U.S. ATTORNEY(L.A.) ANDRE BIROTTE SHOULD NOT BE CONFIRMED TO BE A U.S. DISTRICT COURT JUDGE : HE IS DISHONEST; HE LACKS GOOD CHARACTER; HE IS LEGALLY A CRIMINAL HIMSELF (FOR VIOLATING PROVISIONS OF FEDERAL CRIMINAL LAW) ; HE SELECTIVELY PROSECUTES CASES TO THE DETRIMENT OF ACTUAL VICTIMS; AND, FROM ALL INDICATIONS, HE WOULD NOT BE A FAIR DISTRICT COURT JUDGE

Los Angeles, California



August 1, 2014
(Today's Date)

April 25, 2104
(Original Date)



Recently, U.S. Attorney (Los Angeles) Andre Birotte was nominated to be a U.S. District Court judge in Los Angeles. Regrettably, especially because he is black and a minority candidate (and there are few of those nominated and sitting on the federal bench in California), I, as a Black lawyer, must oppose the nomination and state, based on my personal knowledge, that he would not be a good federal judge and should not be confirmed and seated on the federal bench.

Among the reasons why he should not be seated are : (1) he is dishonest; (2) he lacks good character; (3) he is legally a criminal himself for violating federal criminal law; (3) he selectively prosecutes cases favoring victimless crimes over crimes with a victim; and (4) he has been an unfair federal prosecutor, so he will probably be an unfair federal judge.



DISHONESTY

On at least two occasions, when I have filed federal criminal Complaints, Birotte, through his office, has provided false and dishonest reasons for not investigating and prosecuting the Complaints. On both occasions, Birotte, through his office has stated that his office, the U.S. Attorney's Office in Los Angeles, does not perform investigations (criminal or civil). This is clearly not true. Even the Attorney General himself, Eric Holder, stated, and admitted, at a recent Congressional hearing, that the Justice Department conducted investigations for another entity. So, the statements by Birotte's office that his office does not perform investigations were simply false. They were also a source of dishonesty for Birotte and his office because the reason for submitting the false statements were to avoid investigating the Complaints, which Birotte knew were meritorious, but, which he did not wish to prosecute. Rather than simply admitting that the Complaints had merit, but that he chose not to prosecute them, which would only raise a charge of abuse of discretion (which would nonetheless be sustained and still be a violation of the law on constitutional grounds), Birotte, through his office, chose to lie to a member of the public and to a victim seeking relief, which was dishonest.

Another level of dishonesty evolving from the false statements mentioned above is based on the processing of the criminal complaints filed with the U.S. Attorney's Office. Ordinarily, when complaints are submitted to the U.S. Attorney's Office, they are distributed to one of the other investigative arms of the Justice Department, e.g., the Federal Bureau of Investigation (FBI), the Alcohol, Tobacco, and Firearms (ATF), etc., for investigation. Only after the case has been submitted to the investigative agency and thereafter turned over to the U.S. Attorney, does the U.S. Attorney perform its own investigation if it chooses to. So, when a complaint is initially submitted to the U.S. Attorney's Office, the Complainant is actually requesting the U.S. Attorney to submit the Complaint to an investigative agency, usually the FBI, for investigation. But, the Complaint is simply submitted to the U.S. Attorney's Office for convenience and ratification. Indeed, the Complaint form, which is produced by the U.S. Attorney's Office, informs the Complainant that he or she may submit the Complaint to the U.S. Attorney's Office (for investigation by the proper investigative agency). Therefore, it is dishonest for the U.S. Attorney's Office to respond to a Complainant as if the Complaint was submitted to the U.S. Attorney's Office for investigation, while knowing that the Complaint was actually submitted to an independent investigative agency for investigation; and, thereafter, to falsely state to the Complainant that the U.S. Attorney's Office does not perform investigations (as if the Complainant intended that the Complaint be submitted to the U.S. Attorney, rather than the FBI or other agency). When any Complainant submits a Complaint, it is with the intention that the Complaint be investigated by the proper official, and the U.S. Attorney knows this. Therefore, this was another level of dishonesty (and fraud) associated with the U.S. Attorney's false statement.

Finally, in at least one letter, the U.S. Attorney's Office, knowing that I charged the Defendants in the Complaint with violating federal criminal law, and that I am an attorney, referred me to the State District Attorney's Office for resolution of my charges against the named individuals. Birotte and the U.S. Attorney's Office knew when they referred me to the District Attorney's Office that the D.A.'s Office did not have jurisdiction over my federal charges, and therefore, could not provide me with any relief. Nevertheless, they, in bad faith, made the referral to me anyway (which is probably what they do to many other lay people or citizens who have no knowledge or understanding about jurisdiction). This was dishonest as well.



CRIMINALITY

Not only were the above-mentioned statements regarding the U.S. Attorney's Office not performing investigations false, but they were also a violation of federal criminal law. The statements by the U.S. Attorney's Office claiming that it does not conduct investigations were materially false, because, it, in fact, does conduct investigations, both criminal and civil. And, since the false statements were intended to and did deny the Complainant-victim any relief (i.e.,a proper investigation and prosecution, and any monetary or injunctive relief, i.e., restitution) for his Complaints (by indirectly considering the case closed), the statements were material. Pursuant to 18 U.S.C. sec. 1001, "whoever, in any matter within the jurisdiction of the executive. . . branch of the Government of the United States, knowingly and willfully (2) makes any materially false,. . . or fraudulent statement or representation; or (3)makes or uses any false writing or document knowing the same to contain any materially false. . . , or fraudulent statement or entry; shall be fined under this title (and/or) imprisoned not more than 5 years. . . ."

Birotte, through his Office, knowingly and willfully sent letters to me containing materially false or fraudulent statements (stating that the U.S. Attorney's Office does not conduct investigations). One letter contained no signature, therefore, it had to be assigned to Birotte himself. Further, because the letter was sent to me by mail through the U.S. Postal Service, the action was a version of mail fraud. See 18 U.S.C. sec. 1341 ("Whoever, having devised or intending to devise any scheme. . . to defraud.. . . for the purpose of executing such scheme. . .or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service,. . . or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both." A criminal Complaint was filed against Birotte for his actions as to one letter at least. And, until Birotte is brought within the criminal justice system, by arrest or otherwise, and is cloaked with a presumption of "innocent until proven guilty", he is and remains a criminal. And, a present and active criminal should not be a district court judge.

NOTE : I will forward a copy of this blog to the Senate Judiciary Committee, and UPON REQUEST, I will forward a copy of certain letters to that Committee.



CHARACTER

Even if Birotte is not convicted of a crime, the conduct of a U.S. Attorney submitting false statements to a citizen of the United States attempting to file a criminal Complaint, when that U.S. Attorney is obligated to investigate and enforce the law, speaks volumes about the character of the U.S. Attorney, especially as it relates to being confirmed and assigned to a district court judge position. Should a U.S. Attorney who has demonstrated a pattern of lying to avoid investigating and prosecuting meritorious complaints be assigned to a U.S. District Court judge position? I think not.



SELECTIVE PROSECUTION : VICTIMLESS CRIMES V. CRIMES WITH A VICTIM

Birotte has demonstrated that he will selectively utilize prosecutorial resources to prosecute victimless crimes ahead of crimes with actual victims who have suffered actual, immediate, and specific harm, which is entirely prejudicial to actual victims.

While I have not scanned the entire prosecutorial case record to determine the number of victimless crimes prosecuted ahead of a crime with a victim, and I need not do so in order to prove my point (because no victimless crime should be prosecuted ahead of a crime with a real and actual victim who has suffered real and actual damage--either physical, mental, or property), I will cite to two recent victimless crime cases and my own "crime with a victim" case for comparison.

In 2007, I filed a formal criminal Complaint in and with the U.S. Attorney's Office (and have filed several since surrounding different scenarios and individuals; all meritorious) charging several individuals, state judges, with causing and maintaining my eviction from my home-law office located in Ventura, CA, through unlawful and racially-motivated and discriminatory means. The premises, a storefront business office with living facilities, were both my home and law office. At the time of my eviction, I had lived in the premises about 4 years, and I was still strugggling to make my law practice a success monetarily (as far as benefits to my few clients and the community, I had already been a success, see infra). Also, at the time of my eviction, I was the only Black lawyer practicing in the city of Ventura, and the only Black lawyer with a private practice emphasizing federal law in the County of Ventura, CA (the county where the Rodney King police officers were found not guilty for the beating of King), both the city and county had about a 2% Black population and a 70% white population (i.e., predominantly white), with the remaining percentages spread among the remaining minorities (with Hispanics having the largest percentage).

I had black, white, and brown clients, but my major successes were on behalf of black clients, see, e.g., In the Matter of Robin Juraine Crammond, 23 I & N Dec. 9 (BIA 2001)(en banc) (in this case, it was the parents of Robin, a citizen of Belize, who retained me after Robin had been ordered deported after immigration hearings (Robin was represented by another lawyer for the hearings--I entered the case after the hearings were complete, and basically filed an appeal with the BIA). I moved to re-open the case, was successful, and the deportation order was reversed. However, Robin left the country without proper authorization while the motion was pending, so the reversal was vacated; and Jackson v. Guirbino, 364 F.3d 1002 (9th Cir. 2004)(again, I was retained by Jackson's parents during Jackson's incarceration. When I entered the case, Jackson, who is Black, had already filed his own appeal, pro se, and had also filed his Opening Brief on appeal (and raised multiple issues). So, I had to file a Supplemental Brief. And, it was the Miranda issue that I raised in my Supplemental Brief that caused the reversal of Jackson's murder conviction. A reading of the Court's opinion, however, makes it appear that only one brief was filed with a multitude of immaterial issues. That was not the case). Also, I successfully settled a sexual harrassment case on behalf of a Black woman against the U.S. Navy. So, I, and my law office, clearly was an asset to the community, and especially, the Black community. That is, my services were specifically needed in Ventura County. So when my law office was shutdown, it was not only harm to me, but also to the black community of Ventura County.

However, at the time of my eviction, in 2003, in terms of assets or monies, I simply had enough to maintain myself (but, I had never missed a rent payment throughout my four years of residence and practice, and my manager testified to that fact at a negligence trial--consequently, this is one reason or type of proof which points to my eviction being unlawfully and intentionally obtained), while awaiting for some cases to mature.

I had to move to Los Angeles, where I had family, and I was never able to obtain another home or law office thereafter, to this day. I never recovered from the unlawful eviction, and, if anything, my circumstance deteriorated or got worse.

So, when I filed the federal criminal Complaint in 2007, I specifically sought restitution, including monetary and injunctive relief (i.e., the return of my home-law office). But, other than fraudulent letters, I never received any substantial response from the U.S. Attorney's Office regarding my Complaint, either from the George W. Bush administration or the Obama administration that followed.

However, it is clear that U.S. Attorney Birotte's reasons for not prosecuting the case was not based on the merits of the Complaint, because the Bush administration FBI took some action on the Complaint (based on my submitted evidence alone), i.e., causing two Defendant judges to step down from the bench (but not providing me with any relief), which demonstrated that the Complaint was meritorious. Indeed, the actions of the Bush's FBI was, in reality and unofficially, an NPA (Non-Prosecution Agreement), whereby the Justice Department agrees not to prosecute an individual (upon sufficient probable cause proof that the individual has committed a federal offense) in exchange for the person paying restitution (to the victim of the individual's crime, where there is a definite victim). But, the FBI and the U.S. Attorney's Office, in my case, refused to make the Defendants pay restitution. So, while the U.S. Attorney's Office allowed the NPA Defendants to retire, and escape prosecution, it refused to provide me with any relief for the discrimination. U.S. Attorney Birotte could have and should have enforced the agreement himself once he took office (by requiring the Defendants to pay restitution), but, he has not.

There were other victims as well, including two white clients of mine, who were part of the 2007 Complaint, and who also were ignored. One was Jeanette Andrews, who sought relief regarding discriminatory treatment of her disability discrimination case against the Navy, and Harold Griffith, who sought relief for discriminatory treatment of his Social Security disability case (they both were named Complainants in the 2007 Complaint).

Moreover, there were further victims based on further Complaints filed after the 2007 Complaints, and no action were taken by the U.S. Attorney's Office or Birotte regarding any of the Complaints. All of the Complaints are still pending in the U.S. Attorney's Office in Los Angeles. All of the individuals named in the Complaints (except two from the 2007 Complaint, which were withdrawn) remain pending.


On the other hand, I know of at least two recent personal gain and victimless crimes cases which were prosecuted by the Los Angeles' U.S. Attorney's Office and U.S. Attorney Birotte. Namely, U.S. v. Toby G. Scammell, No. CR 13-0733, a securities case, whereby a former investment fund employee was indicted in October, 2013 on federal charges for insider trading in stock prior to a deal involving the acquisition of one company by another, in which Scammell is said to have "reaped illegal profits of over $192,000"; and the recent indictment of California State Senator Ronald Calderon for bribery and other charges, whereby Calderon is said to have received over $100,000 from bribery schemes. Both of these cases are personal gain cases without an actual victim, other than secondarily the public in some way. But primarily, these are crimes committed for the enrichment of the individual criminal, while the crimes with a victim are intended to and usually do cause specific and individual harm to a specific individual (but, sometimes that harm can be remedied by prosecution and the payment of restitution). Such is the case with my case (as outlined above). Meanwhile, as Scammell and Calderon were being indicted and prosecuted, the Defendants in my Complaints, who have caused actual harm to real victims, were and are being ignored.

My case and the other cases with victims mentioned above were pending at the time the U.S. Attorney's Office prosecuted the Scammell and Calderon cases.

It is prejudicial and nearly a complete abuse of discretion for a U.S. Attorney, any U.S. Attorney, to give priority to victimless cases over cases with actual crime victims, because of the nature of the different circumstances. Very rarely should any victimless crime case be prosecuted before a case with an actual crime victim, especially where a victim is in need of immediate attention to remedy the harm done. Since Birotte has been U.S. Attorney, in my view, he has placed victimless crimes ahead of crimes with actual victims, which evidences poor judgment. And if he displays poor judgment as a U.S. Attorney, he will display poor judgment as an United States District Judge.


FAIRNESS

In my view, the most significant attribute or trait a judge, any judge (state or federal), must possess is the ability to be fair. It is not always easily achieved and much of it must come from within. Most times it requires a high level of strength. It is not easy for some to be fair in America (with the multitude of races, cultures, languages, customs, etc.), but it is achievable. Many times it may conflict with your own values, or with your own personal beliefs as to what is right or wrong. But, one can achieve fairness. For some, like myself, it comes easily and naturally. However, I do not think that U.S. Attorney Birotte has achieved it, and there's no indication that he will achieve it as a district court judge. From my knowledge, experience, and belief, Birotte treats different criminals differently when they should be treated alike, and he treats different crimes alike when they should be treated differently. That is, he favors some high level criminals, e.g., chief executives and/or CEO's of corporations and banks and judges, over low level criminals, which is not only unfair, but also can be unconstitutional and illegal. And, he favors prosecuting victimless crimes over crimes with victims, when it should be the other way around, which is unfair, both to the victims and the public, who likely would not want their resources used in this manner.



U.S. Attorney Andre Birotte should not be confirmed to be a U.S. District Court judge in Los Angeles.


**UPDATE--August 1, 2014

According to the L.A. Times, Birotte has now been confirmed by the Senate. So, he will now be a sitting District Court Judge. He will not be a good one. If he lied as a U.S. Attorney, he will lie as a U.S. District Judge. The Senate confirmation process is a sham and a shame. Qualifications alone is no indication that one will be a good judge. Birotte is proof of that.