I.
RELIEFF SOUGHT
Petitioners-victims Harold James Griffith and Jeanette M. Andrews, through counsel, and Laurack D. Bray hereby petition the Court, pursuant to 28 U.S.C. sec. 1651, F.R.A.P., Rule 21 ( c ), 28 U.S.C. sec. 528 and 28 C.F.R. sec. 45.2, and 42 U.S.C. sec. 10607, for a writ of mandamus ordering the following matters:
1. Require Thomas P. O’Brien, U.S. Attorney for the Central District of
California, to withdraw or otherwise recuse himself and his office, that is , the entire office of the U.S. Attorney , from prosecuting the federal criminal complaint and case of the aforementioned petitioner-victims (submitted to the U.S. Attorney (“USA”) on June 25, 2007).
2. Appoint or require the appointment of a private, independent or special
counsel to prosecute the Complaint and make a determination of the effect or relationship of the judicial retirements after the Complaint was submitted. That is, was there probable cause that a crime had been committed and that the retirees committed it, sufficient to have brought charges or indictments against them? And, the appointed independent prosecutor should re-evaluate the case to determine whether other prosecutions should be conducted.
3. Order the U.S. Attorney and/or the Federal Bureau of Investigation (“FBI”), through its respective responsible officials to provide the services identified and required pursuant to 42 U.S.C. sec. 10607, particularly subsections ( b) and (c ).
4. Order the U.S. Attorney to show cause why the retirements or resignation after the filing or submission of the criminal complaint were not de facto non-prosecution agreements (“NPAs”) based on established probable cause and the persuasion of charge or indictment; or, alternatively, why the aforesaid scenario should not be deemed a de facto NPA under the circumstances, in view of the victims statutory right to restitution.
5. Order a restitution remedy, if the Court finds the USA’s failure to prosecute the Defendants is an abuse of discretion, based, in part, on a denial of the victims due process rights.
II.
BRIEF STATEMENT OF THE CASE
This case and Petition evolves from a federal criminal Complaint filed by and on behalf of the three petitioner-victims herein, Harold James Griffith, Jeanette M. Andrews, and the undersigned, Laurack D. Bray. The undersigned, in this Petition and in several cases below, represented Mr. Griffith and Ms. Andrews, as counsel (of counsel in the district court and appellate counsel on appeal), and also himself. The undersigned initially received their cases for civil prosecution in federal court, at separate times, and, thereafter, associated with another counsel to prosecute their cases in the United States District Court for the Central District of California (“Central District”), because the undersigned is not a member of the Central District Bar. However, he is a member of the Ninth Circuit Court of Appeals, so he represented Griffith and Andrews himself regarding their appellate matters in the Ninth Circuit.
The federal criminal complaint is based on charged misconduct of several judges, both state and federal (during civil cases arising from the Superior Court of California, Ventura County, the Central District, and the Ninth Circuit), and a Ninth Circuit Clerk of the Court. Most of the misconduct, though not all, was directed at preventing the petitioner-victims herein from recovering monetary relief that the facts, law, and evidence demanded that they receive . Particularly at the Superior Court of California level (regarding the undersigned) and the Ninth Circuit level (regarding all victims herein), the victims charged racial bias was also an element of the misconduct. As pointed out below, Bray is African American.
The criminal complaint was filed or submitted in the U.S. Attorney’s Office in Los Angeles, California. After filing the Complaint, the victims did not hear from either the U.S. Attorney’s Office (“USAO”) or the investigative agency, the Federal Bureau of Investigation (“FBI”). After the time had expired for receiving a response pursuant to the USA’s Complaint introductory materials, and receiving no response for several months, the victims, through the undersigned counsel, wrote a petition-letter to the USA urging prosecution of the named accused (sometimes referred to as “Defendants”) and a response to the Complaint. In the interim, the victims discovered that several judges had retired after the Complaint was filed.
After receiving no response to the letter, the victims (a group of four to six people, excluding Ms. Andrews—she was not available) protested and picketed the federal courthouse in downtown Los Angeles, CA, which houses the USAO. After the victims had protested about two weeks, a representative from the USAO contacted the undersigned by telephone and stated that a response to the Complaint would be forthcoming in four to six weeks. Approximately four weeks later, the victims received a letter from the USAO stating that the office was unable to “proceed” on the matter, while making a referral to another organization and a federal statute; see copy of letter, infra. Thereafter, a smaller group of protestors (one to four people at various times) protested again for approximately another month. This Petition followed.
III.
QUESTIONS PRESENTED
1. Whether the U.S. Attorney for the Central District of California, Thomas P. O’Brien, and his entire office must withdraw, recuse, or otherwise refrain from prosecuting the criminal complaint of the herein victims (Harold J. Griffith, Jeanette M. Andrews, and Laurack D. Bray), based on a conflict of interest or other disqualification?
2. Whether a private, independent or special counsel should be appointed to prosecute the victims’ criminal complaint, not only for the conflict of interest referred to above, but also in regard to a USAO correspondence letter that may result in the office itself, and /or the USA, defending against a criminal complaint.
3. Whether the USA and/or the FBI violated their ministerial duty to the victims herein by not providing the services to the victims outlined in 42 U.S.C. sec. 10607 or other statutes.
4. Whether the Court should order the U.S. Attorney to show cause why the relative judicial retirements and resignation subsequent to the filing of the victims criminal complaint should not be deemed non-prosecution agreements subject to required restitution (to be paid to the victims)?
5. Whether the USA’s decision not to prosecute any of the accused, especially the retired or resigned individuals, is unconstitutional (and, therefore, an abuse of discretion) as a denial of the victims’ due process rights, at least?
IV.
PERTINENT FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED **
General Facts for all Issues
On June 25, 2007 , petitioner-victims Griffith, Andrews, and Bray filed or submitted a federal criminal Complaint in or with the United States Attorney’s Office in Los Angeles, CA. (NOTE : That Complaint identified several judges and a clerk, based on three separate district court cases, Bray v. Hintz, 04-4495(DT)(and the Ventura County original case—Nguyen v. Bray) ; Griffith v. SHHS, 91-4108; and Andrews v. Johnson, 03-3628 (DT), filed by the three petitioner-victims (“victims”) herein. However, for the purposes of this petition, we are only concerned with five judges and the Ninth Circuit Clerk, where some type of action was taken or maintained regarding their status after the
**Most of the facts contained herein are known to the 9th Circuit based on Ninth Circuit appellate cases.
criminal Complaint was filed and an investigation was conducted.). Generally, all of the accused were charged in the victims’ Complaint with violating obstruction of justice statutes. Those accused and identified here are (“charged” means charged in the Complainants complaint) :
1. Superior Court of California, Ventura County judge Steven Hintz : charged
with racial discrimination.
2. Superior Court, Ventura County judge Barry Klopfer: charged with false
statement and/or fraud in a document.
3. USDC, Central District of California judge Dickran Tevrizian : charged with
obstruction of justice .
4. USDC, Central District judge Terry Hatter, Jr. : charged with obstruction of
justice.
5. USDC, Northern District judge William Schwarzer : charged with
obstruction of justice and a statute directed at a denial of government benefits.
6. U.S. Court of Appeals Clerk Cathy Catterson : charged with making a false
statement or fraud in a document, among other things.
Issues #1 and #2
In May, 2003, petitioner-victim herein Jeanette M. Andrews filed a civil
Complaint against the Secretary of the Navy (“Navy”)(then Hansford Johnson), charging the Navy with disability discrimination. The Navy was defended by the U.S. Attorney, Los Angeles, through his assistant, Assistant United States Attorney (“AUSA”) Katherine M. Hikida of the L.A. office. The assigned judge was Dickran Tevrizian. During the course of litigating the case, AUSA Hikida, on behalf of the Navy, and based on her fault, caused the Navy to default (therefore, the U.S. Attorney caused the default). However, both the clerk and judge Tevrizian refused to enter a default, as required by law. So, Ms. Andrews, through the undersigned counsel, petitioned this Court for a writ of mandamus, to require the judge and/or the clerk to enter a default. The petition was granted, and the clerk was ordered to enter a default, which she, thereafter, did. This was the beginning of judge Tevrizian’s actions favoring the Navy and the U.S. Attorney’s office.
Next, the Navy moved to set aside the default, and Ms. Andrews moved for a default judgment . In the interim, Ms. Andrews’ trial counsel had to withdraw from representing Ms. Andrews (a state bar problem). The undersigned, who had acted as of counsel in the case, then moved to act as pro hac vice counsel (not being a member of the Central District Bar). Judge Tevrizian initially denied the motion based on a lack of a “local counsel”. When we re-applied, relying on a local rule allowing for waiver of local counsel, judge Tevrizian then arbitrarily denied the motion without mentioning the local rule. This left Ms. Andrews without counsel. This was the second time judge Tevrizian acted to favor the Navy and the USAO.
Mr. Andrews, proceeding pro se, waived her appearance at a scheduled hearing
on the default motions (she was uncomfortable with the idea of appearing herself.) But, the law outlined in her written motion and response to the Navy’s motion to set aside the default was clear. And that law dictated that the default could not be set aside, primarily because the Navy did not make a required showing.
Judge Tevrizian ignored the law and issued an order, without explanation, granting the Navy’s motion to set aside the default and denying Ms. Andrews’ motion for a default judgment. This was the third time, he favored the Navy and the USAO. Finally, Ms. Andrews filed both an appeal of the default and default judgment and a petition for a writ of mandamus. Based on those appeals, the district court was stripped of jurisdiction until the appellate court made a final ruling (i.e., issued a mandate), even if that ruling was a dismissal of the appeal . However, before the court of appeals made a final decision (December 6, 2005—received in the district court on May 7, 2007), judge Tevrizian granted the Navy summary judgment (on August 15, 2005). Therefore, he did so without jurisdiction. This was the fourth time judge Tevrizian favored the Navy and the U.S. Attorney’s Office. Judge Tevrizian is a federal or United States judge, an employee and part of the United States government.
In August, 2003, Harold James Griffith moved for reinstatement of his Social Security disability case. The defendant in the case was the Secretary of Health and Human Services (“SHHS”)(later substituted by Jo Anne B. Barnhart), a United States government agency, or the United States. The SHHS was defended and represented by the U.S. Attorney’s Office. Judge Terry Hatter, Jr., the judge deciding the case, is a United States judge, an employee and part of the United States. District judge Schwarzer is a United States judge, an employee and a part of the U.S. And, if any money is paid on behalf of judge Tevrizian, judge Hatter, or judge Schwarzer, it will come from the United States budget or treasury.
In March, 2008, the Office of the United States Attorney sent a written letter to the victims stating that the office was unable to assist petitioners and that, “the U.S. Attorney’s Office does not conduct criminal investigations.”
Issue #3
After submitting the federal criminal complaint in question, the victims have not received any information from either the United States Attorney or the FBI . Moreover, neither the United States Attorney nor the FBI contacted the victims in any way regarding the services that are to be provided pursuant to 42 U.S.C. sec. 10607 . It is now June, 2008.
Issue #4
The victims counsel, the undersigned, on his own accord, discovered that several judges whom the victims had complained about retired suddenly, and in one case, immediately, after the Complaint was submitted. In at least three cases, certain court personnel didn’t know why the judges retired. And, of course, the victims were not informed of the retirements, and at the same time , were not paid any restitution. Based on the victims knowledge : (1) Judge Hintz retired the following or next day after the Complaint was submitted; (2) judge Klopfer retired within a week after the Complaint was filed; (3) judge Hatter retired (to senior judge status) within a month ; (4) judge Tevrizian maintained his retirement status—he retired after a misconduct complaint was filed; (5) judge Schwarzer maintained his retirement status (senior judge) ; and (6) clerk Catterson resigned from the Clerk position in or about January, 2008. Several of the individuals have assumed other positions after their “retirements” or resignation . Judge Hintz has become a Commissioner; judge Tevrizian is serving as an alternative dispute resolution professional, “JAMS”; and clerk Catterson is now Executive of the Court for the Ninth Circuit.
None of the victims have received restitution from any of the judges or the clerk or the Ventura County or United States governments for the criminal acts or conduct committed by the judges and the clerk. None of the victims were informed of the status of the investigation regarding any of the judges.
Issue #5
The victims were not provided any information regarding restitution. They were not even identified as victims. 18 U.S.C. sec. 3771 provides victims with “The right to full and timely restitution as provided in law.”
Mr. Griffith is a 54 year old, divorced, Caucasian male, who is a former garbage collector or sanitation worker, who has raised two sons, Jessie, 19 and David, 25. Mr. Griffith suffered a permanent and disabling foot injury on-the-job in 1979. While first applying for Social Security disability benefits in 1982, he has been trying to obtain benefits for over 20 years. And, although the payments started and stopped for a few years, after he was found to be disabled (based on expert medical testimony and other evidence), he has been denied benefits since 1991 at least, while taking care of his sons with public assistance (AFDC). Because of the misconduct of the accused herein, Mr. Griffith continues to be unlawfully denied disability benefits, and is now without AFDC benefits since both sons have now reached majority age. His has applied for SSI benefits.
Ms. Andrews is a 57 year old divorced, Caucasian female, who is a former Computer Specialist for the Navy, having worked over 12 years before being laid-off (or constructively discharged as we viewed it). Ms. Andrews also suffered an on-the-job injury to her hand, and her problems with the Navy began when she returned from having surgery. Things were never the same. That is when the discrimination began, starting with a refusal to provide her with accommodations for the disability and with a failure to provide her with work. After the Navy breached a settlement agreement it made with her, Ms. Andrews sued the Navy in federal court for disability discrimination based on actions occurring during her tenure and upon discharge. After the lawsuit was filed, the Navy defaulted (and Ms. Andrews should have received a default judgment to end the matter—for even without the default, the record revealed that she would have prevailed on the merits in any event). However, based on various acts of misconduct by federal judges, she has been denied that judgment, and continues to be denied the judgment presently.
The undersigned, Bray, is a 58 year old African American, male, attorney, who has privately practiced law for over 20 years, emphasizing criminal defense, civil rights, and federal appellate law. In 2003, through the misconduct of some of the accused herein, during an unlawful detainer jury trial (the unlawful detainer action was brought by the landlord after Bray sued her for negligence), the undersigned’s home-law office and law practice was shutdown (as a result of his unlawful eviction). His law office and law practice (in terms of new cases) has been shutdown since 2003, as he has pursued relief for his case and the aforementioned cases of Griffith and Andrews, including a misconduct and the herein criminal complaint. He did not have the funds or other resources to try and open another office, and the state judge knew that when he did what he did. As a result of the misconduct of the accused herein, Bray’s law office and law practice remains closed and he has suffered and continues to suffer irreparable harm.
V.
WHY THE WRIT SHOULD ISSUE
Generally, the Writ should issue to require U.S. Attorney Thomas P. O’Brien and his entire office to recuse themselves from the case and Complaint of victims Griffith, Andrews, and Bray, filed on June 25, 2007. Further, it should issue to order the appointment of a private, independent counsel to prosecute the aforementioned victims’ Complaint. The writ should also issue to order the “responsible officials” or the U.S. Attorney and/or the FBI official to provide the information and/or services outlined in 42 U.S.C. sec. 10607 (b) and (c)(1) through (3). It should issue to order the government to show cause why the relative retirements herein should not be deemed de facto non-prosecution agreements without a payment of restitution, or otherwise, for the court to find the failure to prosecute an abuse of discretion, where the failure to prosecute violates the victims constitutional right to due process.
“A writ of mandamus is a petition to a court requesting an order to compel an
officer or employee of the United States to perform a duty owed to the petitioner.” Ferris v. I.N.S., 303 F. Supp.2d 103 (D. Conn. 2004). “The common law writ of mandamus is not limited to a particular type of person, but is characterized by its authorization to command performance of a specified official act or duty.” U.S. Ex Rel. Rahman v. Oncology Associates, P.C., 198 F.3d 502 (4th Cir. 1999). “While the writ is recognized at law, it is administered with equitable principles in the interest of justice and at the discretion of the issuing court.” Id. At 511. “The source of the mandatory duty can be a statute, a regulation, or result from judicial precedent.” Intermodal Technologies, inc. v. Mineta, 413 F. Supp.2d 834 (E.D. Mich. 2006). “While grant of the writ is discretionary, it is called for when the petitioner shows that the (officer) committed a ‘clear abuse of discretion’, (citation omitted) and that the error will cause irreparable injury if it goes uncorrected. . . .” Id. But see In Re Kenna, 453 F.3d 1136 (9th Cir. 2006)(“on reviewing a mandamus petition under the CVRA, this court must issue the writ ‘whenever we find that the district court’s order reflects an abuse of discretion or legal error’ ”).
A.
MR. O’BRIEN AND THE ENTIRE U.S. ATTORNEY OFFICE HAVE A DISABLING CONFLICT OF INTEREST WHICH REQUIRES THEM TO RECUSE THEMSELVES FROM PROSECUTING THE VICTIMS COMPLAINT.
To demonstrate the conflict quite simply, the United States is in the unique position of prosecuting itself, making “fair and impartial treatment of the defendant unlikely”. Hambarian v. Superior Court, 118 Cal. Rptr.2d 725 (Cal. 2002). For at least four of the accused, Judge Hatter , judge Tevrizian, judge Schwarzer, and clerk Catterson, the United States is in the position of prosecuting itself because all four are United States officers and all of their acts were committed in their official capacities. “ ‘Federal courts have an independent interest in ensuring that criminal trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all who observe them.’ ” (Citation omitted) U.S. v. Gordon, 334 F. Supp2d 581 (D. Del. 2004).
1. THE UNITED STATES ATTORNEY AND HIS ASSISTANTS
ARE ALTER EGOS OF THE UNITED STATES
“The prosecutor, functioning within the scope of his or her office, is not simply a lawyer advocating the government’s perspective of the case. Indeed, the prosecutor’s function is far more significant. Only officers of the Department of justice or the United States Attorney can represent the United States in the prosecution of a criminal case.” (Citation omitted) U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999). “(A) federal court cannot even assert jurisdiction over a criminal case unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant.” Id. “Therefore, the government’s sovereign authority to prosecute and conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants.” Id. At 1300. Thus, “the government functions only through its officers and agents. We thus infer in criminal cases that an Assistant United States Attorney, acting within the scope of the authority conferred upon that office, is the alter ego of the United States exercising its sovereign power of prosecution. Hence. . . , the United States and the Assistant United States Attorney cannot be separated.” Id. (Emphasis added). Therefore, the entire office of the USA must recuse itself from prosecuting the victims’ Complaint.
2. IF RESTITUTION IS PAID BY THE FEDERAL DEFENDANTS,
IT WILL BE PAID BY THE UNITED STATES. THAT SCENARIO
PROVIDES ANOTHER BASIS FOR A CONFLICT BY THE U.S.
ATTORNEY.
Again, the U.S. Attorney’s Office is in the unique position of prosecuting itself (the United States) for the purpose of extracting restitution from itself to give to the victims. “The primary purpose of the Victim and Witness Protection Act. . . is not to punish the defendant but to compensate the victim.” U.S. v. Salcedo-Lopez, 907 F.2d 97 (9th Cir. 1990). “A conflict of interest exists. . . where the plan administrator (prosecutor-United States) and the insurer (United States government) that ultimately pays the benefits (restitution) are the same entity.” (Citation omitted ) Sherry v. Hartford Life & Acc. Ins. Co. , 314 F. Supp.2d 714, 722 (N.D. Ohio 2004). “(T)here is an actual, readily apparent conflict not a mere potential for one when the (United States) is the insurer that ultimately pays the (restitution ).” Id. Put another way, “A (federal prosecutor) faces a conflict of interest where a decision to grant or deny (restitution) impacts the (United States) financial interests as he both (prosecutes himself) and pays for (restitution) received by (the victims).” Ankney v. Metropolitan Life Ins., 438 F. Supp. 2d 566 (D. Md. 2006). Or, “A conflict of interest exists when the administrator (federal prosecutor-United States). . . has the authority to make discretionary decisions, and is, at the same time, also responsible for paying out (restitution) from its own assets.” Buonincontri v. Liberty Life Assur. Co. of Boston, 424 F. Supp2d 1302 (M.D. Fla. 2006).
3. O’BRIEN HAS A PERSONAL INTEREST IN THE CASE, WHICH PROVIDES ANOTHER BASIS FOR A CONFLICT OF INTEREST
O’Brien has a personal interest in the case in terms of an employer-employee relationship with the United States government, it pays his salary. He is certain to consider the U.S. interests while extracting restitution. “It is probable that Franzen will take his employer’s interests into account when performing his financial analysis of the loss.” Hambarian, supra, at 744.
O’Brien has a further personal interest, particularly with the prosecution of judge Tevrizian, because it was an AUSA from O’Brien’s office (whom he probably knows personally) that defaulted in the case presided over by judge Tevrizian, i.e., Andrews v. the Navy. And, it was judge Tevrizian who took actions to protect the U.S. from paying a judgment (and in doing so, covering up the default of the AUSA). Indeed, judge Tevrizian went so far as to grant the Navy summary judgment without authority or jurisdiction to do so.
4. SECTION 528 AND C.F.R. 45 MAKE O’BRIEN AND HIS
OFFICE’S RECUSAL MINISTERIAL AND MANDATORY
The language of 28 U.S.C. sec. 528 makes the disqualification and/or recusal of O’Brien and his office ministerial and mandatory:
528. Disqualification of Officers and Employees of the Department of Justice
The Attorney General shall promulgate rules and regulations which require the disqualification of any officer or employee of the Department of Justice , including a United States attorney or a member of such attorney’s staff, from participation in a particular investigation or prosecution if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof. . . . (Emphasis added)
28 C.F.R. (sec.) 45 .2 states in part, “(a) Unless authorized under paragraph (b) of this section, no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:
(1) Any person or organization, substantially involved in the conduct that is the subject of the investigation or prosecution; or
(2) Any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution. . . .
In this instance, the organization is the United States and at least one person is Katherine M. Hikida, the AUSA in the office of the U.S. Attorney responsible for the default in the case of Andrews v. Johnson.
B.
A PRIVATE , INDEPENDENT SPECIAL COUNSEL MUST BE ORDERED
There are two reasons why the Court should order the appointment of private,
independent special counsel: (1) the prosecutor’s office has a conflict of interest, and (2) the victims reserve the right to submit a criminal complaint against the U.S. Attorney’s office, or the Citizens Complaint section of that office, and/or O’Brien (in his capacity as the USA) for making a false and fraudulent statement during the course of the investigation-prosecution of the case.
1. O’BRIEN AND HIS OFFICE HAS A DISABLING CONFLICT OF
INTEREST
As described above, O’Brien and his office has a disabling conflict of interest,
which requires recusal . Therefore, an independent counsel must be assigned or
appointed to prosecute the victims’ Complaint, and it appears that the appointed counsel should be private counsel, based on the governmental interest involved.
2. THE VICTIMS HEREIN RESRVE THE RIGHT TO SUBMIT A
CRIMINAL COMPLAINT AGAINST THE U.S. ATTORNEY’S
OFFICE IN LOS ANGELES, AT LEAST
Pursuant to a written communication and document issued and directed to the
victims herein, by the U.S. Attorney’s Office (Citizen’s Complaint section) in Los
Angeles , the victims reserve the right to submit a criminal complaint charging the USAO with making a false or fraudulent statement or representation in a document during the course of business. If the complaint is submitted, an independent counsel would be required to prosecute the U.S. Attorney’s Office and/or the U.S. Attorney. The document or letter was issued or presented to the victims after their federal complaint was submitted and under investigation, and is therefore separate from the Complaint. The letter in question was in response to a written letter and subsequent protest at the federal courthouse in downtown Los Angeles. A portion of the victims’ petition-letter to the USA (pages 1-3 and 12) is attached herein as Exhibit #1. The letter in question is attached as Exhibit #2. The passage we will rely on in submitting the complaint is the second paragraph beginning with “After reviewing and considering. . . .” It will be up to investigators and prosecutors to make a final determination as to the legal gravity of the statement, but, facially, it is substantial enough to submit a complaint, because it directly affects the victims’ rights to recover restitution for the criminal acts of others.
Our position is that the statement was made to persuade the victims to drop or otherwise discontinue pursuing their Complaint, based on the victims believing that nothing further could be done. And, were it not for one of the victims, the undersigned, being an experienced criminal defense attorney, the fraud would probably be complete. The average citizen would likely accept the statement and drop his or her complaint. As an example of the falsity of the statement, “The United States Attorney’s Office does not conduct criminal investigations,” see Exhibit #3, where “The FBI,IRS, and U.S. Attorney’s office have begun a joint investigation into potential income tax invasion and fraud. . . .” See also, the U.S. Attorney’s Manual at 6-4. 240 “United States Attorney’s Responsibilities”, where “The United States Attorney is normally responsible for the investigation and prosecution of criminal tax matters that the Tax Division has authorized.”
Finally, “Government employees have been indicted and convicted under (18 U.S.C.) (sec.) 1001 even as to falsifications made in the course of their official duties.” United States v. Estus, 544 F.2d 934 (1976). An independent counsel would be needed to prosecute the false statement or fraud complaint against the U.S. Attorney’s Office. Again, we reserve the right to file the Complaint pending the outcome of our petition .
C.
THE U.S. ATTORNEY HAS A MINISTERIAL DUTY TO PROVIDE THE SERVICES IDENTIFIED IN THE VICTIMS RIGHTS ACT OF 1990
The Victims Rights and Restitution Act of 1990, 42 U.S.C. sec. 10607 requires
“responsible officials” to provide various information to victims, “At the earliest opportunity after the detection of a crime at which it may be done without interfering with an investigation”. The language of the statute is mandatory, i.e., “shall”. In section 10607(b) “a responsible official shall”; in 10607(c) “a responsible official shall”. To illustrate further that the official acts are ministerial, the Attorney General Guidelines for Victims and Witness Assistance 2005 changed the mandatory language for officials from “shall’ to “must”. In the 2000 edition of the AG Guidelines, the language stated, “the responsible official of the investigative agency shall inform a victim of” (emphasis added) their right to services. The 2005 edition changed the language to “Responsible officials must advise a victim” of his or her rights, and “A victim must be informed of” his or her rights. So, it is clear that the “responsible official” duties pursuant to sec. 10607 are mandatory and ministerial. So the next question is: is the U.S. Attorney the responsible official for providing the services identified in sec. 10607? Well, he is clearly responsible for the prosecution stage of the case, “For cases in which charges have been instituted, the responsible official is the U.S. Attorney in whose district the prosecution is pending.” AG Guidelines, 2005 ed. But, it is just as clear that he is also the initial responsible official for the investigative stage, especially when the initial Complaint is submitted to his office. This is so because he is the first and earliest responsible official who is in a position to “advise a victim. . . at the earliest opportunity after detection of a crime”, (emphasis added) Id., of his or her rights. Also, because “The United States Attorney, as chief federal law enforcement officer in his district, is authorized to request the appropriate federal investigative agency to investigate alleged or suspected violations of federal law.” U.S. Attorney’s manual, 1997 ed.
Therefore, even if the U.S. Attorney refers the case to the FBI for investigation, it must inform and require the FBI (as the referred responsible official) to perform the actions or provide the services identified in the statute, or any other statute, or provide any other rights required of “responsible officials.” More fundamentally, whichever responsible official receives the criminal complaint at the “ detection of a crime” stage is responsible for advising and/or informing victims of their rights pursuant to sec. 10607.
Finally, while the victims here demand all services and rights made available to them pursuant to sec. 10607, we will accentuate here specific services or rights we demand. (1) We demand to be informed of that service in sec. 10607 ( c )(1)(B), “inform a victim of any restitution or other relief to which the victim may be entitled under this or any other law and manner in which such relief may be obrtained.” (2) We demand those services contained in sec. 10607 ( c)(3)(A), “During the investigation and prosecution of a crime, a responsible official shall provide a victim the earliest possible notice of . . . . The status of the investigation of the crime. . . .” (Emphasis added). And, the right to notice of the status of the investigation is interpreted to mean “continuing information regarding the status of the investigation, as well as other forms of assistance.” Saum v. Widnall, 912 F. Supp. 1384 (D. Colo. 1996). And, “to advise them of the progress of the investigation. . . .” U.S. v. Whitaker, 268 F.3d 185 (3rd Cir. 2001). “Mandamus relief may be available. . . where a public official has violated statutory or regulatory standards delimiting the scope or manner in which official discretion can be exercised.” AlliedSignal, Inc. v. City of Phoenix, 182 F.3d 692 (9th Cir. 1999). The victims here have received no information whatsoever from the U.S. Attorney or the FBI.
D.
BECAUSE OF THE CLOSE PROXIMITY OF THE RETIREMENTS OF CERTAIN DEFENDANTS AND THE SUBMISSION OF THE CRIMINAL COMPLAINT, THE GOVERNMENT SHOULD BE ORDERED TO SHOW CAUSE WHY THE RETIREMENTS SHOULD NOT BE TREATED AS NON-PROSECUTION AGREEMENTS SUBJECT TO THE PROVISION OF RESTITUTION
From the current U.S. Attorney’s Manual, Section 9-16.10 .
Plea Negotiations with Public Officials:
Plea bargains with defendants who are elected public officers can present issues of federalism and separation of powers when they require the public officer defendant to take action that affects his or her tenure in office.
GENERAL RULE: Resignation from office. . . and forbearance from seeking or holding future public offices, remain appropriate and desirable objectives in plea negotiations with public officials who are charged with federal offenses that focus on an abuse of the office (s) involved. (Emphasis added).
Resignation, withdrawal, or forbearance from holding offices in the Legislative or the Judicial branches of the federal government may appropriately be made the subject of plea negotiations, and offers of resignation, withdrawal or forbearance concerning such offices may be incorporated into plea agreements with incumbent Members of Congress and federal judges.
**However, resignation, withdrawal or forbearance with respect to Congressional or federal judicial office may not be imposed involuntarily against the will of the judge or Member of Congress involved because of the separation of powers doctrine. (Citation omitted).
There were four judges and a clerk that retired or resigned after the victims
submitted their criminal Complaint to the U.S. Attorney’s Office (one judge, Schwarzer, was already a senior judge when he committed the acts he’s accused of). There is at least justifiable support for the conclusion that the retirements were provoked by the Complaint, and if the evidence was sufficient to form probable cause, and the victims believe it was because much of the evidence was supplied by the victims themselves, then, but for a prosecutorial decision not to prosecute, the Defendants should have been prosecuted. Ordinary citizens certainly would have been. “Although the government retains broad discretion as to whom to prosecute, its discretion is not unfettered.” (Citation omitted) U.S. v. Gutierrez, 990 F.2d 472 (9th Cir. 1993). On the face of it, the retirements appear to be non-prosecution agreements (“NPAs”) without paying any penalty or restitution. Especially since most NPAs are “secret” proceedings; in conjunction with the fact that the victims have not been provided any information regarding the case or complaint, in violation of Federal statutes. Thus, the government should be made to show cause why the retirements and resignation (clerk Catterson) should not be deemed to be NPAs without the required payment of restitution, and therefore, an abuse of discretion, requiring an order of restitution pursuant to 18 U.S.C. sec. 3771(6).
E.
THE PROSECUTOR’S DECISION NOT TO PROSECUTE THE RETIRED JUDGES AND CLERK IS AN ABUSE OF DISCRETION, BASED ON A VIOLATION OF THE VICTIMS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.
The U.S. Attorney has refused to prosecute any of the complained of
individuals (hereinafter “accused” or “Defendants”), including the retired and resigned individuals, which means that the victims cannot recover restitution. But, if there is sufficient (or probable cause) evidence to prosecute and the USA is not prosecuting for some invidious reason, then the failure to prosecute is an abuse of discretion, for which there should be a remedy.
We offer at least two reasons why the USA has refused to prosecute: (1) the victims have exercised their right to and demanded restitution. Pursuant to the Crime Victims Rights Act, victims have “The right to full and timely restitution as provided in law .” 18 U.S.C. sec. 3771(a)( 6). The USA has indicated in several ways, its refusal to recognize and enforce the victims’ right to restitution. First, in violation of 42 U.S.C. sec. 10607, he has refused to inform the victims herein “of any restitution or other relief to which the victim may be entitled under this or any other law and manner in which such relief may be obtained.” Second, after refusing to prosecute the defendants, several have assumed other positions after “retirement’ and “resignation” without having paid any restitution. Third, the victims herein sent the USA a letter-petition demanding that the USAO prosecute the individuals and seek restitution. Fourth, the victims physically protested at the federal courthouse in Los Angeles demanding prosecution and restitution, and fifth, in the letter submitted in response to the victims’ letter and protest (or petitioning the government for redress), the USA, with an opportunity to comply with Section 10607, stated that it was unable to proceed and that the USA does not conduct criminal investigations. There was no mention of restitution or the victims right to such. A second reason, somewhat connected to the first, is animus towards the victims. That animus likely stems from the nature of the Complaint itself, i.e., against judges; the Complainants themselves, i.e., relatively disadvantaged—due in part to the criminality itself, and the victims insistence on their right to restitution, including the protest. Indeed, at one point, when I was protesting alone, when others could not travel from Ventura, government agents stole a leather jacket of mine, when my back was turned, walking in the opposite direction of my jacket (picketing). In fairness, if my assertion had to be based on direct evidence alone, I would have to state, “I believe” government agents . . . , because I did not actually see them take it. But, based on the totality of the circumstantial evidence, including their immediate presence, I am confident and comfortable saying that they stole my jacket, and it may be in the federal courthouse. My mistake was not calling 911 immediately (although I did report the thief later). But, somehow I did not want to believe that government agents, who are retained to protect the public, would steal a jacket from a citizen exercising his rights. “(E)ven the pre-CVRA case law recognized a dismissal (of an indictment) to be ‘clearly contrary to the public interest’ if the prosecutor appeared to be motivated to dismiss by animus toward the victim.” U.S. v. Heaton, 458 F. Supp.2d 1271 (D. Utah 2006). “The court cannot make a fully informed decision about whether the prosecutor is acting out of animus to a victim without having the victim views on the subject.” Id. This Court now have our views.
_______________________________
LAURACK D. BRAY, ESQ.
cc: Senators Jon Kyl and Dianne Feinstein; Rep. Linda Sanchez;
American Bar Association; NAACP Legal Defense Fund;
L.A. County Bar Association
NO. __________
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re HAROLD JAMES GRIFFITH, JEANETTE M.
ANDREWS, AND LAURACK D. BRAY
HAROLD JAMES GRIFFITH, JEANETTE M.
ANDREWS, AND LAURACK D. BRAY
Petitioners-victims,
v.
THOMAS P. O’BRIEN, United States Attorney,
Los Angeles
Respondent.
On Petition From the United States District Court for the Central District of CA
__________________________________________
PETITION FOR A WRIT OF MANDAMUS
__________________________________________
LAURACK D. BRAY
Law Office of Laurack D. Bray
P.O. Box 611432
Los Angeles, California 90061
(805) 901-2693
Counsel for Petitioners-victims
STATEMENT REGARDING RELATED CASES
There are no other related criminal cases. Since the case does involve misconduct, a related case may be In re Complaint of Judicial Misconduct, 07-89028 and other civil cases are Bray v. Hintz, 04-56274, Griffith v. SHHS, 04-55702, In re Bray and Griffith, 06-71160, In re Andrews, 04-71090, In re Andrews, 05-70961, and Andrews v. England, 05-55372.
PROOF OF SERVICE
I hereby certify that a copy of the foregoing Petition for a Writ of Mandamus was mailed, postage prepaid to: Thomas P. O’Brien, U.S. Attorney for Los Angeles, United States Courthouse, 312 North Spring Street, Los Angeles, CA, 90012; on this 25th day of June, 2008.
_____________________________
Laurack D. Bray, Esq.
RELIEFF SOUGHT
Petitioners-victims Harold James Griffith and Jeanette M. Andrews, through counsel, and Laurack D. Bray hereby petition the Court, pursuant to 28 U.S.C. sec. 1651, F.R.A.P., Rule 21 ( c ), 28 U.S.C. sec. 528 and 28 C.F.R. sec. 45.2, and 42 U.S.C. sec. 10607, for a writ of mandamus ordering the following matters:
1. Require Thomas P. O’Brien, U.S. Attorney for the Central District of
California, to withdraw or otherwise recuse himself and his office, that is , the entire office of the U.S. Attorney , from prosecuting the federal criminal complaint and case of the aforementioned petitioner-victims (submitted to the U.S. Attorney (“USA”) on June 25, 2007).
2. Appoint or require the appointment of a private, independent or special
counsel to prosecute the Complaint and make a determination of the effect or relationship of the judicial retirements after the Complaint was submitted. That is, was there probable cause that a crime had been committed and that the retirees committed it, sufficient to have brought charges or indictments against them? And, the appointed independent prosecutor should re-evaluate the case to determine whether other prosecutions should be conducted.
3. Order the U.S. Attorney and/or the Federal Bureau of Investigation (“FBI”), through its respective responsible officials to provide the services identified and required pursuant to 42 U.S.C. sec. 10607, particularly subsections ( b) and (c ).
4. Order the U.S. Attorney to show cause why the retirements or resignation after the filing or submission of the criminal complaint were not de facto non-prosecution agreements (“NPAs”) based on established probable cause and the persuasion of charge or indictment; or, alternatively, why the aforesaid scenario should not be deemed a de facto NPA under the circumstances, in view of the victims statutory right to restitution.
5. Order a restitution remedy, if the Court finds the USA’s failure to prosecute the Defendants is an abuse of discretion, based, in part, on a denial of the victims due process rights.
II.
BRIEF STATEMENT OF THE CASE
This case and Petition evolves from a federal criminal Complaint filed by and on behalf of the three petitioner-victims herein, Harold James Griffith, Jeanette M. Andrews, and the undersigned, Laurack D. Bray. The undersigned, in this Petition and in several cases below, represented Mr. Griffith and Ms. Andrews, as counsel (of counsel in the district court and appellate counsel on appeal), and also himself. The undersigned initially received their cases for civil prosecution in federal court, at separate times, and, thereafter, associated with another counsel to prosecute their cases in the United States District Court for the Central District of California (“Central District”), because the undersigned is not a member of the Central District Bar. However, he is a member of the Ninth Circuit Court of Appeals, so he represented Griffith and Andrews himself regarding their appellate matters in the Ninth Circuit.
The federal criminal complaint is based on charged misconduct of several judges, both state and federal (during civil cases arising from the Superior Court of California, Ventura County, the Central District, and the Ninth Circuit), and a Ninth Circuit Clerk of the Court. Most of the misconduct, though not all, was directed at preventing the petitioner-victims herein from recovering monetary relief that the facts, law, and evidence demanded that they receive . Particularly at the Superior Court of California level (regarding the undersigned) and the Ninth Circuit level (regarding all victims herein), the victims charged racial bias was also an element of the misconduct. As pointed out below, Bray is African American.
The criminal complaint was filed or submitted in the U.S. Attorney’s Office in Los Angeles, California. After filing the Complaint, the victims did not hear from either the U.S. Attorney’s Office (“USAO”) or the investigative agency, the Federal Bureau of Investigation (“FBI”). After the time had expired for receiving a response pursuant to the USA’s Complaint introductory materials, and receiving no response for several months, the victims, through the undersigned counsel, wrote a petition-letter to the USA urging prosecution of the named accused (sometimes referred to as “Defendants”) and a response to the Complaint. In the interim, the victims discovered that several judges had retired after the Complaint was filed.
After receiving no response to the letter, the victims (a group of four to six people, excluding Ms. Andrews—she was not available) protested and picketed the federal courthouse in downtown Los Angeles, CA, which houses the USAO. After the victims had protested about two weeks, a representative from the USAO contacted the undersigned by telephone and stated that a response to the Complaint would be forthcoming in four to six weeks. Approximately four weeks later, the victims received a letter from the USAO stating that the office was unable to “proceed” on the matter, while making a referral to another organization and a federal statute; see copy of letter, infra. Thereafter, a smaller group of protestors (one to four people at various times) protested again for approximately another month. This Petition followed.
III.
QUESTIONS PRESENTED
1. Whether the U.S. Attorney for the Central District of California, Thomas P. O’Brien, and his entire office must withdraw, recuse, or otherwise refrain from prosecuting the criminal complaint of the herein victims (Harold J. Griffith, Jeanette M. Andrews, and Laurack D. Bray), based on a conflict of interest or other disqualification?
2. Whether a private, independent or special counsel should be appointed to prosecute the victims’ criminal complaint, not only for the conflict of interest referred to above, but also in regard to a USAO correspondence letter that may result in the office itself, and /or the USA, defending against a criminal complaint.
3. Whether the USA and/or the FBI violated their ministerial duty to the victims herein by not providing the services to the victims outlined in 42 U.S.C. sec. 10607 or other statutes.
4. Whether the Court should order the U.S. Attorney to show cause why the relative judicial retirements and resignation subsequent to the filing of the victims criminal complaint should not be deemed non-prosecution agreements subject to required restitution (to be paid to the victims)?
5. Whether the USA’s decision not to prosecute any of the accused, especially the retired or resigned individuals, is unconstitutional (and, therefore, an abuse of discretion) as a denial of the victims’ due process rights, at least?
IV.
PERTINENT FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED **
General Facts for all Issues
On June 25, 2007 , petitioner-victims Griffith, Andrews, and Bray filed or submitted a federal criminal Complaint in or with the United States Attorney’s Office in Los Angeles, CA. (NOTE : That Complaint identified several judges and a clerk, based on three separate district court cases, Bray v. Hintz, 04-4495(DT)(and the Ventura County original case—Nguyen v. Bray) ; Griffith v. SHHS, 91-4108; and Andrews v. Johnson, 03-3628 (DT), filed by the three petitioner-victims (“victims”) herein. However, for the purposes of this petition, we are only concerned with five judges and the Ninth Circuit Clerk, where some type of action was taken or maintained regarding their status after the
**Most of the facts contained herein are known to the 9th Circuit based on Ninth Circuit appellate cases.
criminal Complaint was filed and an investigation was conducted.). Generally, all of the accused were charged in the victims’ Complaint with violating obstruction of justice statutes. Those accused and identified here are (“charged” means charged in the Complainants complaint) :
1. Superior Court of California, Ventura County judge Steven Hintz : charged
with racial discrimination.
2. Superior Court, Ventura County judge Barry Klopfer: charged with false
statement and/or fraud in a document.
3. USDC, Central District of California judge Dickran Tevrizian : charged with
obstruction of justice .
4. USDC, Central District judge Terry Hatter, Jr. : charged with obstruction of
justice.
5. USDC, Northern District judge William Schwarzer : charged with
obstruction of justice and a statute directed at a denial of government benefits.
6. U.S. Court of Appeals Clerk Cathy Catterson : charged with making a false
statement or fraud in a document, among other things.
Issues #1 and #2
In May, 2003, petitioner-victim herein Jeanette M. Andrews filed a civil
Complaint against the Secretary of the Navy (“Navy”)(then Hansford Johnson), charging the Navy with disability discrimination. The Navy was defended by the U.S. Attorney, Los Angeles, through his assistant, Assistant United States Attorney (“AUSA”) Katherine M. Hikida of the L.A. office. The assigned judge was Dickran Tevrizian. During the course of litigating the case, AUSA Hikida, on behalf of the Navy, and based on her fault, caused the Navy to default (therefore, the U.S. Attorney caused the default). However, both the clerk and judge Tevrizian refused to enter a default, as required by law. So, Ms. Andrews, through the undersigned counsel, petitioned this Court for a writ of mandamus, to require the judge and/or the clerk to enter a default. The petition was granted, and the clerk was ordered to enter a default, which she, thereafter, did. This was the beginning of judge Tevrizian’s actions favoring the Navy and the U.S. Attorney’s office.
Next, the Navy moved to set aside the default, and Ms. Andrews moved for a default judgment . In the interim, Ms. Andrews’ trial counsel had to withdraw from representing Ms. Andrews (a state bar problem). The undersigned, who had acted as of counsel in the case, then moved to act as pro hac vice counsel (not being a member of the Central District Bar). Judge Tevrizian initially denied the motion based on a lack of a “local counsel”. When we re-applied, relying on a local rule allowing for waiver of local counsel, judge Tevrizian then arbitrarily denied the motion without mentioning the local rule. This left Ms. Andrews without counsel. This was the second time judge Tevrizian acted to favor the Navy and the USAO.
Mr. Andrews, proceeding pro se, waived her appearance at a scheduled hearing
on the default motions (she was uncomfortable with the idea of appearing herself.) But, the law outlined in her written motion and response to the Navy’s motion to set aside the default was clear. And that law dictated that the default could not be set aside, primarily because the Navy did not make a required showing.
Judge Tevrizian ignored the law and issued an order, without explanation, granting the Navy’s motion to set aside the default and denying Ms. Andrews’ motion for a default judgment. This was the third time, he favored the Navy and the USAO. Finally, Ms. Andrews filed both an appeal of the default and default judgment and a petition for a writ of mandamus. Based on those appeals, the district court was stripped of jurisdiction until the appellate court made a final ruling (i.e., issued a mandate), even if that ruling was a dismissal of the appeal . However, before the court of appeals made a final decision (December 6, 2005—received in the district court on May 7, 2007), judge Tevrizian granted the Navy summary judgment (on August 15, 2005). Therefore, he did so without jurisdiction. This was the fourth time judge Tevrizian favored the Navy and the U.S. Attorney’s Office. Judge Tevrizian is a federal or United States judge, an employee and part of the United States government.
In August, 2003, Harold James Griffith moved for reinstatement of his Social Security disability case. The defendant in the case was the Secretary of Health and Human Services (“SHHS”)(later substituted by Jo Anne B. Barnhart), a United States government agency, or the United States. The SHHS was defended and represented by the U.S. Attorney’s Office. Judge Terry Hatter, Jr., the judge deciding the case, is a United States judge, an employee and part of the United States. District judge Schwarzer is a United States judge, an employee and a part of the U.S. And, if any money is paid on behalf of judge Tevrizian, judge Hatter, or judge Schwarzer, it will come from the United States budget or treasury.
In March, 2008, the Office of the United States Attorney sent a written letter to the victims stating that the office was unable to assist petitioners and that, “the U.S. Attorney’s Office does not conduct criminal investigations.”
Issue #3
After submitting the federal criminal complaint in question, the victims have not received any information from either the United States Attorney or the FBI . Moreover, neither the United States Attorney nor the FBI contacted the victims in any way regarding the services that are to be provided pursuant to 42 U.S.C. sec. 10607 . It is now June, 2008.
Issue #4
The victims counsel, the undersigned, on his own accord, discovered that several judges whom the victims had complained about retired suddenly, and in one case, immediately, after the Complaint was submitted. In at least three cases, certain court personnel didn’t know why the judges retired. And, of course, the victims were not informed of the retirements, and at the same time , were not paid any restitution. Based on the victims knowledge : (1) Judge Hintz retired the following or next day after the Complaint was submitted; (2) judge Klopfer retired within a week after the Complaint was filed; (3) judge Hatter retired (to senior judge status) within a month ; (4) judge Tevrizian maintained his retirement status—he retired after a misconduct complaint was filed; (5) judge Schwarzer maintained his retirement status (senior judge) ; and (6) clerk Catterson resigned from the Clerk position in or about January, 2008. Several of the individuals have assumed other positions after their “retirements” or resignation . Judge Hintz has become a Commissioner; judge Tevrizian is serving as an alternative dispute resolution professional, “JAMS”; and clerk Catterson is now Executive of the Court for the Ninth Circuit.
None of the victims have received restitution from any of the judges or the clerk or the Ventura County or United States governments for the criminal acts or conduct committed by the judges and the clerk. None of the victims were informed of the status of the investigation regarding any of the judges.
Issue #5
The victims were not provided any information regarding restitution. They were not even identified as victims. 18 U.S.C. sec. 3771 provides victims with “The right to full and timely restitution as provided in law.”
Mr. Griffith is a 54 year old, divorced, Caucasian male, who is a former garbage collector or sanitation worker, who has raised two sons, Jessie, 19 and David, 25. Mr. Griffith suffered a permanent and disabling foot injury on-the-job in 1979. While first applying for Social Security disability benefits in 1982, he has been trying to obtain benefits for over 20 years. And, although the payments started and stopped for a few years, after he was found to be disabled (based on expert medical testimony and other evidence), he has been denied benefits since 1991 at least, while taking care of his sons with public assistance (AFDC). Because of the misconduct of the accused herein, Mr. Griffith continues to be unlawfully denied disability benefits, and is now without AFDC benefits since both sons have now reached majority age. His has applied for SSI benefits.
Ms. Andrews is a 57 year old divorced, Caucasian female, who is a former Computer Specialist for the Navy, having worked over 12 years before being laid-off (or constructively discharged as we viewed it). Ms. Andrews also suffered an on-the-job injury to her hand, and her problems with the Navy began when she returned from having surgery. Things were never the same. That is when the discrimination began, starting with a refusal to provide her with accommodations for the disability and with a failure to provide her with work. After the Navy breached a settlement agreement it made with her, Ms. Andrews sued the Navy in federal court for disability discrimination based on actions occurring during her tenure and upon discharge. After the lawsuit was filed, the Navy defaulted (and Ms. Andrews should have received a default judgment to end the matter—for even without the default, the record revealed that she would have prevailed on the merits in any event). However, based on various acts of misconduct by federal judges, she has been denied that judgment, and continues to be denied the judgment presently.
The undersigned, Bray, is a 58 year old African American, male, attorney, who has privately practiced law for over 20 years, emphasizing criminal defense, civil rights, and federal appellate law. In 2003, through the misconduct of some of the accused herein, during an unlawful detainer jury trial (the unlawful detainer action was brought by the landlord after Bray sued her for negligence), the undersigned’s home-law office and law practice was shutdown (as a result of his unlawful eviction). His law office and law practice (in terms of new cases) has been shutdown since 2003, as he has pursued relief for his case and the aforementioned cases of Griffith and Andrews, including a misconduct and the herein criminal complaint. He did not have the funds or other resources to try and open another office, and the state judge knew that when he did what he did. As a result of the misconduct of the accused herein, Bray’s law office and law practice remains closed and he has suffered and continues to suffer irreparable harm.
V.
WHY THE WRIT SHOULD ISSUE
Generally, the Writ should issue to require U.S. Attorney Thomas P. O’Brien and his entire office to recuse themselves from the case and Complaint of victims Griffith, Andrews, and Bray, filed on June 25, 2007. Further, it should issue to order the appointment of a private, independent counsel to prosecute the aforementioned victims’ Complaint. The writ should also issue to order the “responsible officials” or the U.S. Attorney and/or the FBI official to provide the information and/or services outlined in 42 U.S.C. sec. 10607 (b) and (c)(1) through (3). It should issue to order the government to show cause why the relative retirements herein should not be deemed de facto non-prosecution agreements without a payment of restitution, or otherwise, for the court to find the failure to prosecute an abuse of discretion, where the failure to prosecute violates the victims constitutional right to due process.
“A writ of mandamus is a petition to a court requesting an order to compel an
officer or employee of the United States to perform a duty owed to the petitioner.” Ferris v. I.N.S., 303 F. Supp.2d 103 (D. Conn. 2004). “The common law writ of mandamus is not limited to a particular type of person, but is characterized by its authorization to command performance of a specified official act or duty.” U.S. Ex Rel. Rahman v. Oncology Associates, P.C., 198 F.3d 502 (4th Cir. 1999). “While the writ is recognized at law, it is administered with equitable principles in the interest of justice and at the discretion of the issuing court.” Id. At 511. “The source of the mandatory duty can be a statute, a regulation, or result from judicial precedent.” Intermodal Technologies, inc. v. Mineta, 413 F. Supp.2d 834 (E.D. Mich. 2006). “While grant of the writ is discretionary, it is called for when the petitioner shows that the (officer) committed a ‘clear abuse of discretion’, (citation omitted) and that the error will cause irreparable injury if it goes uncorrected. . . .” Id. But see In Re Kenna, 453 F.3d 1136 (9th Cir. 2006)(“on reviewing a mandamus petition under the CVRA, this court must issue the writ ‘whenever we find that the district court’s order reflects an abuse of discretion or legal error’ ”).
A.
MR. O’BRIEN AND THE ENTIRE U.S. ATTORNEY OFFICE HAVE A DISABLING CONFLICT OF INTEREST WHICH REQUIRES THEM TO RECUSE THEMSELVES FROM PROSECUTING THE VICTIMS COMPLAINT.
To demonstrate the conflict quite simply, the United States is in the unique position of prosecuting itself, making “fair and impartial treatment of the defendant unlikely”. Hambarian v. Superior Court, 118 Cal. Rptr.2d 725 (Cal. 2002). For at least four of the accused, Judge Hatter , judge Tevrizian, judge Schwarzer, and clerk Catterson, the United States is in the position of prosecuting itself because all four are United States officers and all of their acts were committed in their official capacities. “ ‘Federal courts have an independent interest in ensuring that criminal trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all who observe them.’ ” (Citation omitted) U.S. v. Gordon, 334 F. Supp2d 581 (D. Del. 2004).
1. THE UNITED STATES ATTORNEY AND HIS ASSISTANTS
ARE ALTER EGOS OF THE UNITED STATES
“The prosecutor, functioning within the scope of his or her office, is not simply a lawyer advocating the government’s perspective of the case. Indeed, the prosecutor’s function is far more significant. Only officers of the Department of justice or the United States Attorney can represent the United States in the prosecution of a criminal case.” (Citation omitted) U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999). “(A) federal court cannot even assert jurisdiction over a criminal case unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant.” Id. “Therefore, the government’s sovereign authority to prosecute and conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants.” Id. At 1300. Thus, “the government functions only through its officers and agents. We thus infer in criminal cases that an Assistant United States Attorney, acting within the scope of the authority conferred upon that office, is the alter ego of the United States exercising its sovereign power of prosecution. Hence. . . , the United States and the Assistant United States Attorney cannot be separated.” Id. (Emphasis added). Therefore, the entire office of the USA must recuse itself from prosecuting the victims’ Complaint.
2. IF RESTITUTION IS PAID BY THE FEDERAL DEFENDANTS,
IT WILL BE PAID BY THE UNITED STATES. THAT SCENARIO
PROVIDES ANOTHER BASIS FOR A CONFLICT BY THE U.S.
ATTORNEY.
Again, the U.S. Attorney’s Office is in the unique position of prosecuting itself (the United States) for the purpose of extracting restitution from itself to give to the victims. “The primary purpose of the Victim and Witness Protection Act. . . is not to punish the defendant but to compensate the victim.” U.S. v. Salcedo-Lopez, 907 F.2d 97 (9th Cir. 1990). “A conflict of interest exists. . . where the plan administrator (prosecutor-United States) and the insurer (United States government) that ultimately pays the benefits (restitution) are the same entity.” (Citation omitted ) Sherry v. Hartford Life & Acc. Ins. Co. , 314 F. Supp.2d 714, 722 (N.D. Ohio 2004). “(T)here is an actual, readily apparent conflict not a mere potential for one when the (United States) is the insurer that ultimately pays the (restitution ).” Id. Put another way, “A (federal prosecutor) faces a conflict of interest where a decision to grant or deny (restitution) impacts the (United States) financial interests as he both (prosecutes himself) and pays for (restitution) received by (the victims).” Ankney v. Metropolitan Life Ins., 438 F. Supp. 2d 566 (D. Md. 2006). Or, “A conflict of interest exists when the administrator (federal prosecutor-United States). . . has the authority to make discretionary decisions, and is, at the same time, also responsible for paying out (restitution) from its own assets.” Buonincontri v. Liberty Life Assur. Co. of Boston, 424 F. Supp2d 1302 (M.D. Fla. 2006).
3. O’BRIEN HAS A PERSONAL INTEREST IN THE CASE, WHICH PROVIDES ANOTHER BASIS FOR A CONFLICT OF INTEREST
O’Brien has a personal interest in the case in terms of an employer-employee relationship with the United States government, it pays his salary. He is certain to consider the U.S. interests while extracting restitution. “It is probable that Franzen will take his employer’s interests into account when performing his financial analysis of the loss.” Hambarian, supra, at 744.
O’Brien has a further personal interest, particularly with the prosecution of judge Tevrizian, because it was an AUSA from O’Brien’s office (whom he probably knows personally) that defaulted in the case presided over by judge Tevrizian, i.e., Andrews v. the Navy. And, it was judge Tevrizian who took actions to protect the U.S. from paying a judgment (and in doing so, covering up the default of the AUSA). Indeed, judge Tevrizian went so far as to grant the Navy summary judgment without authority or jurisdiction to do so.
4. SECTION 528 AND C.F.R. 45 MAKE O’BRIEN AND HIS
OFFICE’S RECUSAL MINISTERIAL AND MANDATORY
The language of 28 U.S.C. sec. 528 makes the disqualification and/or recusal of O’Brien and his office ministerial and mandatory:
528. Disqualification of Officers and Employees of the Department of Justice
The Attorney General shall promulgate rules and regulations which require the disqualification of any officer or employee of the Department of Justice , including a United States attorney or a member of such attorney’s staff, from participation in a particular investigation or prosecution if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof. . . . (Emphasis added)
28 C.F.R. (sec.) 45 .2 states in part, “(a) Unless authorized under paragraph (b) of this section, no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:
(1) Any person or organization, substantially involved in the conduct that is the subject of the investigation or prosecution; or
(2) Any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution. . . .
In this instance, the organization is the United States and at least one person is Katherine M. Hikida, the AUSA in the office of the U.S. Attorney responsible for the default in the case of Andrews v. Johnson.
B.
A PRIVATE , INDEPENDENT SPECIAL COUNSEL MUST BE ORDERED
There are two reasons why the Court should order the appointment of private,
independent special counsel: (1) the prosecutor’s office has a conflict of interest, and (2) the victims reserve the right to submit a criminal complaint against the U.S. Attorney’s office, or the Citizens Complaint section of that office, and/or O’Brien (in his capacity as the USA) for making a false and fraudulent statement during the course of the investigation-prosecution of the case.
1. O’BRIEN AND HIS OFFICE HAS A DISABLING CONFLICT OF
INTEREST
As described above, O’Brien and his office has a disabling conflict of interest,
which requires recusal . Therefore, an independent counsel must be assigned or
appointed to prosecute the victims’ Complaint, and it appears that the appointed counsel should be private counsel, based on the governmental interest involved.
2. THE VICTIMS HEREIN RESRVE THE RIGHT TO SUBMIT A
CRIMINAL COMPLAINT AGAINST THE U.S. ATTORNEY’S
OFFICE IN LOS ANGELES, AT LEAST
Pursuant to a written communication and document issued and directed to the
victims herein, by the U.S. Attorney’s Office (Citizen’s Complaint section) in Los
Angeles , the victims reserve the right to submit a criminal complaint charging the USAO with making a false or fraudulent statement or representation in a document during the course of business. If the complaint is submitted, an independent counsel would be required to prosecute the U.S. Attorney’s Office and/or the U.S. Attorney. The document or letter was issued or presented to the victims after their federal complaint was submitted and under investigation, and is therefore separate from the Complaint. The letter in question was in response to a written letter and subsequent protest at the federal courthouse in downtown Los Angeles. A portion of the victims’ petition-letter to the USA (pages 1-3 and 12) is attached herein as Exhibit #1. The letter in question is attached as Exhibit #2. The passage we will rely on in submitting the complaint is the second paragraph beginning with “After reviewing and considering. . . .” It will be up to investigators and prosecutors to make a final determination as to the legal gravity of the statement, but, facially, it is substantial enough to submit a complaint, because it directly affects the victims’ rights to recover restitution for the criminal acts of others.
Our position is that the statement was made to persuade the victims to drop or otherwise discontinue pursuing their Complaint, based on the victims believing that nothing further could be done. And, were it not for one of the victims, the undersigned, being an experienced criminal defense attorney, the fraud would probably be complete. The average citizen would likely accept the statement and drop his or her complaint. As an example of the falsity of the statement, “The United States Attorney’s Office does not conduct criminal investigations,” see Exhibit #3, where “The FBI,IRS, and U.S. Attorney’s office have begun a joint investigation into potential income tax invasion and fraud. . . .” See also, the U.S. Attorney’s Manual at 6-4. 240 “United States Attorney’s Responsibilities”, where “The United States Attorney is normally responsible for the investigation and prosecution of criminal tax matters that the Tax Division has authorized.”
Finally, “Government employees have been indicted and convicted under (18 U.S.C.) (sec.) 1001 even as to falsifications made in the course of their official duties.” United States v. Estus, 544 F.2d 934 (1976). An independent counsel would be needed to prosecute the false statement or fraud complaint against the U.S. Attorney’s Office. Again, we reserve the right to file the Complaint pending the outcome of our petition .
C.
THE U.S. ATTORNEY HAS A MINISTERIAL DUTY TO PROVIDE THE SERVICES IDENTIFIED IN THE VICTIMS RIGHTS ACT OF 1990
The Victims Rights and Restitution Act of 1990, 42 U.S.C. sec. 10607 requires
“responsible officials” to provide various information to victims, “At the earliest opportunity after the detection of a crime at which it may be done without interfering with an investigation”. The language of the statute is mandatory, i.e., “shall”. In section 10607(b) “a responsible official shall”; in 10607(c) “a responsible official shall”. To illustrate further that the official acts are ministerial, the Attorney General Guidelines for Victims and Witness Assistance 2005 changed the mandatory language for officials from “shall’ to “must”. In the 2000 edition of the AG Guidelines, the language stated, “the responsible official of the investigative agency shall inform a victim of” (emphasis added) their right to services. The 2005 edition changed the language to “Responsible officials must advise a victim” of his or her rights, and “A victim must be informed of” his or her rights. So, it is clear that the “responsible official” duties pursuant to sec. 10607 are mandatory and ministerial. So the next question is: is the U.S. Attorney the responsible official for providing the services identified in sec. 10607? Well, he is clearly responsible for the prosecution stage of the case, “For cases in which charges have been instituted, the responsible official is the U.S. Attorney in whose district the prosecution is pending.” AG Guidelines, 2005 ed. But, it is just as clear that he is also the initial responsible official for the investigative stage, especially when the initial Complaint is submitted to his office. This is so because he is the first and earliest responsible official who is in a position to “advise a victim. . . at the earliest opportunity after detection of a crime”, (emphasis added) Id., of his or her rights. Also, because “The United States Attorney, as chief federal law enforcement officer in his district, is authorized to request the appropriate federal investigative agency to investigate alleged or suspected violations of federal law.” U.S. Attorney’s manual, 1997 ed.
Therefore, even if the U.S. Attorney refers the case to the FBI for investigation, it must inform and require the FBI (as the referred responsible official) to perform the actions or provide the services identified in the statute, or any other statute, or provide any other rights required of “responsible officials.” More fundamentally, whichever responsible official receives the criminal complaint at the “ detection of a crime” stage is responsible for advising and/or informing victims of their rights pursuant to sec. 10607.
Finally, while the victims here demand all services and rights made available to them pursuant to sec. 10607, we will accentuate here specific services or rights we demand. (1) We demand to be informed of that service in sec. 10607 ( c )(1)(B), “inform a victim of any restitution or other relief to which the victim may be entitled under this or any other law and manner in which such relief may be obrtained.” (2) We demand those services contained in sec. 10607 ( c)(3)(A), “During the investigation and prosecution of a crime, a responsible official shall provide a victim the earliest possible notice of . . . . The status of the investigation of the crime. . . .” (Emphasis added). And, the right to notice of the status of the investigation is interpreted to mean “continuing information regarding the status of the investigation, as well as other forms of assistance.” Saum v. Widnall, 912 F. Supp. 1384 (D. Colo. 1996). And, “to advise them of the progress of the investigation. . . .” U.S. v. Whitaker, 268 F.3d 185 (3rd Cir. 2001). “Mandamus relief may be available. . . where a public official has violated statutory or regulatory standards delimiting the scope or manner in which official discretion can be exercised.” AlliedSignal, Inc. v. City of Phoenix, 182 F.3d 692 (9th Cir. 1999). The victims here have received no information whatsoever from the U.S. Attorney or the FBI.
D.
BECAUSE OF THE CLOSE PROXIMITY OF THE RETIREMENTS OF CERTAIN DEFENDANTS AND THE SUBMISSION OF THE CRIMINAL COMPLAINT, THE GOVERNMENT SHOULD BE ORDERED TO SHOW CAUSE WHY THE RETIREMENTS SHOULD NOT BE TREATED AS NON-PROSECUTION AGREEMENTS SUBJECT TO THE PROVISION OF RESTITUTION
From the current U.S. Attorney’s Manual, Section 9-16.10 .
Plea Negotiations with Public Officials:
Plea bargains with defendants who are elected public officers can present issues of federalism and separation of powers when they require the public officer defendant to take action that affects his or her tenure in office.
GENERAL RULE: Resignation from office. . . and forbearance from seeking or holding future public offices, remain appropriate and desirable objectives in plea negotiations with public officials who are charged with federal offenses that focus on an abuse of the office (s) involved. (Emphasis added).
Resignation, withdrawal, or forbearance from holding offices in the Legislative or the Judicial branches of the federal government may appropriately be made the subject of plea negotiations, and offers of resignation, withdrawal or forbearance concerning such offices may be incorporated into plea agreements with incumbent Members of Congress and federal judges.
**However, resignation, withdrawal or forbearance with respect to Congressional or federal judicial office may not be imposed involuntarily against the will of the judge or Member of Congress involved because of the separation of powers doctrine. (Citation omitted).
There were four judges and a clerk that retired or resigned after the victims
submitted their criminal Complaint to the U.S. Attorney’s Office (one judge, Schwarzer, was already a senior judge when he committed the acts he’s accused of). There is at least justifiable support for the conclusion that the retirements were provoked by the Complaint, and if the evidence was sufficient to form probable cause, and the victims believe it was because much of the evidence was supplied by the victims themselves, then, but for a prosecutorial decision not to prosecute, the Defendants should have been prosecuted. Ordinary citizens certainly would have been. “Although the government retains broad discretion as to whom to prosecute, its discretion is not unfettered.” (Citation omitted) U.S. v. Gutierrez, 990 F.2d 472 (9th Cir. 1993). On the face of it, the retirements appear to be non-prosecution agreements (“NPAs”) without paying any penalty or restitution. Especially since most NPAs are “secret” proceedings; in conjunction with the fact that the victims have not been provided any information regarding the case or complaint, in violation of Federal statutes. Thus, the government should be made to show cause why the retirements and resignation (clerk Catterson) should not be deemed to be NPAs without the required payment of restitution, and therefore, an abuse of discretion, requiring an order of restitution pursuant to 18 U.S.C. sec. 3771(6).
E.
THE PROSECUTOR’S DECISION NOT TO PROSECUTE THE RETIRED JUDGES AND CLERK IS AN ABUSE OF DISCRETION, BASED ON A VIOLATION OF THE VICTIMS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.
The U.S. Attorney has refused to prosecute any of the complained of
individuals (hereinafter “accused” or “Defendants”), including the retired and resigned individuals, which means that the victims cannot recover restitution. But, if there is sufficient (or probable cause) evidence to prosecute and the USA is not prosecuting for some invidious reason, then the failure to prosecute is an abuse of discretion, for which there should be a remedy.
We offer at least two reasons why the USA has refused to prosecute: (1) the victims have exercised their right to and demanded restitution. Pursuant to the Crime Victims Rights Act, victims have “The right to full and timely restitution as provided in law .” 18 U.S.C. sec. 3771(a)( 6). The USA has indicated in several ways, its refusal to recognize and enforce the victims’ right to restitution. First, in violation of 42 U.S.C. sec. 10607, he has refused to inform the victims herein “of any restitution or other relief to which the victim may be entitled under this or any other law and manner in which such relief may be obtained.” Second, after refusing to prosecute the defendants, several have assumed other positions after “retirement’ and “resignation” without having paid any restitution. Third, the victims herein sent the USA a letter-petition demanding that the USAO prosecute the individuals and seek restitution. Fourth, the victims physically protested at the federal courthouse in Los Angeles demanding prosecution and restitution, and fifth, in the letter submitted in response to the victims’ letter and protest (or petitioning the government for redress), the USA, with an opportunity to comply with Section 10607, stated that it was unable to proceed and that the USA does not conduct criminal investigations. There was no mention of restitution or the victims right to such. A second reason, somewhat connected to the first, is animus towards the victims. That animus likely stems from the nature of the Complaint itself, i.e., against judges; the Complainants themselves, i.e., relatively disadvantaged—due in part to the criminality itself, and the victims insistence on their right to restitution, including the protest. Indeed, at one point, when I was protesting alone, when others could not travel from Ventura, government agents stole a leather jacket of mine, when my back was turned, walking in the opposite direction of my jacket (picketing). In fairness, if my assertion had to be based on direct evidence alone, I would have to state, “I believe” government agents . . . , because I did not actually see them take it. But, based on the totality of the circumstantial evidence, including their immediate presence, I am confident and comfortable saying that they stole my jacket, and it may be in the federal courthouse. My mistake was not calling 911 immediately (although I did report the thief later). But, somehow I did not want to believe that government agents, who are retained to protect the public, would steal a jacket from a citizen exercising his rights. “(E)ven the pre-CVRA case law recognized a dismissal (of an indictment) to be ‘clearly contrary to the public interest’ if the prosecutor appeared to be motivated to dismiss by animus toward the victim.” U.S. v. Heaton, 458 F. Supp.2d 1271 (D. Utah 2006). “The court cannot make a fully informed decision about whether the prosecutor is acting out of animus to a victim without having the victim views on the subject.” Id. This Court now have our views.
_______________________________
LAURACK D. BRAY, ESQ.
cc: Senators Jon Kyl and Dianne Feinstein; Rep. Linda Sanchez;
American Bar Association; NAACP Legal Defense Fund;
L.A. County Bar Association
NO. __________
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re HAROLD JAMES GRIFFITH, JEANETTE M.
ANDREWS, AND LAURACK D. BRAY
HAROLD JAMES GRIFFITH, JEANETTE M.
ANDREWS, AND LAURACK D. BRAY
Petitioners-victims,
v.
THOMAS P. O’BRIEN, United States Attorney,
Los Angeles
Respondent.
On Petition From the United States District Court for the Central District of CA
__________________________________________
PETITION FOR A WRIT OF MANDAMUS
__________________________________________
LAURACK D. BRAY
Law Office of Laurack D. Bray
P.O. Box 611432
Los Angeles, California 90061
(805) 901-2693
Counsel for Petitioners-victims
STATEMENT REGARDING RELATED CASES
There are no other related criminal cases. Since the case does involve misconduct, a related case may be In re Complaint of Judicial Misconduct, 07-89028 and other civil cases are Bray v. Hintz, 04-56274, Griffith v. SHHS, 04-55702, In re Bray and Griffith, 06-71160, In re Andrews, 04-71090, In re Andrews, 05-70961, and Andrews v. England, 05-55372.
PROOF OF SERVICE
I hereby certify that a copy of the foregoing Petition for a Writ of Mandamus was mailed, postage prepaid to: Thomas P. O’Brien, U.S. Attorney for Los Angeles, United States Courthouse, 312 North Spring Street, Los Angeles, CA, 90012; on this 25th day of June, 2008.
_____________________________
Laurack D. Bray, Esq.
