DOJ fabricated
proceeding out of pure hubris and greed to please powerful players uptown. District Courts do get
busy at times covering up official misconduct on row ONE for reasons of its own, unlikely unrelated
to extra-judicial liabilities, reputational concerns over professional licensing, stature and a corner
office later on: “Oh, what a tangled web we weave, when first we practice to deceive!” [Sir
Walter Scott, Scottish Novelist (1771-1832)]. Appellant relies upon this distinguished Court’s
familiarity with a certain type of unlawful behavior patterns below.
ei incumbit probatio qui dicit non qui negat
*******
Argument
I
. The first fundamental question in this criminal case is whether JURISDICTION
existed, permit an indictment from a Grand Jury to proceed into a case under adjudication from an
Article III judge on the basis of an allegation of a breach of statutory laws, or whether STRUCTURAL
ERRORS corrupted the proceedings: “On every writ of error or appeal the first and fundamental
question is that of jurisdiction, first, of this court, and then of the court from which the record
comes. This question the court is bound to ask and answer for itself, even when not otherwise
suggested and without respect to the relation of the parties to it.” [emphasis added], as adopted
in Capron v. Van Noorden, 2 Cranch, 126, decided in 1804;
Appellant submits that NO JURISDICTION for Mail Fraud existed since a “scheme” is per se
crime-free and only turns into a statutory violation once INTERSTATE MAILS and INTERSTATE
private and commercial carriers are abused by completion of a DELIVERY into another of the 50
domestic States. Foreign deliveries and acts are clearly excluded from the §1341 statute and
DELIVERY is into Offenburg, Germany is far outside the domestic reach of §1341. Neither the
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agent’s on row ONE or the Adjudicator are competent to manufacture “jurisdiction”9. That
competence lies with Congress alone, and Congress did not criminalize foreign mailings and any
attempt or like act violated the separation of powers rule. Also:
expressio unius est exclusio alterius
is fully applicable to 18 USC § 1341 , without fail and a principle rule any Court must respect.
The INDICTMENT above (S1, 3s is identical) is solemn PROOF that INTERSTATE transport
was neither employed, nor would it have been chargeable due to the plain historic facts
constituting the operations at BMI, and because no domestic interstate transportation could have
furthered a scheme at Burda in any way.
Burda Media was a foreign owned local NY producer of Media content it sold in FY
1995/96 for over $15 million exclusively to 25+ overseas clients. Justice Scalia summed it up in
his latest West-Law book: “Since the beginning of the Warren Court in the middle of the last
century there has been a "breakdown" in the principles of judicial interpretation that has eroded
public confidence in the rule of law”. See also: United States v. Ford, Dkt No. 03-1774 (2d Cir. Jan.
19, 2006): "[R]estraint must be exercised in defining the breadth of the conduct prohibited by a
9 Manufactured federal jurisdiction is even more offensive in criminal than in civil proceedings, cf. 28
U.S.C. Sec. 1359. As late Hon. Judge Freedman ruled with respect to civil actions in McSparran v.
Weist, 402 F.2d 867, 873 (3 Cir. 1968) manufactured jurisdiction "is a reflection on the federal judicial
system and brings it into disrepute."
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federal criminal statute."[Op.at 14][emphasis added]. And: “There is a canon of legislative
construction which teaches Congress that, unless a contrary intent appears, is meant to apply
only within the territorial jurisdiction of the United States”. U.S. v. Spelar, 338 U.S. 217 at
222[emphasis added].
The Supreme Court issued its conclusions when Justice Scalia’s taught the Second Circuit
in Morrison vs National Australia Bank Ltd. Et al , SCOTUS 08-1191 of June 24, 2010: “It is a
"longstanding principle of American law 'that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction of the United States.' ". EEOC vs.
Arabian American Oil Co., 499 U. S. 244, 248: “When a statute gives no clear indication of an
extraterritorial application, it has none “[emphasis added].See also Jed S. Rakoff, The Federal
Mail Fraud Statute (Part I), 18 Duq. L.Rev. 771, 775 (1980) ("The first element of federal mail
fraud …; devising a scheme to defraud ….; is not itself conduct at all (although it may be made
manifest by conduct), but is simply a plan, intention or state of mind, insufficient in itself to give
rise to any kind of criminal sanctions."). One might easily devise a scheme to defraud entirely in
one's head and not engage in any act proscribed by the statute until "plac[ing]" an item into the
mail. US vs Ramirez, Vitug 420 F.3d 134 (Second Circuit, 2005). Academics and scholars of
Rakoffs caliber agree10.
No single ITEM was mailed or consigned by (what the government called “victim” who was
without a dollar of loss) Burda Media itself, nor caused by any of the three defendants, since AIR
LINE records prove that M&M Aircargo in Munich, Germany was the shipments consignee (not
Burda Holding in Offenburg), through CARRIER LUFTHANSA’s air way bill, an official DOT CARRIER
transport document, the District Court has on record. See Appendix H.[Burda is nowhere to be
found on this exclusive bill, a really true bill at last in this proceeding]
This distinguished Court should employ a “common sense reading” of the indictment
whether, on its face, it alleges a prohibited “interstate use of the mails or carriers”, or whether
what Appellant submits, it “failed to state a crime” [for lack of a interstate commerce].
10
Limiting the unlimitless in Mail Fraud is standard L2 fare referencing lawprofs Podgor, Henning et.al.
others who teach that “international mail” was deliberately not proscribed by Congress in §1341.
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Argument
II
The second fundamental question is based upon PLEA MERIT and whether the primary
(elected) branch of government authorized the secondary and tertial (unelected) branches to
complot court cases without statutory authority and without genuine American Interests at stake,
and did not inform the public about it. They did not. They also gave no authorization to keep those
controversies running for 11 plus years on the back tax-payor’s11 precious funding when a case is
based upon unreal micro-economics12, hypothetical jurisdictional and on quasi jurisdictional
venue grounds, jurists of reason can detect. In my particular proceeding the legal quality and
validity of the preconceived “boilerplate Court verbiage” recanted at a “judicial” plea colloquia for
the record to demonstrate particular perniciousness and repulsive unlawfulness jurists of reason,
again, can detect. The District Judge was unable to extend its reach into any factual basis for a
plea he solemnly proclaimed he has a duty to assure as a basis for its “acceptance” of any plea.
Well, appellant submits, its hogwash of the size of a judicial farce in 41 pages that appellant
respectfully submits in Appendix A. [on pg7, on pg 24 Weddle admits to the botched Pimental
letter]. The Court “inquired” whether I understand some charged act thing that’s not even criminal
per se, while the “supercrucial $8,120.00 Agate Invoice” the putative “corpus delicti ad
transportum”, remained totally obscured, unmentioned. At colloquia the utter irrelevance whether
travel to “Offenburg, Germany” (wrong again) in June 1996 [Tr.pg 35] was a real nullity and
whether “the mails” were used vel non, demonstrates the coordinated malevolence at play, totally
utterly contrary to any factual basis. Conspiratorial charges were fully gutted as well.
The argument therefore centers upon the VALIDITY OF THE PLEA by an unprotected,
inefficiently and wrongly counseled alien who was coerced what by FD Weinstein called “eating a
11
Appellant was a substantial resident taxpayor and submits that he truthfully reported and fully paid
his share of federal, Social Security and state taxes for the entire duration of gainful occupation since
1972 (24+ years), including FY 1995 and 1996 sworn and true declarations, for which he was absurdly
accused on bogus hearsay grounds [IRS’s agents not even relied upon] without a shred of proof, to
have “willfully” shortchanged the IRS, which was ultimately squashed in May 2011 by his German
employer CERTIFICATION (see: Original Submission dated 5-15-2011 DE#242, ANNEX 1,2,3)
12
A self-aggrandized white shoe firm was dishonest enough to fabricate for profit and fees
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whole indictment”. The scheme was obviously familiar to Weinstein, yet above a rather “disliked”
[see US vs. Barroso,108 F.Supp 2d 338,344 (SDNY, 2000), affirmed 252 F.3d 653 (2d 2001)]
plot by the government to abuse guilty allocations to further what amounts to the “denial of due
process” [US vs. Dolah,245 F.3d 98,107, 2d 2001]. Appendix E is a prewar-letter by Lee’s
counsel on the eve of my “allocation” which enforced my reading of scribbling concocted by FD
Weinstein, repeatedly making appellant recant unfamiliar words unrelated to the charges
appellant knew about, while pointing his middle-finger at a cheat-sheet Weinstein had slapped
together, running.
Again: the allocation failed to establish a “ conspiracy with Lee or Viertel”, when appellant
referred to conspiring with office staff, far away from the first charge the government was so eager
to finagle courtside. Appellant’s unintelligence and “mis-conceptualization” of the entire
proceeding is striking read; while I grasped for help in honest belief that – uncharged - “mail-
ordering of domestic merchandise” was the crime to plead to, the District Court ruthlessly
continued to waterboard a tongeless alien defendant in total disconnect from what “factual basis”
a valid plea required.
Playing first fiddle & prompter was one AUSA Justin Weddle [“supervised” by AUSA George
Canellos] who reached notoriety for trespassing federal statutes long before he was apprehended
and disqualified by a distinguished “Aleynikov” panel of this Court in February.
But, this “government” still places reliance upon the mockery at my unintelligent plea on
page 2 of its 6-30-12 response. Assistant proctrix Cohan’s undocketed letter [to JGK) states:
“Blumenberg’s contentions should be rejected. On April 5, 2002, Blumenberg pleaded guilty to
Indictment S1 01 Cr.571 (JGK), filed in five counts.” This contention should be rejected as a false
basis for attempting to quash valid ERROR claims, and the government further pretends by
mocking the District Court, that an alien plea was sufficiently investigative and factual to have
ascertained the jurisdictional validity of the underlying charges. A travesty of obvious disconnect
from Courthouse reality by a Court officer [See: Appendix B]. The question, who the government
take for a fool, is duplicitous and rhetoric.
I hereby submit, that upon arrival in Germany 2006 I slowly recovered psychologically from
previous cognitive ailments. After review of my records and recollections, I unilaterally withdrew my
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coerced plea in 201013, also and because of “Padilla” grounds which the Supreme Court
recognized as a Sixth Amendment violation. I was demonstrably subjected such 6th Amendment
violation on April 5, 2002. The “Plea” Transcript’s content is significant to demonstrate the
Januslike measure courtroom terror can achieve by an “Art.III judge[s] [who] are presumed to
know the law” U.S. vs Kezerle, 99 F.3d 867, 870 7th (1996). I submit that it appears true that
“knowledge is not, or is not merely, justified true belief"14
From all corners of the Transcript the federal defender’s ineptness and ineffectiveness is
established crossing FD Weinstein into open collusion against the direct interest of his client, while
it establishes my bland unintelligence combined with involuntary, prescription drug induced,
misunderstanding of which part, what act and how I might have violated all of the required sine-
qua-non conduct elements or a factual mens rea element necessary to the criminality proscribed
by an act of Congress. Appellant did not breach any federal criminal statute15 some 6 years earlier
[Justice Kennedy suggested several “measures to help ensure against late, frivolous or fabricated
claims.” That weren’t employed here]
. Why & How an international airfreight carriage to Germany on June 28, 1996 became a
proscribed air-cargo method not the least violating Congress’ protections for domestic
instrumentaria and Congress’ seriatim (§1341) statutory inclusion of interstate carriage only, and
Congress’ exclusion of “foreign” carriage or delivery to this date after Congress modified the
statute to increase the penalties and Hurrican acts but it did not touch the interstate limit.
13
European Citizens are permitted on grounds that [coerced pleas] infringe upon an individual's
rights under Article 8 of the European Convention on Human Rights, incorporated also in the
UK's Human Rights Act 1998.
14
Fred I. Dretske. Knowledge & the Flow of Information. MIT Press, Cambridge, Mass., 1981.
15 Appellant paid <$3000.00 fine and received 1 year unsupervised probation for five distinct breaches
of trust he owed his long-time employer Burda GmbH in Offenburg, Germany, including the $8,120
“Agate” voucher appellant confessed to have fabricated inside his Manhattan Burda office, that
became the – false - basis of the mail fraud delivery in 2001. International Delivery was a fact, and
Germany’s Judge examined the “Agate” original exhibit in Offenburg prior to sentence to pronounce
that “this case has more holes than a Swiss Emmentaler”. The Judge ordered the records expunged by
December 1999, after probation time uneventfully completed in New Jersey, appellant’s residence.
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Thus the District Court certainly kept this violently miscounseled alien far away from the
Strickland rules and from Sixth Amendment “goodies” and rather blindfolded the alien inside
pitched darkness about what the §1341, 1343 and 371 laws actually prohibits (see Tr.) while
clouding its own very dubitable subject matter jurisdiction if not the entire lack thereof. See
“Subject matter jurisdiction” is an “absolute stricture on the Court” Leroy vs Great UC 443 U.S.
173, 180 (1973).
Further, the District Court conscientiously avoided addressing the maximum of penal
consequences appellant could suffer from an admission of guilt. This is a judicial act beyond
salvage and entirely INVALIDATES the plea, because such acts violate human rights and what
Padilla [supra] taught those in the retail segment of the judiciary laboring somehow sometimes
clandestinely on the other side of honorable, the other side of fair and of impartial, while clogging
the discharge of their constitutional obligations and their solemn oath, see 28 USC §455.
In fact, the District Court went into alien-invalid and “bogus” supervisory release periods
from incarceration (BOP’s Fort Dix staff ridiculed my timely request for CCC half-way house in
2005 calling me foolish believer in judicial proclamations) and the – equally - entirely “bogus”
probation portion of the punishment, as well as keeping dead silent on removal by deportation,
which seems to be disrobed dirty words during plea and sentencing, plus, most unlawful, was the
Court’s, the government’s and my “defender’s” staged16 silence about the loss certainty of a
“quarter-century-earned” old-age-benefits amounting to hundreds of thousands of Social Security
dollars over time, that were absolutely, positively and definitely not a simple collateral
consequence for me, the silly alien “eating a bogus indictment”. I relied upon Pimentel’s letter the
government admitted suddenly to have botched (see Appendix A Tr. Pg 7), but all the participants
decided not to disclose the “undeniable loss of substantial paid in benefits”.[Appendix E, 2008
benefit denial letter exhibit “B” by Social Security Frankfurt- “A” deleted on privacy grounds ]
16
It is unconscionable Court room misconduct that NONE OF THE PROFESSIONAL LITIGATORS NOR
THE PRESIDING JUDGE warned this 58 year old alien defendant U.S. wage earner- tax payor, who was
unlearned in law, a “permanent” resident and NH (number holder) of Social Security Records (see FBI
records), that a deportation-prone “guilty plea allocation” will result with certainty in consequentially
disabilitative LOSS OF SSA Title II retirement and/or disability benefits to an alien.
Page 15 of 22
Argument
III
The third fundamental question at bar is that of EQUAL JUSTICE, whether and how 2 aliens
(Appellant and co-defendant VIERTEL) could carry punishable guilt for identical federal violations
“allegedly done in cahoots” with the only American-birthed defendant, John Lee, whose was - S2
indicted on 6-6-2002 on more substantive Counts than Appellant and co-defendant - able to
obtain a micro-surgery extraction “nolle-prosequi” on the night before July 4th 2002, staged by the
current Deputy US attorney, Richard Zabel, acting on behalf of Lee as surgeon private causing a
clean sweep17 ex machina. This – albeit safely guarded – secret procedure set the gold standard
for effective assistance by able counsel, something two aliens could not muster or afford.
17
Terminated Counts for Defendant John Lee
Disposition
18:371.F CONSPIRACY TO DEFRAUD THE
UNITED STATES (CONSPIRACY TO COMMIT
WIRE FRAUD)
(1)
In light of the foregoing, I recommend that an
order of nolle prosequi be filed as to
defendant John Lee with respect to
Indictment 0 Cr. 571, Indictment S1 01 Cr.
571, and Indictment S2 01 Cr. 571.
18:371.F CONSPIRACY TO DEFRAUD THE
UNITED STATES
(1s)
In light of the foregoing, I recommend that an
order of nolle prosequi be filed as to
defendant John Lee with respect to
Indictment 0 Cr. 571, Indictment S1 01 Cr.
571, and Indictment S2 01 Cr. 571.
18:371.F CONSPIRACY TO DEFRAUD THE
UNITED STATES
(1ss)
In light of the foregoing, I recommend that an
order of nolle prosequi be filed as to
defendant John Lee with respect to
Indictment 0 Cr. 571, Indictment S1 01 Cr.
571, and Indictment S2 01 Cr. 571.
18:1343.F FRAUD BY WIRE, RADIO, OR
TELEVISION
(2)
In light of the foregoing, I recommend that an
order of nolle prosequi be filed as to
defendant John Lee with respect to
Indictment 0 Cr. 571, Indictment S1 01 Cr.
571, and Indictment S2 01 Cr. 571.
18:1343.F FRAUD BY WIRE, RADIO, OR
TELEVISION
(2s)
In light of the foregoing, I recommend that an
order of nolle prosequi be filed as to
defendant John Lee with respect to
Indictment 0 Cr. 571, Indictment S1 01 Cr.
571, and Indictment S2 01 Cr. 571.
18:1341.F FRAUDS AND SWINDLES (MAIL
FRAUD)
(3)
In light of the foregoing, I recommend that an
order of nolle prosequi be filed as to
defendant John Lee with respect to
Indictment 0 Cr. 571, Indictment S1 01 Cr.
571, and Indictment S2 01 Cr. 571.
Page 16 of 22
The warrior-band’s cloture by nolle prosequi was, more likely than not, caused by purest
proctor greed, staged by two über-pressure “S2” charges18 targeting John Lee, and John Lee
alone19. The timely hit raised those stakes and fears, monetizing a nolle’s value proposition to play
trump card to catch Lee’s ante. John Lee lead a wealthy life, his gratitude was a worthwhile target.
Judges seem to close their eyes and noses, when stuff starts smelling: professional bar courtesy.
Suddenly, quality arguments and weighty law Zabel & Benjamin so preciously had labored
on hit: BINGO. Lee’s June 2001 SOL Motion would do the trick, better yet, to get it mooted by
nolle20 prior to a potentially lawful ruling would keep benefits exclusive and far away from
unworthy aliens on CJA. The SOL motion would equally remain concealed; Appendix G
demonstrates appellant’s futile attempt to uncover the secret. The bald eagle got diarrhea, but
Lee was cleansed. Appellant submits that “his” S1 INDICTMENT, with identical charges as Lee’s
18:1341.F FRAUDS AND SWINDLES
(3s)
In light of the foregoing, I recommend that an
order of nolle prosequi be filed as to
defendant John Lee with respect to
Indictment 0 Cr. 571, Indictment S1 01 Cr.
571, and Indictment S2 01 Cr. 571.
18:1343.F FRAUD BY WIRE, RADIO, OR
TELEVISION
(3ss-4ss)
In light of the foregoing, I recommend that an
order of nolle prosequi be filed as to
defendant John Lee with respect to
Indictment 0 Cr. 571, Indictment S1 01 Cr.
571, and Indictment S2 01 Cr. 571.
18:1341.F FRAUDS AND SWINDLES
(5ss-6ss)
In light of the foregoing, I recommend that an
order of nolle prosequi be filed as to
defendant John Lee with respect to
Indictment 0 Cr. 571, Indictment S1 01 Cr.
571, and Indictment S2 01 Cr. 571.
Highest Offense Level (Terminated)
Felony 18 The charged international wire [only LEE was charged with 2 wires] on 6-20-1996 was the wrong
wire but all prior wires in sight, were time-barred; the mailing on 6-28-1996 was neither an interstate
mailing nor furthering a detectable scheme, because the sheet either mailed, vel non, was not part of
a scheme, but a first & last time retroactive voucher to paper an earlier undocumented transaction
over, utterly unplanned, while earlier mailings would be time barred on indictment day 6-14-2001.
19
Nota bene: Lee’s March 22 & 26, 2002 “innocence proffers” were staged as wicked “foreplay” to
add two more similar (“hot air”) charges in Lee’s S2 (3ss-4ss, 5ss-6ss) in early June. Scare mongering
20
Appellant submits that John Lee informed him in 2002, that he incurred almost $800’000 in “legal
fees” to get a full vindication on 7-3-2002, but he was bound to strict confidentiality, with regrets.
Page 17 of 22
pre-S2, was equally time-barred. Harris, Weddle and Cohen plugged Lee by nolle with scienter that
all federal charges were unreachable and thus invalid on solid grounds. They violated their
affirmative duty to the appellant to disclose the exculpatory issues.
It is reasonable, that Harris and Weddle feared the time-bar argument, rushed to
conclusions, bedazzled and re-bedazzled the grand jury and pushed S/A Connor O’Sullivan into
calumniation over the “Agate” timeline and much more that O’Sullivan knew to be exculpatory for
all the defendants, he knew, and the AUSA knew, they crooked the Grand Jury. Harris pushed him
hard, O’Sullivan is reluctant at first; the GJ transcript is proof for another travesty. Southern District
mockery, the triple-ham procedure, often practiced, never improved. O’Sullivan, a learned CPA,
quit his job; so did Harris presumably to study Talmudic law to learn what could be done ethically
sometimes in the future to address the “devoid of any sense of morals or any sense of honesty or
any sense of integrity” among some prosecutorial operatives. Harris violated.
.Argument
IV
The fourth fundamental claim on this Appeal is based upon the abusive denial by the
District Court of reasonable assistance to uncover original wrongdoing that provided a vicious
basis for a criminal case in which the Court repeatedly denied MOTIONS for Brady materials the
government wanted to keep secret to “save” its fraudulent indictment. The Court denied Motions
for bills of particulars in favor of the dubious accuser, his “government”. It certainly appears likely
that the District Court sought to protect the accuser’s official attorneys, his former colleagues,
from dire consequences over manufactured elements, withheld investigations and forensic
analysis (the Burda Media internal investigations in 1996 by Rogers & Wells and BMI’s audit FY
Page 18 of 22
1995/96 were among the relevant exculpatory documents withheld despite demands over
demands), dubious theories and far reaching obstructive endeavors. It would have been a “small
step for an impartial judge into the right direction but a big step towards genuine justice
administration” to direct the government to show CAUSE on these four issues and explain why
abusive prosecutors should go sanction-free on proven misconduct (see: Stevens). The Court’s
DENIALS crushed the following reasonable demands deserving resurrection:
1) Presenting a bogus economic victim (Burda Media Inc) and cloaking “BVG: the record speaks
for itself, BMI (Burda Media Inc) did not incur a economic loss from the unethical portions of
their modus operandi, because BMI charged a margin on all expenses regardless of
legitimacy or causation, which allowed BMI to earn substantial revenues from its clients, who
– like in every commercial production endeavor – receive a total product costing, even if
some item had a dubious genesis (Appellant submits that 5% was the maximum slippage at
all relevant times). BVG was a subcontracted “billing agent” in Germany for BMI, and
withholding the existence of BVG, the high fees BVG earned at BMI [who was costumed up by
Mary Jo White’s operatives as a NY charity non-profit in need of German Cash contributions,
when, in fact, BMI paid its own millions to German subcontractors out regular proceeds], was
a constitutional due process violation the government must be directed to explain. The
Court’s denial constitutes abuse of judicial discretion for cause.
2) Presenting a fabricated indictment by all counts: The indictment appears to draw most
language and theory from Rogers & Wells’ Warren Feldman [on staff]; with Feldman’s
corrupted language came deliberate fabrications by R&W concocted despite a “investigation”
at BMI that began July 1996 and turned into BMI’s most expensive and most worthless piece
of “vendor malware” dwarfing the appellants manipulations which caused regular revenue at
BMI. BMI suffered incontrovertible and claw-back-free damages from R&W’s hourly billing
scam of over $2,5 million dollars21, at the end of which R&W asserts willful darkness about
the simple economics of a “Profit Center” subsidiary, like BMI was since 1992. BMI was not
a NINJA type pauper, but a very profitable company, as R&W so dearly found out, a fact that
21
A big chunk of change for a “pauper”, government costumed BMI, which, inter alia, is straight out of
proof box, that this USAO was corrupt for not inquiring about the “referral” received from Rogers &
Wells whose hourly billing to BMI was about to be terminated in 2000 requiring a refreshed from the
prosecution in the format of Grand Jury subpoenas costing BMI dearly.
Page 19 of 22
renders the indictment wholesome “hogwash”, spoon-fed by Feldman to White’s agents. The
Court’s denial surpassed abuse of discretion for ulterior motives it is sworn not to entertain.
3) Brady violations for cloaking BMI’s ‘96 audit report: The 1996 BMI [local] forensic audit was
performed in New York after my resignation upon orders by acting CEO. The audit was
completed in June 1997. The audit was indubitably withheld by the government (and
obtained in 2004 from German Police files by co-defendant Viertel while subject to correction
inside Coleman’s hoosegow). The prosecution dared to color a NEW YORK audit of a NY
domestic corporation Burda Media Inc: “the German audit” [see AUSA response22 Appendix
B, pg 3) tinting it as if a New York audit done for a NY CEO of a NY corporation was
“unreachable by its agents” when, in fact, R&W had it since June 1997 and kept it away from
prying eyes who could derail a good racket. R&W covered the USAO’s receipt of “BMI’s
financials DNA” by hand delivery in August 2002, just before the trial of Viertel, and probably
as a fig leaf drop–off in case other financials were “lost” by the USAO contained in previous
paper dumps. But that delivery did not cause any substance review of the exculpatory weight,
the government simply claims, that their principal crime theory, “replenishments from
Germany” couldn’t be shaken by a certified and historic chartered result at a NY domestic
corporation for the relevant time to derail their counterfeit, malicious theory.
These balance sheet books constituted the financial snapshot DNA for 1995 and 1996 (as
well as other years). The nature of such a very detailed audit in a white-collar-case is like DNA for
a capital case, because it allows reconstruction of every dollar spent, earned and maybe lost. No
dollar loss was registered23 at BMI under my direction and after, no qualification for a “fraud
reserve” was inserted, because BMI earned revenue from high, even unsupported expenses.
Thus, millions were earned in 1995, a bit less in 1996. That is why the Court’s negation to
ORDER a SHOW of CAUSE widely surpassed its authority, in further aggravation of previously and
absurdly dishonored “DNA”-Audit’s and their intrinsic and case-most-relevant economic value
22 AUSA Cohen was not entitled to new dancing shoes to continue her pearl street waffle when
misleading the USCA2 panel on 9/21/07. The music stopped on receipt of audited balance sheets
on Aug 7 and 8 in 2002, those, Cohan & Harris kept secret to con the Court into a crime theory
long dead. Dead on arrival in Mollo’s building. Dead since 1996.
23 See USCA 2: 11-5442(cr)L Transcript pages (A-157 to A-169)
Page 20 of 22
message [by certified chartered members under GAAP and Tax German Code], in yet another
refutation. It seems that any and all HLS clones of a class are graduated as jurists, but Havard
won’t vouch that these clones sport a full set of morals or even more prosaic and basic micro-
economic grasp for simple commercial production activities like those at Burda Media New York.
[Lee’s defenders Zabel & Benjamin went on record with amazing prevoyance December
18, 2001 to admonish the prosecution over its unfulfilled obligations addressing24 [A.G.L.H.F.
LLP letter to AUSA Harris, pg 2] what they intended to withhold and later effectively withheld].
4) Wonton FBI “fugitive classification” under Color of law: is a legitimate complaint of
prosecutorial misconduct that must be aired in public and for the benefit of all citizens and
aliens alike in a country that amazingly has the highest arrest quota on earth. Here, the
internal FBI document is telltale. Case 01cr571 was never classified as “fugitive” in Court
records still alive, but AUSA Harris, Weddle, and others employed skullduggery without
hesitance. Appellant relies upon this distinguished Court’s awareness of unlawful methods by
government agents. Thus, a demand to SHOW CAUSE by MOTION is justified when “those get
caught who break laws but were sworn to uphold them”. If there is anything the public can
gain from this case, it is the scofflaw methods by agents or lawyers serving the federal
government who feel immunized from concocting constitutional violations across State lines
resulting in even more constitutional violations in foreign districts for the purpose to
unlawfully induced other agents to waive statutory procedures and due process by use of key,
yet impermissible words: “Fugitive” ( 3 times used, three defendant’s). This fictitious
classification violated US Code 18§1001 three times when “unnamed” FBI scriveners
24
Page 21 of 22
inserted “- FUGITIVE –(B) - after each name for an interstate “apprehension” wire in
furtherance of a scheme to obtain bonding money from derogatorily mislabeled “targets” of a
federal persecution (REMINDER: defendants are presumed innocents until proven guilty, and
a “FUGITIVE” label seeks to invalidate and maliciously undercut protections the constitution
provided for). When due process regulations become “just nuisance” to these enabling
zealots who ruthlessly counterfeiting wires in reliance upon “zero backfire” all of their
country’s legitimacy was removed. Lawyers like Harris, Weddle and all supervisor must be
subject to removal from practice, but they flourish because they enjoy equally dishonest
protectors in high places, and highly fearful magistrates (like MJ Vitunac) who won’t sanction
abuse when she it, and when it originates from the Southern District every law-handyman
wants to kowtow. The Court’s denial of my MOTION is repulsive in the face of due process
and calls for the strongest rejection25.
Conclusion
Therefore, appellant prays, that this honorable Panel vacates the judgment of conviction,
dismisses the indictment for lack jurisdiction and misconduct, equal justice concerns and other
structural errors cited above, and decrees all such further relief and sanctions this Court deems
reputationally appropriate and in the interest of justice.
I hereby certify and verify under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct [28 USC §1746(1)].
Executed and Respectfully Submitted on June 26, 2012
/s/ __________________________
Fritz G Blumenberg, Appellant pro se Am Hempberg 2 , D-21224 Rosengarten,
Germany Tel:*494108-534590, Fax 535, [email protected]
Plus APPENDIX
25
Those still popular and powerful United States lights “in favor of the government” must be turned
off, as were those of secret Savac policemen in Iran, their MfS counterparts in Stasi-Germany and
those of Gestapo and CIA.
Page 22 of 22
Certification: 6973 Words
I hereby certify that an electronic copy of this submission and the Appendix was emailed to
Richard Zabel,Esq., Deputy USA SDNY, and Mary-Jo White, Esq. on this day.
/s/
Fritz G Blumenberg
U.S.C.A.2 Case Manager Frank Perez Thank You for electronic filing