second circuit appeal case 11-3300

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11-3300 cr

United States Court of Appeals

for the

Second Circuit

° ° ° ° ° ° ° ° ° °

UNITED STATES OF AMERICA,

Appellee

- v. –

FRITZ GERHARD BLUMENBERG,

Defendant-Appellant, pro se

° ° ° ° ° ° ° ° ° °

Appeal from the United States District Court for the

Southern District of New York [Case Nr. S1: 01-cr-571]

=========================================

BRIEF for the Defendant - Appellant

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TABLE OF CONTENTS

TABLE OF CONTENTS 2

PRELIMINARY STATEMENT 3

PRO SE STATEMENT 7

ARGUMENT 1 8

ARGUMENT 2 11

ARGUMENT 2 15

ARGUMENT 3 17

Lack of jurisdiction in a federal court over the subject matter of the litigation cannot be waived by

the parties. The court should decline to proceed with the cause. US vs Corrick. 298 U. S. 436

(1936). If the record discloses that the lower court was without jurisdiction, this Court will notice

the defect although the parties make no contention concerning it. [at 440] This Court has

jurisdiction on appeal to correct the error of a District Court in entertaining a suit over which it had

no jurisdiction. Id.

CONCLUSION 21

CERTIFICATION 28 U.S.C. § 1746 (1) 21

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Preliminary Statement

This is a pro se Appeal of two disputed sequential Orders the District Court (JGK) was timely

noticed for Appeal [see: 11-3300 Case Documents 1-2-3-4 herein, Appendices I and J are

Defendant’s submissions in Original] based upon verified claims, that were denied and are hereby

disputed for serial abuse of judicial discretion under strong appearance of impartiality, at best.

This pro se Appeal also challenges the initial JURISDICTION, inter alia, and similarly fundamental

issues arising from erroneous and unlawful official conduct while some are ultra vires acts.

Furthermore, on June 8, 2009 Appellant filed a WRIT OF AUDITA QUERELA [Appendix E],

brushed off by the District Court on hardly any non-predilective grounds fellowship of a

partisanship pattern and by wrongly and swiftly re-coloring of a post-conviction WRIT of ERROR

motion as a “prisoner application”.

The AUDITA QUERALA’s arguments are fully incorporated in this Appeal because no valid

decision was rendered and on other grounds: the District Court administratively botched my timely

NOA entry to a invalid decision(supra), but one year and many interventions later, it ordered –

nunc pro tunc - that the NOA be recorded as timely as it was. This Court regrettably decreed – sua

sponte – that the District’s timeliness ORDER and the controversy on APPEAL shall suffer from

sudden infant death in 10-4777 pr [in a PAID-FOR-JUSTICE proceeding - as my IFP was as botched

as my [pr] status]. In 10: 4777 pr the District, upon my Motion to rectify the error above, claimed

incapacitation even though “closeness“by designations as a fractional peer are not infrequent.

The “[pr]” designator violated Kaminsky vs U.S., 339 F.3d 84, 91 (2d 2003) since no MOVANT

[living in Germany and freedom] may be relabeled or mistreated as if “confined” for the underlying

proceeding.

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This designation is a highly abusive but popular scheme to run on inapplicable pro-

government “2255” rules to divert the ends of justice. These “relabeling” diversions are rampant,

impermissible and shall now be rectified pursuant to the applicable standards for WRITS OF

ERRORS by persons in liberty.

Appellant’s direct Original SUBMISSION and REPLY (Appendices I and J ) consist of two

complex basic issues at bar, a Mandatory Notice of “Satisfactory Restitution compliance before

Sentencing1 for Correction” [1) below] and a Motion for an Order to Show Cause [2) below]:

1) The restitution issue arose during plea and again before sentencing and was deliberately

tossed aside by a Court who had scienter that its “Restitution Sentencing Order” would be

materially false, rewarding a “fictitious victim (BMI)”, and unsupported by corporate facts

the Court wanted to dodge to save the government from defeat. The ORDER was also

unsupported by the Court’s own SDNY probation department and was in serial violation of

§3663 absurdly permitting the government to shun its burden of proof of loss amount

under §3663 A (e) that was disputed by the defendant as fully refunded since 1998. The

Court went into special judicial cover up sheltering the prosecution from Brady

consequences the Court knew existed, if only from 100 pages of Motion-practice by Co-

defendant Lee. Judicial abuse was complete when “loss calculations” under a mandatory

sentencing scheme causes tortuous loss of liberty. Appellant submits that funds

beneficially owned by BMI were withdrawn with my authority but incorrectly supported by

many bogus payment vouchers (invoices, proformas) that Burda Media and this CEO

approved and paid. The 1998 real settlement (Appendix C) recognized the amount

[$1,129k] Appellant owed his German employer BURDA GmbH per demission date 9-July-

1 Appendix A : Southern District Sentencing Reporters (212) Tr. #245UBLUP, Page 55, 56, ff

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96, whereby BURDA GmbH held 100% of Burda Media NY capital. These civil obligations

had been substantially refunded and materially satisfied before June 2001 [eleventh-hour

indictment]. Germany’s Mission recorded the cloture June-5-1998 for filing at the Berlin

Charlottenburg Courthouse [where German non-resident garnishments register]. The

SENTENCE calculation on REFUNDED amounts that a FBI-faked “victim2” never claimed

and certainly no longer claimed, was judicial abuse. The Court curried favor with the

executive branch and its “vendor”: The BOP stepping upon Appellant’s basic rights and

legal position, which FD Weinstein was utterly incompetent [and much too fearful] to

protect.

Appellant submits that the Court’s myriad dilatory maneuvers on Restitution finally

resulted 12-23-2011 in a pusillanimous hand endorsement that ordered “Restitution

satisfied” [DE 268]. The Court’s circumnavigation of Appellant’s reasonable claims and

affirmations since 2003 added insult by “scrawled endorsement” on plaintiff’s letterhead,

as if an eight plus years post-maturity doodle could divert accountability for serious

misconduct, dogging , diverting and deliberately procrastinating an outcome that

invalidated and vacated the grave sentencing error. In furtherance, the Court attempts to

still dodge sanctionable but unsanctioned government acts of moral turpitude -

submissions which avoided judicial orders and “in contempt” obstruction of justice by

means of continued deception, diversion and by causing low-in-the-DOJ-food-chain sub

alternates3 to file perjured statements. The government still went further by

“puppeteering” a predilection-prone “magistragic” enabler (MJ.Pittman was up for

2 Appendix K demonstrates the FBI’s deceptions over a fake victim (to fabricate locus delictis on

Manhattan Island), and FBI’s insanity over a “fugitive harboring” baloney made from whole cloth.

3 Sworn by dispensable FLU (Financial Litigation Unit) staff, US attorney Garcia awarded honors upon

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renewal4 of his term) to hammer out a bogus R&R. These issues, however, are not being

directly appealed here and now, as the appellant “received material vindication of

restitutional finality at last”, albeit with manifest injustice’s bitter taste from absurd

behavior by those sworn to speedy process and unbiased comportment.

Appellant submits, that this recorded pattern of official misconduct5 below be

ordered for professional review and for judicial [de novo] review and whether sanctions, or

maybe professional treatment are warranted by the results.

2) My May-15- 2011 Submission’s was labeled “Mandatory Court Notice and Motion for an

Order to Show Cause” indicates that REVIEW of miscarriage of justice, prosecutorial

malpractice and rigged procedures are on recorded between the bench and “row ONE”

who colluded repeatedly against this defendant-appellant, against the two co-defendants

and simultaneously against the American Public they are sworn to shelter from harm but

none of these rent-seekers care about. The US taxpayor’s entitlement to a functioning, fair

and impartial justice apparatus remains undisputed. Obviously huge tax moneys cannot

buy morals or quality at the DOJ. Indeed the government’s position against SHOWING

CAUSE (Appendix B) raises the uncomfortable spector of “tacking too close to the wind”6

This Appeal demonstrates that at least the 12th & 18th floor systems were broke, but not

4 Co-defendant VIERTEL submitted a MOTION in SUPPORT of appellant’s OBJECTIONS to MJ Pitman’s

“pitiful” conclusions without merit, eventually uncovered as a pro-government bias study. Appellant

submits Appendix D : VIERTEL’s submission, while strongly worded, amazingly detailed and correct.

5 which has its place in medical journals as such “pathological malfunction resulting in self-imposed denial

of the existence of ethical boundaries in individuals suffering” from this acute trauma

6 See Coppa, 267 F.3d 143, quoting Kyles (514 U.S. 439) intra

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only, because solid proof7 arrived from the Hon. Andrew Young, “that at least since 1986,

the prosecution on row ONE began to “run [our] federal criminal justice system”8. These

issues are addressed below for correction of the abusive denials for the MOTION for an

ORDER to Show (multiple) Cause.

Pro Se Statement

Haines vs. Kerner, 404 US 519, controls here to allow for any colorable claim of innocence by a

pro se Appellant, who is without sufficient IN JURIS finesse and without assistance by

competent counsel, thus procedural hurdles are manifestly unfair and “must be avoided”. This

appellate action represents as such, as it attacks the subject matter Mail JURISDICTION and the

VALIDITY of a claim of coerced and manifestly unjust plea, coupled with question of law and

“Padilla violation” [Padilla vs Kentucky, 130 S. Ct. 1473 (2010)] during the “guilty allocation” on

these prongs:

a) A colorable claim of innocence by the appellant,

b) A dispute of the validity and fairness of the “coerced guilty” procedure on April 5, 2002,

c) A claim without unfair prejudice to the United States of America

d) A claim that could not be construed as an unjust advantage to this accused appellant.

Manifest injustice is demonstrated below, and credibility is ascertained by the submissions

and documents this appellant furnished post-plea to the Court, in particular for the absurd “ultra-

economical prosecutorial theory from whole cloth” that Burda Media was a “non-profit” pauper -

an “arching crime theory nullified by its facts, when this genuine NY business corporation (AD

1978) became a hefty profit center since 1-1-1992 under appellant’s control until demission in

July 1996, and proudly produced $7-8 million revenues each year by satisfactory services to

almost three dozen overseas media clients. This undeniable material fact was counterfeit by the

7 The suggestion of favoritism cannot be defeated by the very demonstrable fact that it has

repeatedly occurred , to defang the discovery of and sanction for conspiracy by “justice” officials

8 Judge A. Young, MAD http://www.nytimes.com/2012/06/02/opinion/a-jury-draws-a-line-on-

sentencing.html

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prosecution who dogged 5 years of internal Burda investigations by “close ally and “referrer” M.

Pomerantz, and set out to withhold financials, bank accounts and audits they had obtain under

subpoena during 18 month until early August 2002. The FBI man was instructed to divert the

economic truth at BMI and he admitted it shamefully in confidentiality to a CI. The DOJ fabricated

proceeding out of pure hubris and greed to please powerful players uptown. District Courts do get

busy at times covering up official misconduct on row ONE for reasons of its own, unlikely unrelated

to extra-judicial liabilities, reputational concerns over professional licensing, stature and a corner

office later on: “Oh, what a tangled web we weave, when first we practice to deceive!” [Sir

Walter Scott, Scottish Novelist (1771-1832)]. Appellant relies upon this distinguished Court’s

familiarity with a certain type of unlawful behavior patterns below.

ei incumbit probatio qui dicit non qui negat

*******

Argument

I

. The first fundamental question in this criminal case is whether JURISDICTION

existed, permit an indictment from a Grand Jury to proceed into a case under adjudication from an

Article III judge on the basis of an allegation of a breach of statutory laws, or whether STRUCTURAL

ERRORS corrupted the proceedings: “On every writ of error or appeal the first and fundamental

question is that of jurisdiction, first, of this court, and then of the court from which the record

comes. This question the court is bound to ask and answer for itself, even when not otherwise

suggested and without respect to the relation of the parties to it.” [emphasis added], as adopted

in Capron v. Van Noorden, 2 Cranch, 126, decided in 1804;

Appellant submits that NO JURISDICTION for Mail Fraud existed since a “scheme” is per se

crime-free and only turns into a statutory violation once INTERSTATE MAILS and INTERSTATE

private and commercial carriers are abused by completion of a DELIVERY into another of the 50

domestic States. Foreign deliveries and acts are clearly excluded from the §1341 statute and

DELIVERY is into Offenburg, Germany is far outside the domestic reach of §1341. Neither the

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agent’s on row ONE or the Adjudicator are competent to manufacture “jurisdiction”9. That

competence lies with Congress alone, and Congress did not criminalize foreign mailings and any

attempt or like act violated the separation of powers rule. Also:

expressio unius est exclusio alterius

is fully applicable to 18 USC § 1341 , without fail and a principle rule any Court must respect.

The INDICTMENT above (S1, 3s is identical) is solemn PROOF that INTERSTATE transport

was neither employed, nor would it have been chargeable due to the plain historic facts

constituting the operations at BMI, and because no domestic interstate transportation could have

furthered a scheme at Burda in any way.

Burda Media was a foreign owned local NY producer of Media content it sold in FY

1995/96 for over $15 million exclusively to 25+ overseas clients. Justice Scalia summed it up in

his latest West-Law book: “Since the beginning of the Warren Court in the middle of the last

century there has been a "breakdown" in the principles of judicial interpretation that has eroded

public confidence in the rule of law”. See also: United States v. Ford, Dkt No. 03-1774 (2d Cir. Jan.

19, 2006): "[R]estraint must be exercised in defining the breadth of the conduct prohibited by a

9 Manufactured federal jurisdiction is even more offensive in criminal than in civil proceedings, cf. 28

U.S.C. Sec. 1359. As late Hon. Judge Freedman ruled with respect to civil actions in McSparran v.

Weist, 402 F.2d 867, 873 (3 Cir. 1968) manufactured jurisdiction "is a reflection on the federal judicial

system and brings it into disrepute."

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federal criminal statute."[Op.at 14][emphasis added]. And: “There is a canon of legislative

construction which teaches Congress that, unless a contrary intent appears, is meant to apply

only within the territorial jurisdiction of the United States”. U.S. v. Spelar, 338 U.S. 217 at

222[emphasis added].

The Supreme Court issued its conclusions when Justice Scalia’s taught the Second Circuit

in Morrison vs National Australia Bank Ltd. Et al , SCOTUS 08-1191 of June 24, 2010: “It is a

"longstanding principle of American law 'that legislation of Congress, unless a contrary intent

appears, is meant to apply only within the territorial jurisdiction of the United States.' ". EEOC vs.

Arabian American Oil Co., 499 U. S. 244, 248: “When a statute gives no clear indication of an

extraterritorial application, it has none “[emphasis added].See also Jed S. Rakoff, The Federal

Mail Fraud Statute (Part I), 18 Duq. L.Rev. 771, 775 (1980) ("The first element of federal mail

fraud …; devising a scheme to defraud ….; is not itself conduct at all (although it may be made

manifest by conduct), but is simply a plan, intention or state of mind, insufficient in itself to give

rise to any kind of criminal sanctions."). One might easily devise a scheme to defraud entirely in

one's head and not engage in any act proscribed by the statute until "plac[ing]" an item into the

mail. US vs Ramirez, Vitug 420 F.3d 134 (Second Circuit, 2005). Academics and scholars of

Rakoffs caliber agree10.

No single ITEM was mailed or consigned by (what the government called “victim” who was

without a dollar of loss) Burda Media itself, nor caused by any of the three defendants, since AIR

LINE records prove that M&M Aircargo in Munich, Germany was the shipments consignee (not

Burda Holding in Offenburg), through CARRIER LUFTHANSA’s air way bill, an official DOT CARRIER

transport document, the District Court has on record. See Appendix H.[Burda is nowhere to be

found on this exclusive bill, a really true bill at last in this proceeding]

This distinguished Court should employ a “common sense reading” of the indictment

whether, on its face, it alleges a prohibited “interstate use of the mails or carriers”, or whether

what Appellant submits, it “failed to state a crime” [for lack of a interstate commerce].

10

Limiting the unlimitless in Mail Fraud is standard L2 fare referencing lawprofs Podgor, Henning et.al.

others who teach that “international mail” was deliberately not proscribed by Congress in §1341.

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Argument

II

The second fundamental question is based upon PLEA MERIT and whether the primary

(elected) branch of government authorized the secondary and tertial (unelected) branches to

complot court cases without statutory authority and without genuine American Interests at stake,

and did not inform the public about it. They did not. They also gave no authorization to keep those

controversies running for 11 plus years on the back tax-payor’s11 precious funding when a case is

based upon unreal micro-economics12, hypothetical jurisdictional and on quasi jurisdictional

venue grounds, jurists of reason can detect. In my particular proceeding the legal quality and

validity of the preconceived “boilerplate Court verbiage” recanted at a “judicial” plea colloquia for

the record to demonstrate particular perniciousness and repulsive unlawfulness jurists of reason,

again, can detect. The District Judge was unable to extend its reach into any factual basis for a

plea he solemnly proclaimed he has a duty to assure as a basis for its “acceptance” of any plea.

Well, appellant submits, its hogwash of the size of a judicial farce in 41 pages that appellant

respectfully submits in Appendix A. [on pg7, on pg 24 Weddle admits to the botched Pimental

letter]. The Court “inquired” whether I understand some charged act thing that’s not even criminal

per se, while the “supercrucial $8,120.00 Agate Invoice” the putative “corpus delicti ad

transportum”, remained totally obscured, unmentioned. At colloquia the utter irrelevance whether

travel to “Offenburg, Germany” (wrong again) in June 1996 [Tr.pg 35] was a real nullity and

whether “the mails” were used vel non, demonstrates the coordinated malevolence at play, totally

utterly contrary to any factual basis. Conspiratorial charges were fully gutted as well.

The argument therefore centers upon the VALIDITY OF THE PLEA by an unprotected,

inefficiently and wrongly counseled alien who was coerced what by FD Weinstein called “eating a

11

Appellant was a substantial resident taxpayor and submits that he truthfully reported and fully paid

his share of federal, Social Security and state taxes for the entire duration of gainful occupation since

1972 (24+ years), including FY 1995 and 1996 sworn and true declarations, for which he was absurdly

accused on bogus hearsay grounds [IRS’s agents not even relied upon] without a shred of proof, to

have “willfully” shortchanged the IRS, which was ultimately squashed in May 2011 by his German

employer CERTIFICATION (see: Original Submission dated 5-15-2011 DE#242, ANNEX 1,2,3)

12

A self-aggrandized white shoe firm was dishonest enough to fabricate for profit and fees

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whole indictment”. The scheme was obviously familiar to Weinstein, yet above a rather “disliked”

[see US vs. Barroso,108 F.Supp 2d 338,344 (SDNY, 2000), affirmed 252 F.3d 653 (2d 2001)]

plot by the government to abuse guilty allocations to further what amounts to the “denial of due

process” [US vs. Dolah,245 F.3d 98,107, 2d 2001]. Appendix E is a prewar-letter by Lee’s

counsel on the eve of my “allocation” which enforced my reading of scribbling concocted by FD

Weinstein, repeatedly making appellant recant unfamiliar words unrelated to the charges

appellant knew about, while pointing his middle-finger at a cheat-sheet Weinstein had slapped

together, running.

Again: the allocation failed to establish a “ conspiracy with Lee or Viertel”, when appellant

referred to conspiring with office staff, far away from the first charge the government was so eager

to finagle courtside. Appellant’s unintelligence and “mis-conceptualization” of the entire

proceeding is striking read; while I grasped for help in honest belief that – uncharged - “mail-

ordering of domestic merchandise” was the crime to plead to, the District Court ruthlessly

continued to waterboard a tongeless alien defendant in total disconnect from what “factual basis”

a valid plea required.

Playing first fiddle & prompter was one AUSA Justin Weddle [“supervised” by AUSA George

Canellos] who reached notoriety for trespassing federal statutes long before he was apprehended

and disqualified by a distinguished “Aleynikov” panel of this Court in February.

But, this “government” still places reliance upon the mockery at my unintelligent plea on

page 2 of its 6-30-12 response. Assistant proctrix Cohan’s undocketed letter [to JGK) states:

“Blumenberg’s contentions should be rejected. On April 5, 2002, Blumenberg pleaded guilty to

Indictment S1 01 Cr.571 (JGK), filed in five counts.” This contention should be rejected as a false

basis for attempting to quash valid ERROR claims, and the government further pretends by

mocking the District Court, that an alien plea was sufficiently investigative and factual to have

ascertained the jurisdictional validity of the underlying charges. A travesty of obvious disconnect

from Courthouse reality by a Court officer [See: Appendix B]. The question, who the government

take for a fool, is duplicitous and rhetoric.

I hereby submit, that upon arrival in Germany 2006 I slowly recovered psychologically from

previous cognitive ailments. After review of my records and recollections, I unilaterally withdrew my

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coerced plea in 201013, also and because of “Padilla” grounds which the Supreme Court

recognized as a Sixth Amendment violation. I was demonstrably subjected such 6th Amendment

violation on April 5, 2002. The “Plea” Transcript’s content is significant to demonstrate the

Januslike measure courtroom terror can achieve by an “Art.III judge[s] [who] are presumed to

know the law” U.S. vs Kezerle, 99 F.3d 867, 870 7th (1996). I submit that it appears true that

“knowledge is not, or is not merely, justified true belief"14

From all corners of the Transcript the federal defender’s ineptness and ineffectiveness is

established crossing FD Weinstein into open collusion against the direct interest of his client, while

it establishes my bland unintelligence combined with involuntary, prescription drug induced,

misunderstanding of which part, what act and how I might have violated all of the required sine-

qua-non conduct elements or a factual mens rea element necessary to the criminality proscribed

by an act of Congress. Appellant did not breach any federal criminal statute15 some 6 years earlier

[Justice Kennedy suggested several “measures to help ensure against late, frivolous or fabricated

claims.” That weren’t employed here]

. Why & How an international airfreight carriage to Germany on June 28, 1996 became a

proscribed air-cargo method not the least violating Congress’ protections for domestic

instrumentaria and Congress’ seriatim (§1341) statutory inclusion of interstate carriage only, and

Congress’ exclusion of “foreign” carriage or delivery to this date after Congress modified the

statute to increase the penalties and Hurrican acts but it did not touch the interstate limit.

13

European Citizens are permitted on grounds that [coerced pleas] infringe upon an individual's

rights under Article 8 of the European Convention on Human Rights, incorporated also in the

UK's Human Rights Act 1998.

14

Fred I. Dretske. Knowledge & the Flow of Information. MIT Press, Cambridge, Mass., 1981.

15 Appellant paid <$3000.00 fine and received 1 year unsupervised probation for five distinct breaches

of trust he owed his long-time employer Burda GmbH in Offenburg, Germany, including the $8,120

“Agate” voucher appellant confessed to have fabricated inside his Manhattan Burda office, that

became the – false - basis of the mail fraud delivery in 2001. International Delivery was a fact, and

Germany’s Judge examined the “Agate” original exhibit in Offenburg prior to sentence to pronounce

that “this case has more holes than a Swiss Emmentaler”. The Judge ordered the records expunged by

December 1999, after probation time uneventfully completed in New Jersey, appellant’s residence.

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Thus the District Court certainly kept this violently miscounseled alien far away from the

Strickland rules and from Sixth Amendment “goodies” and rather blindfolded the alien inside

pitched darkness about what the §1341, 1343 and 371 laws actually prohibits (see Tr.) while

clouding its own very dubitable subject matter jurisdiction if not the entire lack thereof. See

“Subject matter jurisdiction” is an “absolute stricture on the Court” Leroy vs Great UC 443 U.S.

173, 180 (1973).

Further, the District Court conscientiously avoided addressing the maximum of penal

consequences appellant could suffer from an admission of guilt. This is a judicial act beyond

salvage and entirely INVALIDATES the plea, because such acts violate human rights and what

Padilla [supra] taught those in the retail segment of the judiciary laboring somehow sometimes

clandestinely on the other side of honorable, the other side of fair and of impartial, while clogging

the discharge of their constitutional obligations and their solemn oath, see 28 USC §455.

In fact, the District Court went into alien-invalid and “bogus” supervisory release periods

from incarceration (BOP’s Fort Dix staff ridiculed my timely request for CCC half-way house in

2005 calling me foolish believer in judicial proclamations) and the – equally - entirely “bogus”

probation portion of the punishment, as well as keeping dead silent on removal by deportation,

which seems to be disrobed dirty words during plea and sentencing, plus, most unlawful, was the

Court’s, the government’s and my “defender’s” staged16 silence about the loss certainty of a

“quarter-century-earned” old-age-benefits amounting to hundreds of thousands of Social Security

dollars over time, that were absolutely, positively and definitely not a simple collateral

consequence for me, the silly alien “eating a bogus indictment”. I relied upon Pimentel’s letter the

government admitted suddenly to have botched (see Appendix A Tr. Pg 7), but all the participants

decided not to disclose the “undeniable loss of substantial paid in benefits”.[Appendix E, 2008

benefit denial letter exhibit “B” by Social Security Frankfurt- “A” deleted on privacy grounds ]

16

It is unconscionable Court room misconduct that NONE OF THE PROFESSIONAL LITIGATORS NOR

THE PRESIDING JUDGE warned this 58 year old alien defendant U.S. wage earner- tax payor, who was

unlearned in law, a “permanent” resident and NH (number holder) of Social Security Records (see FBI

records), that a deportation-prone “guilty plea allocation” will result with certainty in consequentially

disabilitative LOSS OF SSA Title II retirement and/or disability benefits to an alien.

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Argument

III

The third fundamental question at bar is that of EQUAL JUSTICE, whether and how 2 aliens

(Appellant and co-defendant VIERTEL) could carry punishable guilt for identical federal violations

“allegedly done in cahoots” with the only American-birthed defendant, John Lee, whose was - S2

indicted on 6-6-2002 on more substantive Counts than Appellant and co-defendant - able to

obtain a micro-surgery extraction “nolle-prosequi” on the night before July 4th 2002, staged by the

current Deputy US attorney, Richard Zabel, acting on behalf of Lee as surgeon private causing a

clean sweep17 ex machina. This – albeit safely guarded – secret procedure set the gold standard

for effective assistance by able counsel, something two aliens could not muster or afford.

17

Terminated Counts for Defendant John Lee

Disposition

18:371.F CONSPIRACY TO DEFRAUD THE

UNITED STATES (CONSPIRACY TO COMMIT

WIRE FRAUD)

(1)

In light of the foregoing, I recommend that an

order of nolle prosequi be filed as to

defendant John Lee with respect to

Indictment 0 Cr. 571, Indictment S1 01 Cr.

571, and Indictment S2 01 Cr. 571.


UNITED STATES

(1s)







UNITED STATES

(1ss)






18:1343.F FRAUD BY WIRE, RADIO, OR

TELEVISION

(2)







TELEVISION

(2s)






18:1341.F FRAUDS AND SWINDLES (MAIL

FRAUD)

(3)






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The warrior-band’s cloture by nolle prosequi was, more likely than not, caused by purest

proctor greed, staged by two über-pressure “S2” charges18 targeting John Lee, and John Lee

alone19. The timely hit raised those stakes and fears, monetizing a nolle’s value proposition to play

trump card to catch Lee’s ante. John Lee lead a wealthy life, his gratitude was a worthwhile target.

Judges seem to close their eyes and noses, when stuff starts smelling: professional bar courtesy.

Suddenly, quality arguments and weighty law Zabel & Benjamin so preciously had labored

on hit: BINGO. Lee’s June 2001 SOL Motion would do the trick, better yet, to get it mooted by

nolle20 prior to a potentially lawful ruling would keep benefits exclusive and far away from

unworthy aliens on CJA. The SOL motion would equally remain concealed; Appendix G

demonstrates appellant’s futile attempt to uncover the secret. The bald eagle got diarrhea, but

Lee was cleansed. Appellant submits that “his” S1 INDICTMENT, with identical charges as Lee’s

18:1341.F FRAUDS AND SWINDLES

(3s)







TELEVISION

(3ss-4ss)






18:1341.F FRAUDS AND SWINDLES

(5ss-6ss)






Highest Offense Level (Terminated)

Felony 18 The charged international wire [only LEE was charged with 2 wires] on 6-20-1996 was the wrong

wire but all prior wires in sight, were time-barred; the mailing on 6-28-1996 was neither an interstate

mailing nor furthering a detectable scheme, because the sheet either mailed, vel non, was not part of

a scheme, but a first & last time retroactive voucher to paper an earlier undocumented transaction

over, utterly unplanned, while earlier mailings would be time barred on indictment day 6-14-2001.

19

Nota bene: Lee’s March 22 & 26, 2002 “innocence proffers” were staged as wicked “foreplay” to

add two more similar (“hot air”) charges in Lee’s S2 (3ss-4ss, 5ss-6ss) in early June. Scare mongering

20

Appellant submits that John Lee informed him in 2002, that he incurred almost $800’000 in “legal

fees” to get a full vindication on 7-3-2002, but he was bound to strict confidentiality, with regrets.

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pre-S2, was equally time-barred. Harris, Weddle and Cohen plugged Lee by nolle with scienter that

all federal charges were unreachable and thus invalid on solid grounds. They violated their

affirmative duty to the appellant to disclose the exculpatory issues.

It is reasonable, that Harris and Weddle feared the time-bar argument, rushed to

conclusions, bedazzled and re-bedazzled the grand jury and pushed S/A Connor O’Sullivan into

calumniation over the “Agate” timeline and much more that O’Sullivan knew to be exculpatory for

all the defendants, he knew, and the AUSA knew, they crooked the Grand Jury. Harris pushed him

hard, O’Sullivan is reluctant at first; the GJ transcript is proof for another travesty. Southern District

mockery, the triple-ham procedure, often practiced, never improved. O’Sullivan, a learned CPA,

quit his job; so did Harris presumably to study Talmudic law to learn what could be done ethically

sometimes in the future to address the “devoid of any sense of morals or any sense of honesty or

any sense of integrity” among some prosecutorial operatives. Harris violated.

.Argument

IV

The fourth fundamental claim on this Appeal is based upon the abusive denial by the

District Court of reasonable assistance to uncover original wrongdoing that provided a vicious

basis for a criminal case in which the Court repeatedly denied MOTIONS for Brady materials the

government wanted to keep secret to “save” its fraudulent indictment. The Court denied Motions

for bills of particulars in favor of the dubious accuser, his “government”. It certainly appears likely

that the District Court sought to protect the accuser’s official attorneys, his former colleagues,

from dire consequences over manufactured elements, withheld investigations and forensic

analysis (the Burda Media internal investigations in 1996 by Rogers & Wells and BMI’s audit FY

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1995/96 were among the relevant exculpatory documents withheld despite demands over

demands), dubious theories and far reaching obstructive endeavors. It would have been a “small

step for an impartial judge into the right direction but a big step towards genuine justice

administration” to direct the government to show CAUSE on these four issues and explain why

abusive prosecutors should go sanction-free on proven misconduct (see: Stevens). The Court’s

DENIALS crushed the following reasonable demands deserving resurrection:

1) Presenting a bogus economic victim (Burda Media Inc) and cloaking “BVG: the record speaks

for itself, BMI (Burda Media Inc) did not incur a economic loss from the unethical portions of

their modus operandi, because BMI charged a margin on all expenses regardless of

legitimacy or causation, which allowed BMI to earn substantial revenues from its clients, who

– like in every commercial production endeavor – receive a total product costing, even if

some item had a dubious genesis (Appellant submits that 5% was the maximum slippage at

all relevant times). BVG was a subcontracted “billing agent” in Germany for BMI, and

withholding the existence of BVG, the high fees BVG earned at BMI [who was costumed up by

Mary Jo White’s operatives as a NY charity non-profit in need of German Cash contributions,

when, in fact, BMI paid its own millions to German subcontractors out regular proceeds], was

a constitutional due process violation the government must be directed to explain. The

Court’s denial constitutes abuse of judicial discretion for cause.

2) Presenting a fabricated indictment by all counts: The indictment appears to draw most

language and theory from Rogers & Wells’ Warren Feldman [on staff]; with Feldman’s

corrupted language came deliberate fabrications by R&W concocted despite a “investigation”

at BMI that began July 1996 and turned into BMI’s most expensive and most worthless piece

of “vendor malware” dwarfing the appellants manipulations which caused regular revenue at

BMI. BMI suffered incontrovertible and claw-back-free damages from R&W’s hourly billing

scam of over $2,5 million dollars21, at the end of which R&W asserts willful darkness about

the simple economics of a “Profit Center” subsidiary, like BMI was since 1992. BMI was not

a NINJA type pauper, but a very profitable company, as R&W so dearly found out, a fact that

21

A big chunk of change for a “pauper”, government costumed BMI, which, inter alia, is straight out of

proof box, that this USAO was corrupt for not inquiring about the “referral” received from Rogers &

Wells whose hourly billing to BMI was about to be terminated in 2000 requiring a refreshed from the

prosecution in the format of Grand Jury subpoenas costing BMI dearly.

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renders the indictment wholesome “hogwash”, spoon-fed by Feldman to White’s agents. The

Court’s denial surpassed abuse of discretion for ulterior motives it is sworn not to entertain.

3) Brady violations for cloaking BMI’s ‘96 audit report: The 1996 BMI [local] forensic audit was

performed in New York after my resignation upon orders by acting CEO. The audit was

completed in June 1997. The audit was indubitably withheld by the government (and

obtained in 2004 from German Police files by co-defendant Viertel while subject to correction

inside Coleman’s hoosegow). The prosecution dared to color a NEW YORK audit of a NY

domestic corporation Burda Media Inc: “the German audit” [see AUSA response22 Appendix

B, pg 3) tinting it as if a New York audit done for a NY CEO of a NY corporation was

“unreachable by its agents” when, in fact, R&W had it since June 1997 and kept it away from

prying eyes who could derail a good racket. R&W covered the USAO’s receipt of “BMI’s

financials DNA” by hand delivery in August 2002, just before the trial of Viertel, and probably

as a fig leaf drop–off in case other financials were “lost” by the USAO contained in previous

paper dumps. But that delivery did not cause any substance review of the exculpatory weight,

the government simply claims, that their principal crime theory, “replenishments from

Germany” couldn’t be shaken by a certified and historic chartered result at a NY domestic

corporation for the relevant time to derail their counterfeit, malicious theory.

These balance sheet books constituted the financial snapshot DNA for 1995 and 1996 (as

well as other years). The nature of such a very detailed audit in a white-collar-case is like DNA for

a capital case, because it allows reconstruction of every dollar spent, earned and maybe lost. No

dollar loss was registered23 at BMI under my direction and after, no qualification for a “fraud

reserve” was inserted, because BMI earned revenue from high, even unsupported expenses.

Thus, millions were earned in 1995, a bit less in 1996. That is why the Court’s negation to

ORDER a SHOW of CAUSE widely surpassed its authority, in further aggravation of previously and

absurdly dishonored “DNA”-Audit’s and their intrinsic and case-most-relevant economic value

22 AUSA Cohen was not entitled to new dancing shoes to continue her pearl street waffle when

misleading the USCA2 panel on 9/21/07. The music stopped on receipt of audited balance sheets

on Aug 7 and 8 in 2002, those, Cohan & Harris kept secret to con the Court into a crime theory

long dead. Dead on arrival in Mollo’s building. Dead since 1996.

23 See USCA 2: 11-5442(cr)L Transcript pages (A-157 to A-169)

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message [by certified chartered members under GAAP and Tax German Code], in yet another

refutation. It seems that any and all HLS clones of a class are graduated as jurists, but Havard

won’t vouch that these clones sport a full set of morals or even more prosaic and basic micro-

economic grasp for simple commercial production activities like those at Burda Media New York.

[Lee’s defenders Zabel & Benjamin went on record with amazing prevoyance December

18, 2001 to admonish the prosecution over its unfulfilled obligations addressing24 [A.G.L.H.F.

LLP letter to AUSA Harris, pg 2] what they intended to withhold and later effectively withheld].

4) Wonton FBI “fugitive classification” under Color of law: is a legitimate complaint of

prosecutorial misconduct that must be aired in public and for the benefit of all citizens and

aliens alike in a country that amazingly has the highest arrest quota on earth. Here, the

internal FBI document is telltale. Case 01cr571 was never classified as “fugitive” in Court

records still alive, but AUSA Harris, Weddle, and others employed skullduggery without

hesitance. Appellant relies upon this distinguished Court’s awareness of unlawful methods by

government agents. Thus, a demand to SHOW CAUSE by MOTION is justified when “those get

caught who break laws but were sworn to uphold them”. If there is anything the public can

gain from this case, it is the scofflaw methods by agents or lawyers serving the federal

government who feel immunized from concocting constitutional violations across State lines

resulting in even more constitutional violations in foreign districts for the purpose to

unlawfully induced other agents to waive statutory procedures and due process by use of key,

yet impermissible words: “Fugitive” ( 3 times used, three defendant’s). This fictitious

classification violated US Code 18§1001 three times when “unnamed” FBI scriveners

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inserted “- FUGITIVE –(B) - after each name for an interstate “apprehension” wire in

furtherance of a scheme to obtain bonding money from derogatorily mislabeled “targets” of a

federal persecution (REMINDER: defendants are presumed innocents until proven guilty, and

a “FUGITIVE” label seeks to invalidate and maliciously undercut protections the constitution

provided for). When due process regulations become “just nuisance” to these enabling

zealots who ruthlessly counterfeiting wires in reliance upon “zero backfire” all of their

country’s legitimacy was removed. Lawyers like Harris, Weddle and all supervisor must be

subject to removal from practice, but they flourish because they enjoy equally dishonest

protectors in high places, and highly fearful magistrates (like MJ Vitunac) who won’t sanction

abuse when she it, and when it originates from the Southern District every law-handyman

wants to kowtow. The Court’s denial of my MOTION is repulsive in the face of due process

and calls for the strongest rejection25.

Conclusion

Therefore, appellant prays, that this honorable Panel vacates the judgment of conviction,

dismisses the indictment for lack jurisdiction and misconduct, equal justice concerns and other

structural errors cited above, and decrees all such further relief and sanctions this Court deems

reputationally appropriate and in the interest of justice.

I hereby certify and verify under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct [28 USC §1746(1)].

Executed and Respectfully Submitted on June 26, 2012

/s/ __________________________

Fritz G Blumenberg, Appellant pro se Am Hempberg 2 , D-21224 Rosengarten,

Germany Tel:*494108-534590, Fax 535, [email protected]

Plus APPENDIX

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Those still popular and powerful United States lights “in favor of the government” must be turned

off, as were those of secret Savac policemen in Iran, their MfS counterparts in Stasi-Germany and

those of Gestapo and CIA.

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Certification: 6973 Words

I hereby certify that an electronic copy of this submission and the Appendix was emailed to

Richard Zabel,Esq., Deputy USA SDNY, and Mary-Jo White, Esq. on this day.

/s/

Fritz G Blumenberg

U.S.C.A.2 Case Manager Frank Perez Thank You for electronic filing

second circuit appeal case 11-3300

Documents

contrary intent

pro se appeal

judicial abuse

united states

appellant

emphasis added

burda media

fd weinstein